What these Terms cover. These are the terms on which we, Oxford Medical Simulation Inc. (“OMS”), agree to supply our Software and Services to you, the party wishing to use the OMS Software and Services (the “Client”, “you”, “your”), in those circumstances where we have not signed a written contract with you (the Terms).

When these Terms take effect. You will be bound by these Terms if at any time you and OMS do not have a written agreement in place to govern your use of the OMS Software and Services, and you:

• accept any OMS quote;
• pay any OMS invoice; or
• download, install or use any OMS Software or Services.

The date on which you first do any of these things, and on which these Terms will first apply, will be the “Subscription Start Date”.

How these Terms work. Please read these Terms carefully. These Terms tell you how OMS will provide the Software and Services to you, what your obligations are to OMS, how OMS may change or end the agreement under these Terms, and other important information. By accepting the Subscription, downloading or installing the Software, or beginning to use our Services, you are agreeing to be bound by these Terms. These Terms will apply to the exclusion of any other terms or conditions which you may seek to apply, impose, or incorporate, either expressly or impliedly, in any form and by any means at any time, without our express written consent.

Defined Terms. Some capitalised words and phrases (such as ‘Software’ or ‘Subscription’) in these Terms have defined meanings. A list of the meanings of these defined terms can be found in the Definitions Schedule at the end of the Terms.

Any express written agreement will override these Terms. If at any point (whether before or after the start of your Subscription Term) we both sign a written agreement in relation to your use of the OMS Software and Services, that written agreement will, from its effective date, supersede and take precedence over these Terms. Any agreement between us based on these Terms will be considered terminated on the effective date of that written agreement.

INFORMATION ABOUT US AND HOW TO CONTACT US

Who we are. We are Oxford Medical Simulation Inc. Our registered office is at 240 Elm Street, 2nd and 3rd Floor, Suite 226, Somerville, MA 02144.

How to contact us. You can contact us by writing to us at [email protected].

SUBSCRIPTION TERMS

1. Provision of Software and Services

1.1 OMS will provide you with copies of the Software via the OMS website for use during the Subscription Term by:

(a) you; and

(b) Client End Users, subject to the End User Limits.

1.2 Each Client End User will be permitted during the Subscription Term to use the Software and access the Services subject to and in accordance with the terms of the EULA. You shall take all reasonable steps to ensure the compliance of each Client End User with the EULA and shall be liable under these Terms for any breach by any Client End User of the terms of the EULA.

1.3 OMS will provide technical support to you and to End Users during the Subscription Term in respect of the Software and the Services in accordance with our Standard Support Terms, available at https://oxmedsimdev.wpengine.com/resources/support-terms/.

1.4 OMS will provide the Services to you and the Client End Users on these Terms or the terms of the EULA, as applicable, using reasonable skill and care and in a professional manner. OMS shall use reasonable commercial efforts to ensure that the Services are always available. However, OMS gives no warranty as to the availability of the Services at any particular time or for any defined percentage of time during the Subscription Term. OMS will use reasonable efforts to provide notice of any scheduled downtime of the Services to you in advance.

1.5 OMS will take reasonable commercial steps to ensure that the Software and Services do not contain any malicious software.

1.6 You take responsibility for the selection of the Software and Services to achieve your intended results and acknowledge that the Software and Services have not been developed to meet your individual requirements.

1.7 Except to the extent set out in these Terms, you and your Client End Users will be responsible for providing and maintaining all network services, modems, servers, operating systems or any other equipment or computer hardware or software required to operate the Software and Services at your own cost. OMS accepts no liability for any inability of your or your Client End Users to access the Software or Services arising from any failure of any such equipment or services.

1.8 EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS. OMS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTY ARISING BY STATUTE OR OTHERWISE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. OMS HEREBY EXCLUDES ALL IMPLIED WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR PARTICULAR PURPOSE, SPECIFIC OR OTHERWISE. OMS DOES NOT WARRANT THAT THE OMS SERVICES WILL MEET ALL OF YOUR REQUIREMENTS OR THAT THE USE OF THE OMS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

1.9 You will be responsible for ensuring safe operation of the Software and Services in accordance with equipment manufacturers’ guidance and taking account of all other relevant considerations.

2. Licence

2.1 In consideration of the Fees paid by you to OMS, OMS grants to you during the Subscription Term a non-exclusive, non-transferable license to use the Software and Services, and to distribute copies of the Software to Client End Users subject to the End User Limits (the License).

