For each Nursing Program Order for APEA Products and Services hereunder, the Parties shall execute an Order Form which shall include (i) a list the Products; (ii) a mutually agreeable description of Services to be performed, including the obligations of the Parties; and (iii) Product and Services fees due under the Order Form, including any specific invoicing periods. As APEA Product pricing is per Student, Nursing Program shall promptly notify APEA of any new Student(s) joining the program after Nursing Program has commenced use of the Products and Nursing Program shall be responsible for payment of additional fees for any such additional Student(s) in accordance with the Order Form.

Product and Services fees noted in the applicable Order Form are due and payable net thirty (30) days from the invoice date. Notwithstanding the foregoing, APEA reserves the right to require pre-payment of all or a portion of the Product and Services fees prior to delivering or providing access to Products and/or prior to delivering Services. Any amounts which are not paid when due shall bear interest at one and one half percent (1.5%) per month or the maximum legal rate, if less. In addition, APEA reserves the right to suspend access to APEA web-based Products and Services in the event that if Nursing Program is more than ninety (90) days past due on any undisputed amounts, and Nursing Program agrees that APEA shall not be liable to Nursing Program or to any third party for any liabilities, claims or expenses arising from or relating to termination or such suspension of access to APEA Products and Services.

All fees noted on a Order Form are exclusive of any sales, use, value added or other taxes, fees, or costs which may be imposed, levied, or assessed against the sale, licensing, delivery, or use of Product(s) or Services. Nursing Program shall pay all taxes that may become due as a result of this Agreement, excepting only APEA’s income and payroll related taxes. APEA shall invoice Nursing Program for all such taxes, which may be paid by APEA unless, prior to Product delivery or commencement of applicable Services, Nursing Program provides APEA with a valid tax-exempt certificate.

4. PROPRIETARY RIGHTS

Nursing Program acknowledges that the Products and Services materials, as well as APEA’s proprietary information, tools, methods, programs, software, graphics, user interfaces, logos, trademarks, anything developed or delivered by APEA under this Agreement, and all prior developed intellectual property, are the sole and exclusive intellectual property of APEA or its licensors (“APEA IP”) and, other than as expressly set forth in this Agreement, no license or other rights in or to the Products or Services are granted to Nursing Program, and all such licenses and rights are hereby expressly reserved by APEA. All APEA consulting Services shall be delivered on a non-work for hire basis. Nursing Program’s limited right to use such APEA IP shall be governed by the licensing, confidentiality, and other use restriction provisions of this Agreement. APEA’s names, and its product and Services names, are trademarks and service marks belonging to APEA. All rights reserved. APEA Products and Services are protected by copyright and no part of the APEA Products or Services may be resold, licensed, copied, transferred, distributed, stored, reproduced, or disclosed to any third party without written permission of APEA. Nursing Program is not permitted to use any APEA Services material or content for the delivery of its own presentation or workshop. To the extent that any APEA IP is included in any consulting/workshop Services, Nursing Program may use such APEA IP pursuant to the License and solely for its own internal business purpose, provided that use of any APEA proprietary software shall not be included in such License and is restricted solely to use by APEA in connection with APEA’s delivery of such consulting/workshop Services. APEA reserves the right to seek all legal and equitable rights and remedies available to APEA for any Nursing Program use of APEA IP in violation of this Agreement.

5. WARRANTIES AND DISCLAIMERS

(a) APEA warrants that (i) for 90 days after delivery of, or Nursing Program receiving access to, the Products, the media and documentation supplied by APEA to Nursing Program shall be free from material defects in materials and workmanship under normal use and that the Products shall perform in all material respects in accordance with the documentation provided (“Product Warranty”) and (ii) Services shall be performed in a good workmanlike manner consistent with generally accepted industry standards (“Services Warranty”). The foregoing Product Warranty and Services Warranty shall not apply if the Product or Service, as applicable, has been subject to misuse or modification (other than modification by APEA or its licensors) and the nonconformance can be demonstrated on an unmodified version of such Product or Service. For a breach of Product Warranty which is reported during the Product Warranty period, APEA shall correct or replace the Product or, if such is not practical in APEA’s judgment, refund amounts paid for such defective Product. For a breach of Services Warranty which is reported to APEA no later than thirty (30) days following performance of the defective Service, APEA shall re-perform such defective Service at no cost to Nursing Program or, if re-performance is not practical in APEA’s judgment, provide to Nursing Program a refund for amounts paid for the defective Service. Except for the foregoing warranty, APEA’s Products and Services are provided “as-is” without warranty of any kind.

