Read these Terms of Service (“TOS”) carefully. If you purchase a subscription in or are otherwise authorized to use PEER, you are purchasing access to it through a subscription, and you are thus a “Subscriber.” As such, you are agreeing to abide by all terms herein. These TOS constitute an agreement (“Agreement”) by and between the American College of Emergency Physicians (“ACEP”) and each PEER Member.
Section 1: Definitions
1.1 “Account” refers to the Subscription plans and features selected by Subscriber through the ACEP website or Member Care Center at the time of purchase and accepted by ACEP, as such plans and features may change as set forth herein, as recorded by ACEP.
1.2 “Effective Date” refers to the purchase date of the Subscription as listed in the Subscriber’s Account.
1.3 “Materials” refers to written and graphical content provided by or through the Subscription, including, without limitation, video, audio, text, photographs, illustrations, and designs, whether provided by ACEP or any other third party.
1.4 “Subscriber Data” refers to data in electronic form input or collected through the Subscription by or from Subscriber.
1.6 “Subscription” refers to PEER, as purchased by Subscriber or listed in Subscriber’s Account. The Subscription includes such features as ACEP may change from time to time, in its sole discretion.
Section 2: Subscription and Payment
2.1 Subscription. ACEP will provide the Subscription to the Subscriber pursuant to its standard policies and procedures then in effect. Only one individual may access the Subscription at the same time using the same username or password. You may not share your username or password with any other party for the purposes of accessing the Subscription.
2.2 Payment. Subscriber will pay ACEP such Subscription fees as are required in advance of activation of the Subscription.
Section 3: Service Level Agreement
3.1 During the term of this Agreement, ACEP or its subcontractor(s) will make its best effort to ensure that the Subscription is operational and available to Subscriber at least 99.9% of the time.
3.2 Email support: Monitored 8:00 am to 5:00 pm Monday-Friday, email@example.com. Emails received outside of office hours will be collected; however, no action can be guaranteed until the next working day.
Section 4: Materials, Software, and Intellectual Property
4.1 Materials. Subscriber recognizes and agrees that: (i) the Materials are the property of ACEP or its licensors and are protected by copyright, trademark, and other intellectual property laws; (ii) Subscriber may not sell, publish, distribute, retransmit, or otherwise provide access to the Materials to a third party; and (iii) Subscriber does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Subscriber’s use of the Subscription.
4.2 Intellectual Property in General. ACEP retains all right, title, and interest in and to the Subscription, including without limitation all software used to provide the Subscription and all logos and trademarks reproduced through the Subscription, and this Agreement does not grant Subscriber any intellectual property rights in or to the Subscription or any of its components.
Section 5: Online Policies
5.1 TOS. Subscriber will comply with the TOS. In the event of Subscriber’s material breach of the TOS, including without limitation any copyright infringement, ACEP may suspend or terminate Subscriber’s access to the Subscription, in addition to such other remedies as ACEP may have at law or pursuant to this Agreement. Neither this Agreement nor the TOS requires that ACEP take any action against Subscriber or any other customer for violating the TOS, but ACEP is free to take any such action it sees fit.
5.3 Confidentiality. Subscriber shall at all times preserve the confidentiality of his or her account and will not share login or password credentials with any other person.
Section 6: Each Party’s Warrantie
6.1 Subscriber’s Identity. Subscriber warrants that it has accurately identified itself through its Account and will maintain the accuracy of such identification and is an individual 18 years old or older.
6.2 Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
6.3 Disclaimers. Except for the express warranties specified in this Section 6, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND ACEP MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. Without limiting the generality of the foregoing, (i) ACEP HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; and (ii) ACEP does not warrant that the Subscription will perform without error or immaterial interruption.
6.4 Limitation of Liability. IN NO EVENT: (a) WILL ACEP’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER FOR THE SUBSCRIPTION; AND (b) WILL ACEP BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF ACEP IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF SUBSCRIBER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 6, ACEP’s liability will be limited to the maximum extent permissible.
Section 7: Data Management
7.2 Subscriber’s Rights. Subscriber possesses and retains all right, title, and interest in and to Subscriber Data, and ACEP’s use and possession thereof is solely as Subscriber’s agent.
7.3 Retention and Deletion. ACEP will retain all Subscriber Data until erased pursuant its policies that may be in effect from time to time.
Section 8: Term and Termination
8.1 Term. This Agreement will continue for 1 year from the Effective Date or until a later date, at ACEP’s discretion. Subscriber may cancel the Subscription at any time by email. Subscriber will be entitled to a refund if ACEP receives the cancellation within 30 days of Subscription activation and if no CME certificate has been issued for the Subscriber. The amount of the refund will be prorated depending on the Subscriber’s activity and progress within the program.
8.2 Effects of Termination. The following provisions will survive termination of this Agreement: (i) any obligation of Subscriber to pay for Subscription rendered before termination; (ii) Sections 4, 5.2, 6.3, and 7 of this Agreement; and (iii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
Section 9: Miscellaneous
9.1 Notices. ACEP may send notices pursuant to this Agreement to Subscriber’s email address, and such notices will be deemed received 1 day after they are sent. Subscriber may send notices pursuant to this Agreement to ACEPBookstore@acep.org, and such notices will be deemed received 1 day after they are sent.
9.3 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
9.4 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
9.5 Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
9.6 Assignment and Successors. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
9.7 Choice of Law and Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Texas, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Dallas County, Texas.
9.8 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
9.9 Certain Notices. Pursuant to 47 U.S.C. Section 230(d), ACEP hereby notifies Subscriber that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
9.10 Government Restricted Rights. The Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Services by the U.S. Government constitutes acknowledgment of ACEP’s proprietary rights therein.
9.11 Export. Certain Services are subject to export controls of the United States and other countries (“Export Controls”). Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the software or technology to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Subscriber represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the software or technology for any Prohibited Uses; and that it will comply with Export Controls.
9.13 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.