2.2 In relation to scope of use under the License:

(a) for the purposes of Section 2.1, use of the Software shall be restricted to distribution and use of the Software in object code form by:

(i) you in accordance with these Terms; and

(ii) by Client End Users in accordance with the EULA;

(b) you may not use the Software other than as specified in Section1 and Section 2.2(a);

(c) you may make one backup copy of the Software for backup and archival purposes, provided that such backup copy must be deleted or destroyed upon expiration or termination the Subscription Term; and

(d) except as expressly stated in this Section2, you will have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by you.

2.3 You may not:

(a) sub-license, assign or novate the benefit or burden of the License in whole or in part; or

(b) deal in any other manner with any or all of your rights and obligations under these Terms, without the prior written consent of OMS.

2.4 You must:

(a) ensure that the number of Client End Users using the Software does not exceed the End User Limits;

(b) notify OMS as soon as you become aware of any unauthorized use of the Software by any person; and

(c) if you wish to distribute copies of the Software to additional Client End Users beyond the End User Limits, notify OMS and pay any additional Fees in respect of the additional Client End Users.

3. OMS Create

3.1 Where you are granted access to OMS Create, the provisions of this Section 3 will apply.

3.2 You may only provide access to OMS Create for Faculty End Users and Admin End Users. Student End Users are not permitted to access or use OMS Create.

3.3 You may create Client Scenarios using OMS Create at any time during the Subscription Term. Except for Client Shared Scenarios (which will be subject to Section 3.7, below):

(a) Client Scenarios will only be available for editing and use by you, and, where selected to be Active Scenarios, for use by Student End Users; and

(b) on the termination or expiry of the Subscription Term (however occurring), you and OMS will agree, acting reasonably, whether OMS will retain any or all of the Client Scenarios on its systems, and for what duration. Any Client Scenarios which the parties do not agree will be retained will be deleted within a reasonable period of time after the termination or expiry of the Subscription Term.

3.4 Your Student End Users may access any Scenarios in the OMS Create Shared Library for learning purposes using the OMS Software and Services (including for PPU Play), for as long as you have access to OMS Create under these Terms.

3.5 You may at any time use the relevant facility in OMS Create to select Active Scenarios from any Client Scenarios, up to the Active Scenario Limit.

3.6 You agree that (subject to Section 14.2) OMS gives no warranties in respect of, and accepts no liability for, the content, accuracy or performance of any Shared Scenarios (including any Client Shared Scenarios).

3.7 Where you select to share any Client Scenario as a Client Shared Scenario using OMS Create, you may do so at any time, provided that:

(a) you agree that all Client Shared Scenarios will be available for review, editing and use by OMS and all other OMS customers with access to OMS Create via the OMS Create Shared Library;

(b) once you share a Client Shared Scenario, OMS may at any time remove the Client Shared Scenario from the OMS Create Shared Library, at the sole discretion of OMS, and without notification to, or permission of, you. The removal will not affect the relevant Client Scenario from which the Client Shared Scenario was derived;

(c) the provisions of Section 7.6 will apply in respect of all Client Shared Scenarios;

(d) you may, subject to Section 7.6, request that any Client Shared Scenario be removed from the OMS Create Shared Library by giving OMS at least 60 days’ written notice. OMS will remove the identified Client Shared Scenario from the OMS Create Shared Library on or before the effective date of such notice. OMS will not be obliged to remove any other Scenario developed by OMS or any OMS customer which is based on, or incorporates any element of, the Client Input contained in the removed Client Shared Scenario.

3.8 You shall not use any Know-how derived from the use of OMS Create for any commercial purposes, including (without limitation) the use, sale or licensing of such Know-how to develop, or assist the development of, any product or service which may be reasonably expected to compete with any OMS software or services.

4. Maintenance releases

4.1 OMS will, during the Subscription Term, use reasonable efforts to provide you with all Maintenance Releases generally made available to its customers. OMS warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software or the Services. You must install all Maintenance Releases as soon as reasonably practicable after receipt.