(b) Nursing Program acknowledges that Products are intended solely for academic purposes and that Authorized Users should NOT rely on the Products as a reference for administering medications or patient care or as a substitute for professional medical judgment. APEA does not assume, and hereby expressly disclaims, any responsibility for, or warranty regarding, Nursing Program’s ability to satisfy or meet any accreditation requirements. NURSING PROGRAM IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR MONITORING AND VERIFYING ITS INPUT TO THE APEA PRODUCTS AND SERVICES (INCLUDING WITHOUT LIMITATION NURSING PROGRAM DATA) AND FOR DETERMINING THE ACCURACY, COMPLETENESS OR APPROPRIATENESS OF ANY FINANCIAL, CLINICAL OR MEDICAL INFORMATION OR OTHER OUTPUT PROVIDED BY APEA PRODUCTS AND SERVICES. APEA shall be entitled to rely on the accuracy, truthfulness and completeness of all Nursing Program input into APEA Products and Services (including Nursing Program Data), and Nursing Program hereby releases APEA from any claims arising out of such improper reliance on Products or Services.

(c) THIS SECTION SETS FORTH APEA’S SOLE LIABILITY AND NURSING PROGRAM’S SOLE REMEDY FOR BREACH OF WARRANTY. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS OR IMPLIED. APEA DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THAT THE PRODUCTS OR SERVICES SHALL MEET NURSING PROGRAM’S SPECIFIC REQUIREMENTS, BE ERROR FREE OR UNINTERRUPTED, NOR SHALL APEA BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT, OR DESTRUCTION OF NURSING PROGRAM DATA, FILES OR PROGRAMS. APEA shall have no obligations under this Section 5 if the breach is caused by Nursing Program’s improper use or modification of a Product.

6. CONFIDENTIAL INFORMATION AND Nursing Program Data.

(a) The Parties agree that (i) this Agreement, any Schedules, Order Forms, and Orders, and the Products and Services provided hereunder and any information Nursing Program receives or reviews concerning APEA, including, but not limited to, any information concerning APEA's past, present and future research, marketing, development, operations and business activities, information regarding Products or Services, methods of database creation, APEA's translation, standardization, enhancement, and data analysis techniques, APEA’s data reporting methods and formats, APEA’s software tools for report creation, distribution and retrieval, associated algorithms, tools, programs, software architecture and technology, and any other information or material proprietary to APEA or its licensors of which the Nursing Program may obtain knowledge or access from APEA during APEA's performance hereunder is confidential information of APEA (collectively, "APEA Confidential Information"); and (ii) personal or academic information regarding Students and information about Nursing Program submitted to APEA or any APEA System by Nursing Program or Nursing Program Staff or Students (“Nursing Program Data”) is confidential information of Nursing Program (collectively, “Nursing Program Confidential Information”); and (iii) each Party may receive or have access to confidential and proprietary information (“Receiving Party”) of the other Party (“Disclosing Party”), whether orally or in writing, that is marked as confidential or that should reasonably be understood to be confidential given the nature of the information (collectively, “Confidential Information”). Confidential Information shall not include any information that can be shown by the Receiving Party to be (i) generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) independently developed by the Receiving Party without any breach of any obligation owed to the Disclosing Party; or (iv) received from a third party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written consent. Each Party shall protect the Confidential Information of the other Party in the same manner that it protects its own confidential and proprietary information, but in no event less than reasonable care. If Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent permitted by law). Each Party reserves the right to seek injunctive relief, in addition to any other remedies available at law, to protect its Confidential Information.

(b) APEA and its licensors may compile and use statistical, diagnostic, technical or general usage information related to its Systems, and may in some cases make such information publicly available, provided that such information is aggregated, de-identified, and/or made anonymous and does not identify Nursing Program Confidential Information, personally identifiable Nursing Program Data or include Nursing Program’s name. APEA retains all intellectual property rights in such aggregated and de-identified information.

