This Enterprise Sales Agreement, dated as of September 1, 2022 (this “Agreement”), is prepared by Tazkai, LLC d/b/a Nursing.com (“Nursing.com”), for Enterprise Companies (“Company”, and together with Nursing.com, the “Parties”, and each, a “Party”).
WHEREAS, Nursing.com is in the business developing and providing access to nursing study materials, curriculum and programing (collectively the “Nursing.com Curriculum”); and
WHEREAS, Nursing.com makes the Nursing.com Curriculum available through the Nursing.com website, digital experiences, social media platforms, mobile apps and other products and services that are part of Nursing.com’s platform (the “Platform”).
WHEREAS, Company provides education services to nursing students;
WHEREAS, as part of its provision of education services, Company wishes to provide its students access to the Platform;
WHEREAS, Nursing.com is willing to provide students of the Company (each a “Company User” and collectively “Company Users”) access to the Platform on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Purchase of Subscriptions to the Platform. Nursing.com shall sell to Company, and Company shall purchase from Nursing.com, subscriptions (each a “Subscription”) that provide Company Users access to the Platform. Each Subscription shall provide a single Company User access to the Platform for an established term of 1 month, 6 months, 12 months, or 24 months. The purchase price for each Subscription is set forth on Exhibit A. Each Subscription is subject to the terms and conditions set forth in this Agreement.
2. Terms of Use. Each Subscription is nontransferable and may only be used by one Company User. Except as expressly set forth in this Agreement, each Subscription shall be subject to the Terms of Use, and any revisions thereto, published at www.nursing.com/terms-of-use (the “Published Terms of Use”). Any conflict between this Agreement and the Published Terms of Use shall be resolved in favor of this Agreement.
3. No Guarantee. The money back guarantee contained in the Published Terms of Use, if any, shall not apply to the Company Users or any Subscriptions purchased under this Agreement.
4. Termination of Subscription. Nursing.com reserves the right to terminate any Subscription at any time if any Company User violates the Published Terms of Use or otherwise engages in improper conduct as determined in the sole and absolute discretion of Nursing.com.
5. No Refunds. Company agrees and acknowledges that Nursing.com will not issue refunds for any reason after the purchase of a Subscription.
6. Payment Terms. Company shall make payment according to agreed upon invoice details. Subscriptions will only be activated, and a Company User will only have access to the Platform, after payment has been made for the Company User’s Subscription.
7. Indemnification. Company shall indemnify, defend and hold harmless Nursing.com and its officers, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party arising out of or occurring in connection with Company Users’ use of the Platform or Company’s negligence, willful misconduct or breach of this Agreement. Company shall not enter into any settlement without Indemnified Party’s prior written consent.
8. Termination. In addition to any remedies that may be provided in this Agreement, Nursing.com may terminate this Agreement with immediate effect upon written notice to Company, if Company: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
9. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
10. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
11. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
13. Assignment. Company shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Nursing.com. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Company of any of its obligations hereunder. Nursing.com may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Company’s prior written consent.
14. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
15. No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person, including the Company Users, any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
16. Choice of Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
17. Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, in any forum other than the state and federal courts located in Collin County, Texas, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the state and federal courts located in Collin County, Texas. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
18. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.