5. Your general obligations

5.1 You shall:

(a) cooperate with OMS and provide it with, or procure for it, such information, access and assistance as OMS shall reasonably require to enable it to provide the Services;

(b) without affecting your other obligations under these Terms, comply with all Applicable Laws with respect to your activities under these Terms;

(c) carry out all of your other responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, OMS may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) obtain and shall maintain all necessary licenses, consents, and permissions necessary for OMS, its contractors and agents to perform their obligations under these Terms, including without limitation the Services;

(e) ensure that the Software is used in a proper manner in accordance with the Documentation, by competent trained employees only or by persons under your supervision;

(f) ensure that your network and systems comply with the relevant specifications provided by OMS from time to time;

(g) be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing your network connections and telecommunications links from your systems to OMS’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the your network connections or telecommunications links or caused by the internet;

(h) maintain appropriate security in respect of all copies of the Software and of your databases and computer records in accordance with best computing practice;

(i) not request, permit or authorise anyone other than OMS to provide any maintenance services in respect of the Software;

(j) cooperate fully with OMS’ personnel in the diagnosis of any error or defect in the Software;

(k) make available to OMS free of charge all access, information facilities and services strictly to the extent required by OMS to enable it to perform its obligations under these Terms; and

(l) provide such telecommunication facilities and connections as are reasonably required by OMS for remote testing, diagnostic and maintenance purposes, at your expense.

6. Payment

6.1 OMS will invoice you for the Fees at the intervals set out in your Subscription, or otherwise at periods decided by OMS, acting reasonably. All undisputed invoices are due within 30 days. All payments will be made to OMS by electronic transfer in US Dollars to the bank account nominated in writing by OMS.

6.2 If you receive an invoice which you reasonably believe includes a sum which is not valid and properly due:

(a) you shall notify OMS in writing as soon as reasonably practicable;

(b) your failure to pay the disputed Fees shall not be deemed to be a breach of these Terms;

(c) you shall pay the balance of the invoice which is not in dispute by the due date for payment of the invoice;

(d) to the extent that you are obliged, following resolution of the dispute, to pay an amount, then OMS may charge interest in accordance with Section 6.3 from the original due date until the date of payment; and

(e) once the dispute has been resolved, where either party is required to make a balancing payment, it shall do so within 14 Business Days and, where OMS is required to issue a credit note, it shall do so within 14 Business Days and shall credit interest at the rate stipulated in Section3 below.

6.3 If you fail to make a payment due to OMS under these Terms by the due date, then, without limiting OMS’ remedies under Section 11 (Duration, Option Period, and termination), you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Section 6.3 will accrue each month at 1.5%, or the maximum rate allowed under law, whichever is greater, to any unpaid balance.

6.4 All Fees are exclusive of VAT, which shall be payable where applicable as set out in the relevant invoice. Except as explicitly set forth in these Terms, each party will be solely responsible for all taxes, charges, and assessments applicable to its own activities, including without limitation taxes on its net income, taxes relating to its employees, and taxes on any property it owns or leases.

7. Intellectual Property Rights

7.1 All Intellectual Property Rights in the Software and Services (including the Documentation and any Maintenance Releases) are and shall remain the property of OMS or its licensors (as the case may be). Except as expressly set out in these Terms, these Terms do not grant any rights to, under or in any Intellectual Property Rights or any other rights or licenses in respect of the Software and Services. OMS retains all Intellectual Property Rights not expressly granted herein.

7.2 OMS warrants that it has all the rights in relation to the Software and Services necessary to grant the rights it grants under these Terms.

7.3 OMS will, at its own expense, defend or, at its option, settle, any third party claim, suit, or proceeding (collectively, “Action”) brought against you to the extent such Action arises out of, or in connection with, the receipt, use or supply of the Software and Services. OMS will have sole control of any such Action or settlement negotiations, and OMS will pay, subject to the limitations set forth in these Terms, any settlement amounts or final judgment entered against you on such issue in any such Action defended or settled by OMS. You will not, without prior consultation with OMS, make any admission relating to the Action or attempt to settle it. OMS will be relieved of the foregoing obligations unless you notify OMS promptly in writing of such Action, give OMS sole control and authority to proceed as contemplated in this Section 7.3, and give OMS proper and full information and assistance to settle and defend any such Action. If it is adjudicatively determined, or if OMS believes, that the Software or Services infringe any intellectual property right, or if the use of the Software or Services is, as a result, enjoined, then OMS may, at its election, option, and expense: (i) procure for you the right under such intellectual property right to use, as appropriate, the Software or Services; (ii) replace the Software or Services, with other non-infringing suitable Software; or (iii) suitably modify the Software or Services to become non-infringing. The foregoing indemnity will not apply to the extent any such liabilities, costs, expenses, damages or losses arise in relation to any breach by you or any Client End User of these Terms or the EULA, or in relation to any Shared Scenario. The total aggregate liability of OMS under the indemnity given in this Section 7.3 shall be limited to $1,000,000.