Subject to this Section 7, if an action is brought against Nursing Program claiming that Products, when used in accordance with APEA Product manuals and guides and this Agreement, infringes a valid patent or registered copyright, or misappropriates a trade secret, APEA shall defend Nursing Program at APEA's expense and pay the damages and costs finally awarded against Nursing Program in relation to the infringement or misappropriation action, but only if (i) Nursing Program notifies APEA promptly upon learning that an action has been or might be asserted, (ii) APEA has sole control over the defense of the action and any negotiation for its settlement or compromise, and (iii) Nursing Program fully cooperates in APEA’s defense of such action. APEA shall have no obligation or liability under this Section 7 if the action results from (i) a modification or improper use of such Product, (ii) the failure to promptly replace a Product with a new Product when notified by APEA that the replacement Product would have eliminated the actual or alleged infringement or misappropriation, (iii) the use of any non-APEA product, information, design, specification, instruction, software, data, or material in combination with the Product where such infringement would not have arisen but for such combination, or (iv) APEA’s compliance with designs, plans or specifications furnished by Nursing Program. If a covered claim described in this Section may be or has been asserted, Nursing Program shall permit APEA, at APEA's option and expense, to (i) secure the right for Nursing Program to continue using the Product, (ii) replace, modify, or create a workaround for the Product to eliminate the infringement or misappropriation while providing func­tionally equivalent performance, or (iii) terminate the applicable License and, upon Nursing Program’s return of the infringing Product, refund to Nursing Program the amount actually paid to APEA for such Product. THIS SECTION 7 SETS FORTH APEA’S SOLE LIABILITY AND NURSING PROGRAM’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.

UNDER NO CIRCUMSTANCE SHALL EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, OR AFFILIATES EXCEED IN ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT THE TOTAL AMOUNT THAT NURSING PROGRAM ACTUALLY PAID TO APEA FOR THE SPECIFIC PRODUCT OR SERVICE WHICH IS THE SUBJECT OF SUCH ACTION OR PROCEEDING IN THE PRIOR TWELVE (12) MONTHS, PROVIDED, HOWEVER, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OR RELIEVE NURSING PROGRAM OF ITS OBLIGATION TO MAKE FULL PAYMENT OF ALL AMOUNTS DUE HEREUNDER.

Nursing Program acknowledges and understands that APEA discourages use of APEA Products, Services and Assessments as the sole criterion to determine student enrollment, expulsion, advancement, graduation, or readiness to sit for any licensure exam (“High-Stakes Use”). APEA disclaims any and all responsibility, liability, or obligation in connection with any High-Stakes Use, policy or practice by Nursing Program. Nursing Program shall defend, indemnify, and hold harmless APEA and its affiliates, directors, employees, agents, successors and assigns from and against any claim, liability, damage, cost or expense arising out of or related to Nursing Program’s High-Stakes Use of any APEA Products, Services or Assessments.

If Nursing Program is purchasing APEA Remote Proctoring Services under this Agreement, APEA proctored assessments administered by Nursing Program may be proctored with use of APEA Remote Proctoring Services described at https://www.apea.com/remote-proctoring the entirety of which is incorporated by reference in full. APEA Remote Proctoring Services are an additional measure of test security designed to enhance the overall integrity of the testing process for APEA’s proctored exams and, accordingly, use of APEA Remote Proctoring Services does not relieve Nursing Program of its proctoring obligations or duty to ensure a secure test environment when administering APEA assessments. Additional fees for APEA Remote Proctoring Services, if any, are included on a corresponding Order Form attached to this Agreement.

APEA agrees that it will provide the services contemplated hereunder in compliance with all applicable federal, state and local laws and with applicable Nursing Program standards, including the Web Content Accessibility Guidelines 2.0 Level AA and Section 508 of the Rehabilitation Act as applicable. APEA shall, within reason, respond to and resolve all accessibility complaints, and, upon request, shall provide Nursing Program with its accessibility testing results and written documentation verifying accessibility.

(a) Restrictions. Nursing Program agrees that the APEA Products and Services shall not be used, directly or indirectly, to train, develop, enhance, inform or improve any artificial intelligence (“AI”) tools, systems, models, or algorithms. This prohibition applies irrespective of whether the AI tools, systems, models, or algorithms are developed for commercial or non-commercial purposes, and regardless of the specific AI application or domain. Nursing Program shall take all precautions to ensure that the APEA Products and Services are utilized, directly and indirectly, only in a manner that conforms to the foregoing sentence. APEA reserves the right to monitor your use of the Products and Services and take appropriate legal action, including immediately suspending and/or indefinitely terminating Nursing Program’s and/or Authorized User access to APEA Products and Services without refund due to a violation of this AI prohibition provision. If any provision of this AI prohibition is deemed to be invalid or unenforceable, the remaining provisions shall continue to be valid and enforceable to the fullest extent permitted by law.