7.4 You will own all right, title and interest in and to Client Data. You grant to OMS for the duration of the Subscription Term a non-exclusive, royalty-free license to access, use, modify, and create derivative works from the Client Data for the purpose of providing the Services under these Terms.

7.5 You agree that OMS may collect analytics data relating to the use, performance and other aspects of the Software and Services, including in respect of Client End Users in accordance with the EULA (“Analytics Data”). All Analytics Data shall belong to OMS and you will have no rights in or to such data. OMS will be free (during and after the Subscription Term) to:

(a) use such information and data solely for the improvement of OMS’s products and services, and for development, diagnostic and corrective purposes in relation to OMS’s services and other products, and

(b) disclose such data solely in aggregate or other de-identified form in connection with its business.

7.6 In relation to the use of OMS Create:

(a) you (or your licensors) will retain ownership of all Intellectual Property Rights in the Client Input, and OMS (or its licensors) will own or retain all other Intellectual Property Rights in all Scenarios, and in OMS Create and the OMS Create Shared Library;

(b) where you share any Client Scenario as a Client Shared Scenario using OMS Create, you hereby grant to OMS, effective as of the date of each such conversion, a perpetual, irrevocable, fully paid-up, royalty-free license (including with the right to grant sublicenses to other customers of OMS), to use all Client Input in each Client Shared Scenario for the purposes of creating new scenarios for use on the OMS software and services (including using OMS Create), and to improve the OMS products and services;

(c) you represent and warrant that:

(i) you have all necessary rights in the Client Input to grant the license in Section 7.6(b); and

(ii) you will not, and will ensure that each Client End User will not, use OMS Create (including in any Client Scenario or Client Shared Scenario):

(A) to upload, or create any content which contains any personal data;

(B) in connection with a criminal offense under Applicable Laws or against public order or applicable ethical standards and codes;

(C) for any unlawful purpose whatsoever, including fraud or terrorism;

(D) in any way which is abusive, harmful, threatening or defamatory or any other way that may cause offense;

(E) in any way that could be harmful to OMS or any other user of the OMS Software or Services, or any other systems or data (including uploading any material that otherwise contains a virus or other malicious code);

(F) in any way which breaches or could potentially breach a legal duty to a third party (including a duty of confidentiality), or which infringes or could potentially infringe a person’s right to privacy; or

(G) in any way which promotes discrimination or is likely to incite hatred; or

(H) in any way which may infringe the Intellectual Property Rights of third parties, or which promotes any unlawful act; and

(iii) the use by OMS and its customers of the Client Input in accordance with Section 7.6(b) will not infringe the Intellectual Property Rights, or any other rights, of any third party; and

(d) you shall indemnify OMS on demand and in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis), and all other reasonable professional costs and expenses) suffered or incurred by OMS as a result of any third party claim resulting from any breach by you of Section 7.6(c). The foregoing indemnity will not apply to the extent any such liabilities, costs, expenses, damages or losses arise in relation to any breach by OMS of these Terms. Your total aggregate liability under the indemnity given in this Section 7.6(d) shall be limited to $1,000,000.

8. Rights of Client End Users subject to suspension and termination

8.1 You agree that the individual rights granted to Client End Users under Section 2 are subject to suspension and termination in accordance with the terms of the EULA.

8.2 Where an individual Client End User’s rights under the EULA to use the Software and Services are terminated in accordance with the EULA, you may grant those rights to another Client End User, subject always to the End User Limits.

9. Confidentiality

9.1 “Confidential Information” means any information, including, without limitation, technical information, specifications, source code and supporting documentation, business plans, marketing plans, financial projections and other confidential information owned by or licensed to a party hereto that is identified as proprietary or confidential or provided under circumstances that reasonably indicate that the information is proprietary or confidential. Confidential Information includes oral, visual or machine-readable disclosures that are identified at the time of disclosure as proprietary and reduced to writing within 30 days.  For the avoidance of doubt, Confidential Information does not include any information that the Receiving Party can establish by contemporaneous written documentation to be: (i) already rightfully in the Receiving Party’s possession or rightfully received by the Receiving Party without a nondisclosure obligation; (ii) developed independently by the Receiving Party; (iii) publicly available when received, or thereafter becomes publicly available through no fault of the Receiving Party; (iv) disclosed by the Disclosing Party to a third party without a nondisclosure obligation; or (v) inherently disclosed by a party in the proper exercise of the rights or licenses granted to or by it hereunder. Notwithstanding anything in these Terms to the contrary, Confidential Information may be disclosed pursuant to a lawful subpoena or other legitimate government investigation; provided, however, that the Receiving Party will provide notice of such disclosure to the other party prior to such disclosure, unless such notice is prohibited by law, and will give the other party a reasonable opportunity to object to such disclosure.

9.2 Each party (the “Receiving Party”) hereto agrees not to use any Confidential Information of the other party (the “Disclosing Party”) for any purpose, other than as expressly permitted hereunder or to enforce its rights and perform its obligations hereunder, or disclose any Confidential Information of the Disclosing Party to any third party for any purpose except as otherwise expressly permitted hereunder. Each Receiving Party will use the same degree of care, but no less than reasonable care, to avoid the unauthorized use or disclosure of the Confidential Information of the Disclosing Party as the Receiving Party employs with respect to its own confidential information of like nature and importance.  Each Receiving Party will be responsible for any improper disclosure or use of the Disclosing Party’s Confidential Information by the Receiving  Party or its agents to whom it discloses such Confidential Information, and will limit the disclosure of such Confidential Information to employees and/or independent contractors with a need to know who have been advised of the confidential nature thereof; and agree not to disclose or use such Confidential Information except as permitted by these Terms. Each party agrees to keep the terms and conditions of these Terms confidential and not disclose them to any third party, other than to its financial and legal advisors who have a duty to maintain the confidentiality of such terms and except as expressly permitted under these Terms. Each party undertakes that it will not at any time during the Subscription Term, and for a period of 2 years after termination or expiry of the Subscription Term, disclose to any person any Confidential Information concerning the business, affairs, customer, clients or suppliers or the other party or of any member of the group of companies to which the other party belongs, except as permitted by this Section 9.

10. Data protection

10.1 Each party will comply with its respective obligations, and will provide reasonable assistance to the other party to assist that party in complying with its respective obligations, under any applicable US Data Protection Legislation.

10.2 You understand and agree that OMS is, through its Affiliates, subject to the Data Protection Legislation. You agree to provide reasonable assistance to OMS in complying with the response, mitigation, correction, investigation, and notification requirements of the Data Protection Legislation, as notified to you at any time.

10.3 The parties acknowledge and agree that the exchange of personal Information between the parties does not form part of any monetary or other valuable consideration exchanged between the parties with respect to the Agreement.

11. Duration, Option Period and termination

11.1 Your rights under these Terms will begin on the Subscription Start Date, and will continue for the Subscription Term unless terminated earlier in accordance with this Section 11. The Subscription Term may be amended by written agreement signed by both parties.

11.2 The Subscription Term will expire immediately on the effective date of any written agreement made between you and OMS for the provision of any Software or Services to you by OMS, after which that written agreement (or any successor written agreement) will govern the provision of Software and Services to you by OMS.

11.3 Where no fixed Subscription Term is specified in the Subscription, either party may terminate the Subscription Term by giving the other party 30 days’ written notice at any time.

11.4 Without affecting any other right or remedy available to it, either party may terminate the Subscription Term with immediate effect by giving written notice to the other party, if that party commits a material breach of these Terms which breach is irremediable, or (if such breach is remediable), that party fails to remedy the breach within a period of 30 days after being notified in writing to do so.

12. Effect of expiry or termination

12.1 Termination or expiry of your Subscription Term shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination or expiry.

12.2 On termination for any reason:

(a) all rights granted to you under the License shall cease;

(b) all rights granted to all Client End Users shall cease in accordance with the terms of the EULA;

(c) you shall cease all activities authorised by these Terms;

(d) you will pay OMS any monies due pursuant to these Terms for the Services OMS has completed up to and including the termination date that are not subject to a good faith dispute between the parties;

(e) each party shall return or destroy, at the other party’s direction, all of the other party’s Confidential Information in its possession or control;

(f) OMS will deliver to you any other of your materials of any kind in OMS’ possession or control; and

(g) you shall, and shall procure that all Client End Users will, immediately destroy or return to OMS (at OMS’ option) all copies of the Software then in your or their possession, custody or control and, in the case of destruction, certify to OMS that destruction has been carried out.

12.3 Any provision of these Terms which expressly or by implication is intended to come into or continue in force on or after the termination or expiry of the Subscription Term shall remain in full force and effect after such termination or expiry, including Section 7 (Intellectual Property Rights), Section 9 (Confidentiality), Section 10 (Data protection), this Section 12, Section 14 (Limits of liability), and Section 16 (General provisions).