(b) APEA Generative AI Services Terms. Certain APEA Products and Services contain generative AI features, applications, and tools intended to generate content within the APEA Products and Services (“ATI Generative AI Services”). The use of such APEA Generative AI Services may require that you provide input into the APEA Generative AI Services (“Input”) and receive output from the APEA Generative AI Services based on the Input (“Output”). When you use APEA Generative AI Services, you understand and agree: (i) Output may not always be accurate; you should not rely on Output from APEA Generative AI Services as a sole source of truth or factual information, or as a substitute for professional advice, (ii) you must evaluate Output for accuracy and appropriateness for your use case, including using human review and verification as appropriate, before using or sharing Output from the APEA Generative AI Services, and (iii) you must not use any Output relating to a person for any purpose that could have a legal or material impact on that person, such as making, educational, employment, legal, medical, financial, or other important decisions about them.

(a) No Agency. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.

(b) Force Majeure. Neither Party shall be considered in breach of its obligations under this Agreement due to any failure to perform such obligations arising out of causes beyond the reasonable control, and without the fault or negligence, of such Party. Such causes shall not excuse Nursing Program from paying accrued amounts due to APEA through any available lawful means acceptable to APEA. If any such causes continue to prevent or delay performance for more than one hundred eighty (180) days, APEA may terminate this Agreement, effective immediately upon notice to Nursing Program.

(c) Notice. All notices or approvals required or permitted under this Agreement shall be given in writing and signed by the authorized representatives of the Parties hereto. All such notices shall be hand delivered or sent to the Parties’ respective addresses first set forth above or to such other address as either Party may specify by written notice to the other. No failure or delay by either Party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing.

(d) Amendments. This Agreement may be superseded or modified solely by written agreement signed by the authorized representatives of both Parties hereto, which specifically acknowledges the existence of this Agreement and that it is being superseded or modified by the terms of such subsequent written agreement.

(e) Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the state of Massachusetts, U.S.A., excluding its conflict of law principles, and consent to exclusive jurisdiction in the state and federal courts located in Middlesex County in any action related to this Agreement. In the event of any action related to this Agreement, the court shall have the power to award costs and attorney’s fees to the prevailing Party in such action. The Parties specifically agree to exclude the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act in the form adopted by any state from governing this Agreement and any transaction between the Parties that may be implemented in connection herewith. All provisions of this Agreement that by their nature are intended to survive expiration or termination shall survive.

(f) Assignment. Nursing Program may not assign any of its obligations, rights or remedies hereunder, in whole or in part, without the express written approval of APEA.

(g) Restricted Government Rights. The Products were developed solely at private expense, contain "restricted computer software" submitted with restricted rights in accordance with the US FAR 52.227-19 (a) through (c) of the Commercial Computer Software License (Dec 2007) Clause and its successors, and in all respects is proprietary data belonging to APEA and/or its suppliers. For US Department of Defense units, the Products are considered commercial computer software in accordance with US DFARS 227.7202-3 and its successors, and use, duplication, or disclosure by the US Government is subject to the restrictions set forth herein.

(h) Publicity. Nursing Program permits APEA to use Nursing Program’s name and logo in APEA’s list of customers and APEA Complete Partnership customers, including but not limited to in APEA’s marketing and website materials, provided that APEA shall not include any statement indicating Nursing Program’s endorsement of APEA or any APEA Product or Service without Nursing Program’s express written authorization. Any use beyond the foregoing shall require Nursing Program’s prior written permission.

(i) Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

(j) Export Regulations. Nursing Program acknowledges that APEA deliverables are subject to export controls and agrees to strictly comply with all applicable U.S. export controls and regulations and will not export any APEA deliverables outside of the U.S.

(k) Feedback. APEA has not agreed to and does not agree to treat as confidential any suggestion, enhancement request, customization request, recommendation or idea for improving or otherwise modifying any of APEA’s Products or Services (“Feedback”) that Nursing Program or any Authorized Users provide to APEA. Nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict APEA’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Nursing Program or any Authorized User.

(l) Entire Agreement. The terms set forth herein constitute the entire agreement between the Parties with respect to Nursing Program’s procurement and use of Product(s) and Services from APEA. This Agreement shall override and replace all terms contained in any Nursing Program purchase order accepted by APEA. These terms supersede and exclude all prior or contemporaneous proposals, understandings, agreements, negotiations, and representations, whether oral or written, with respect to the subject matter of this Agreement.