13. Insurance

13.1 OMS shall, during the Subscription Term, maintain appropriate insurance to cover its liabilities under these Terms.

14. Limits of liability

14.1 SUBJECT TO SECTION 14.2, AND EXCEPT AS EXPRESSLY STATED IN THE EULA:

(a) YOU ASSUME SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM YOUR USE, AND THE USE BY CLIENT END USERS, OF THE SOFTWARE AND SERVICES, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. OMS AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, SUBCONTRACTORS, SUPPLIERS, SUBSIDIARIES AND AGENTS (TOGETHER, THE “OMS ENTITIES”) WILL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO OMS ENTITIES BY YOU IN CONNECTION WITH THE SOFTWARE OR SERVICES, OR ANY ACTIONS TAKEN BY OMS ENTITIES AT YOUR DIRECTION;

(b) NO OMS ENTITY WILL IN ANY CIRCUMSTANCES HAVE ANY LIABILITY FOR ANY LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY YOU (OR ANY PERSON CLAIMING UNDER OR THROUGH YOU, INCLUDING CLIENT END USERS), WHETHER SUFFERED DIRECTLY OR INDIRECTLY OR ARE IMMEDIATE OR CONSEQUENTIAL, AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE HOWSOEVER, WHICH FALL WITHIN ANY OF THE FOLLOWING CATEGORIES:

(i) SPECIAL DAMAGE, EVEN IF OMS WAS AWARE OF THE CIRCUMSTANCES IN WHICH SUCH SPECIAL DAMAGE COULD ARISE;

(ii) LOSS OF PROFITS;

(iii) LOSS OF ANTICIPATED SAVINGS;

(iv) LOSS OF BUSINESS OPPORTUNITY;

(v) LOSS OF GOODWILL; OR

(vi) LOSS OR CORRUPTION OF DATA,

PROVIDED THAT THIS SECTION 14.1(B) SHALL NOT PREVENT CLAIMS FOR LOSS OF OR DAMAGE TO YOUR TANGIBLE PROPERTY THAT FALL WITHIN THE TERMS OF SECTION 14.1(C) OR ANY OTHER CLAIMS FOR DIRECT FINANCIAL LOSS THAT ARE NOT EXCLUDED BY ANY OF CATEGORIES (I) TO (VI) INCLUSIVE OF THIS SECTION 14.1(B);

(c) THE TOTAL LIABILITY OF EACH PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND WHETHER IN CONNECTION WITH THESE TERMS OR ANY COLLATERAL CONTRACT, INCLUDING TO CLIENT END USERS, SHALL IN NO CIRCUMSTANCES EXCEED A SUM EQUAL TO THE TOTAL FEES PAID BY YOU TO OMS UNDER THESE TERMS; AND

(d) YOU AGREE THAT, IN ENTERING INTO THE AGREEMENT UNDER THESE TERMS, EITHER YOU DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OR OF ANY PERSON OTHER THAN THOSE EXPRESSLY SET OUT IN THESE TERMS OR THE SUBSCRIPTION, OR (IF YOU DID RELY ON ANY REPRESENTATIONS, WHETHER WRITTEN OR ORAL, NOT EXPRESSLY SET OUT IN THESE TERMS) THAT YOU SHALL HAVE NO REMEDY IN RESPECT OF SUCH REPRESENTATIONS AND (IN EITHER CASE) THE OMS ENTITIES SHALL HAVE NO LIABILITY IN ANY CIRCUMSTANCES OTHERWISE THAN IN ACCORDANCE WITH THE EXPRESS TERMS OF THESE TERMS.

14.2 The exclusions in Section8 and Section 14.1 shall apply to the fullest extent permissible at law, but nothing in these Terms will exclude liability for:

(a) death or personal injury caused by the negligence of a party, its officers, employees, contractors or agents;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability which may not be excluded by law.

14.3 All dates supplied by OMS for the delivery of the Software or the provision of Services shall be treated as approximate only. OMS shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

15. Amendment of these Terms

15.1 OMS may amend these Terms at any time by posting an updated version of the Terms on the OMS website. If, after an update to the Terms has been posted, you wish to terminate your Subscription Term, you may do so by giving 30 days’ written notice to OMS, provided that the notice of termination is received by OMS prior to the effective date of the amended Terms.

15.2 No amendment of these Terms under Section 15.1 will have any retroactive effect to remove or modify any of your rights without your express written agreement.

16. General provisions

16.1 Export Controls. You will comply with the United States Export Administration Act, War Powers Act, or other law or Executive Orders relating to control of exports or transfer of technology, and the regulations of the United States Departments of State, Commerce and Defense relating thereto. You will not resell or otherwise distribute the Software or Services in any foreign territory where any of the terms of the EULA would be unenforceable, where such terms would not provide the protections to OMS and the OMS Software and Services intended under these Terms, or where there is a significant risk that the OMS Software or Services would fall into the public domain. You will not directly or indirectly import, export, or re-export the OMS Software or Services outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.  You represent and warrant that you are not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders.

16.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.3 Remedies. Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

16.4 Entire agreement. These Terms and any Subscription contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter. These Terms, and the Subscription, apply to the exclusion of any other terms or conditions which you may seek to apply, incorporate or impose, either expressly or impliedly, in any form and by any means at any time, without our express written consent.

16.5 Conflicts within the Terms. In the event of any conflict or inconsistency between different parts of the agreement between you and OMS, the following descending order of priority applies:

(a) the Subscription; and

(b) these Terms.

16.6 Severance. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.

16.7 Third-party rights. OMS Entities may enforce the terms of these Terms subject to and in accordance with this Section 16.7 and these Terms. It is agreed that this clause is intended to confer a benefit on OMS and its Affiliates by making the exclusions and limitations of liability available to them in accordance with this license, provided that the rights of such Affiliates under these Terms shall only be enforceable by you on their behalf. OMS will owe no duty to them to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit. Except as provided in this Section 16.7, a person who is not a party to these Terms shall not have any rights to enforce any of these Terms, other than those rights which are not excludable by law. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under these Terms are not subject to the consent of any person that is not a party to these Terms.

16.8 No partnership or agency. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

16.9 Force majeure. Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one month, the party not affected may terminate the Subscription Term by giving 14 days’ written notice to the affected party.

16.10 Notices. Any notice given under these Terms shall be in writing and sent to a party’s Notice Address. Notices may be given, and shall be deemed received:

(a) by first-class post: 2 Business Days after posting;

(b) by hand: on delivery; and

(c) by email: on receipt of a delivery return email.

This Section 16.10 does not apply to notices given in legal proceedings or arbitration.

16.11 Governing law and Jurisdiction. These Terms and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of the State of Delaware without regard to conflict of law principles. The Parties agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the State of Delaware for the purpose of litigating all such disputes.

SCHEDULE 1 – DEFINITIONS AND INTERPRETATION

1.1 The following definitions and rules of interpretation apply in these Terms.

Active Scenario: any Client Scenario which you select to make available to your Student End Users for use with the OMS Software and Services, using the relevant settings in OMS Create.

Active Scenario Limit: the limit on the number of Client Scenarios which you may select to be Active Scenarios at any one time in accordance with Section 3.5, as set out in the Subscription (if applicable).

Administrator End User: a Client End User who is your employee (or authorised contractor) and who will use the Software or Services to provide administrative services on your behalf.

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.

Analytics Data: has the meaning given in Section 7.5.

Annual License: a 12-month license granted to a Student End User, granting access to a specified sub-set of OMS Scenarios as set out in the Subscription (if applicable).

Applicable Laws: means all applicable laws, statutes and regulations in force at any time.

Business Day: a day other than a Saturday, Sunday or public holiday in the United States when banks are open for business.

Client Data: all data, files, including hypertext mark-up language files, documents, audio and visual information, graphics, scripts, programs, applets or servlets you create, installs, uploads to or transfers in or through the Services or provides in the course of using the Service, excluding identification and other information provided by you relative to Client End Users.

Client End Users: employees, students or other parties employed by, enrolled with or otherwise engaged by you, who use the Software and Services on the terms of the EULA as permitted under these Terms.

Client Input: any pre-existing copyright materials or trade marks owned by, or licensed to, you which you incorporate into any Client Scenarios using OMS Create. 

Client Scenario: a Scenario authored by you using OMS Create.

Client Shared Library: the library of all Shared Scenarios shared by all OMS Clients, available for use on OMS Create.

Client Shared Scenario: a Client Scenario added as a Shared Scenario to the OMS Create Shared Library by you, in accordance with Section 3.7.

Confidential Information: has the meaning given in Section 9.1.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Data Protection Legislation: the US Data Protection Legislation and UK Data Protection Legislation and any other United States or European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Disclosing Party: has the meaning given in Section 9.2.

Documentation: any and all documentation, whether in electronic form or hard copy, provided by OMS relating to the Software and Services, including but not limited to all documentation provided with the Software and through the Service, and on any website owned or operated by OMS.

End User Limits: the limits on the number of permitted Client End Users as agreed in the Subscription. If no End User Limits are set out in a Subscription, then the End User Limits are as applied by OMS at any time.

EULA: the end user license agreement with OMS under which Client End Users access the Software and Services under these Terms, the current version of which is at

Faculty End User: a Client End User who is your employee and who has educational responsibilities in relation to Student End Users.

Fees: the fees payable by you to OMS for the Software and Services, as agreed in the Subscription. If no fees are set out in the Subscription, OMS’ current standard fees (as available from OMS on request at any time) will apply to your use of the OMS Software and Services.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including Know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Know-how: any unpatented technical and other information which is not in the public domain including any trade secrets, and any information comprising or relating to concepts, data, discoveries, formulae, ideas, inventions, methods, research models or specifications.

License: has the meaning given in Section 2.1.

Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by OMS in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Notice Address: for OMS, its registered office, and for you, either: (i) the address to which it has been agreed that invoices will be sent to; or (ii) any email address provided by you to us at any time.

OMS Create: the OMS proprietary application allowing clients to: (i) access all OMS Scenarios and Shared Scenarios (including any Client Shared Scenarios) in the OMS Create Shared Library for reviewing and editing, (ii) author Client Scenarios for use on the OMS Software and Services, and (iii) select Client Scenarios as Active Scenarios (in accordance with Section 3.5).

OMS Create Shared Library: the OMS Shared Library and the Client Shared Library, together available for use on OMS Create.

OMS Entities: has the meaning given in Section 14.1(a).

OMS Scenario: a Scenario created by OMS.

OMS Shared Library: the library of OMS Scenarios which OMS makes available to OMS clients for use on OMS Create.

PPU Play: a single use of any OMS Scenario (or, where you have access to OMS Create, any Active Scenario) available to Client End users. PPU may be accessed using a PPU License, or purchased on a pay-per-use basis, invoiced in arrears by OMS at the rate set out in the Subscription (or at OMS’ current standard fees, if not detailed in the Subscription).

PPU License: a pre-purchased license granting any Client End User a single PPU Play. Each PPU License is valid for 12 months from the PPU Start Date (unless otherwise specified in the Subscription). OMS may, at its sole discretion, extend the expiry date of any PPU License by agreement in writing with you.

PPU Start Date: where PPU Licenses are included in the Subscription, the issue date of the Subscription.

Receiving Party: has the meaning given in Section 9.2.

Scenario: a healthcare simulation scenario created for use with the OMS Software and Services.

Services: The infrastructure and hosted environment, and all other ancillary services, provided and maintained by OMS for the purposes of using the Software, and any data, information and content provided to you or Client End Users through that infrastructure and hosted environment, and any related Documentation.

Shared Scenario: a Scenario created by any non-OMS user of OMS Create, which has been shared by that user into the OMS Create Shared Library for use by OMS and other users of OMS Create.

Software: the version of the OMS virtual reality simulation platform software and the individual simulation scenarios developed by or for OMS for use with the platform software, and any related Documentation, to be provided to you.

Student End User: a Client End User who will use the Software and Services for personal use only.

Subscription: the terms (if any) set out in any invoice or quote delivered by OMS to you prior to your use of the Software and Services.

Subscription Term: the agreed period of your use of the OMS Software and Services, as set out in the Subscription. If there is no specified period in an applicable Subscription, the Subscription Term will begin on the Subscription Start Date and continue until the Subscription Term is terminated in accordance with Section 11.

Tier: a specified level of access to the OMS Software and Services, including OMS Create, as set out in the Subscription.

Tier License: a 12-month license granted to a Student End User, giving access to the OMS Services specified for the applicable Tier.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

US Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the United States including the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time (“CCPA”).

1.2 Section headings shall not affect the interpretation of these Terms.

1.3 The words “writing” or “written” in these Terms includes emails.

1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6 The Subscription forms a part of these Terms and shall have effect as if set out in full in the body of these Terms. Any reference to these Terms includes the Subscription.

1.7 A reference to a statute or a statutory provision is a reference to it as amended, extended or re-enacted from time to time.