Oncology Nursing Certification Corporation



ONCC FreeTake? Certification Program AgreementThis ONCC FreeTake? Certification Program Agreement (this “Agreement”), effective as of the date of the last signature hereto (the “Effective Date”), is between ONCOLOGY NURSING CERTIFICATION CORPORATION, a Pennsylvania nonprofit corporation (“ONCC”) and _________________________ (the “Employer”). BackgroundThe Employer wishes to participate in ONCC’s FreeTake? Certification Program (the “Program”). By participating in the Program, the Employer will enroll employees to take an ONCC examination and pay ONCC a fee only for each employee who passes the examination on the first or second attempt, all subject to the terms and conditions of this Agreement. Intending to be legally bound, the parties agree as follows: Program. Program Administration. The Employer shall designate one or more of its staff as Program administrators, as identified on Appendix A (“Administrator”). Upon execution of this Agreement, ONCC shall provide the Employer via the Administrator with access to a web-based portal through which the Employer shall administer the Program (the “Portal”). Through the Portal, ONCC shall provide the Employer with access codes, which enable certain employees of the Employer to apply to take one of the following ONCC examination without payment by the Candidate: OCN?, AOCNP?, CBCN?, CPHON?, BMTCN? (an “ONCC Exam”). The Employer shall provide an access code only to an employee who is (a) eligible to take at least one ONCC Exam, and (b) employed by Employer at one of the Employer’s facilities listed on Appendix B (a “Candidate”). The Employer via the Administrator shall also share information about ONCC Exams and the Program with Candidates (available on ). The Employer via the Administrator may review access code and Candidate registration activity and results through the Portal). Employer shall notify ONCC if any Candidate is no longer employed by the Employer or is otherwise not eligible to take an ONCC Exam (by email to freetake@).Application. Candidates must apply to take an ONCC Exam via using an access code. ONCC will not apply on a Candidate’s behalf. ONCC will not process incomplete applications (e.g., applications that do not include all required information or documentation). The Employer and a Candidate are responsible for enrolling and applying. Testing. After a Candidate successfully submits a complete application, a Candidate will be issued an Authorization to Test (“ATT”). A Candidate must schedule a testing appointment according to the instructions provided in ATT. If a Candidate fails to schedule a test appointment within the 90-day testing window stated in the ATT, or if a Candidate fails to show for a scheduled test, the Candidate will be deemed to have attempted to test and failed. If a Candidate actually attempts a test, the success or failure of the test will be determined solely by reference to ONCC’s calculations, which will be final and binding. The Employer shall inform Candidates of these scenarios. If a Candidate fails an ONCC Exam, the Employer via the Administrator is responsible for generating a new access code and providing it to the Candidate for the second attempt.Program Benefits. ONCC shall permit a Candidate who has failed an ONCC Exam for which the Candidate had an ATT issued on a Program access code with the opportunity to retake the same ONCC Exam a second time for no additional fee. This free retake opportunity is limited to the 12-month period beginning on the date a Candidate fails an ONCC Exam and may only be used for the same ONCC Exam. In addition, ONCC shall (a) provide the Employer with promotional materials for the Program at no cost to the Employer; (b) assist the Administrator in monitoring Candidate applications; (c) provide the Administrator with a monthly invoice listing those Candidates who have successfully passed an ONCC Exam, including the name, title, and associated fee; and (d) allow Candidates to take an ONCC Exam for which the Candidate had an ATT issued on a Program access code at the computer-based testing site of the Candidate’s choice. Acknowledgements. The Employer acknowledges that a Candidate might apply to take an ONCC Exam other than the ONCC Exam that the Employer intended the Candidate to apply for. If the Employer intends that a Candidate apply to take a specific ONCC Exam, the Employer is solely responsible for instructing the Candidate and ensuring the Candidate’s compliance. ONCC will not be responsible for access codes that have been lost, stolen, destroyed, expired, misplaced, improperly or incorrectly distributed, used without the Employer’s permission or authorization, or not actually used by a Candidate when applying. The Employer acknowledges that a Candidate may still be able to apply to take an ONCC Exam or take an ONCC Exam after the Candidate’s employment with the Employer has been terminated or otherwise changed (e.g., change of position or reassignment) and the Employer will still be responsible for all fees and payments associated with the Candidate, unless the Employer has notified ONCC in writing in advance of the Candidate taking and passing an exam that the Candidate’s employment has been terminated or otherwise changed. By way of example only, if the Employer fails to notify ONCC that a Candidate’s employment has terminated, the Employer will nevertheless have to pay the applicable fee if that Candidate is no longer employed by the Employer when the Candidate passes an ONCC Exam. The Employer states that the transactions contemplated by this Agreement are not necessary for the Employer’s fulfillment of a government contract.Restrictions. Except as expressly permitted by this Agreement, the Employer shall not, and shall not permit any Candidate to (a) access, use, sell, license, transfer, distribute, or otherwise commercially exploit the Portal or an access code, (b) tamper with, disable, interfere with, reverse engineer, or otherwise attempt to discover any source code of the Platform or an access code, or try to circumvent the features or security of the Portal, (c) scrape, spider, use a robot, or any other automated or nonautomated means in connection with the Portal or an access code, (d) use an access code or the Portal in any manner that violates any applicable laws or regulations, or (e) use the Portal or an access code in violation of this Agreement. ONCC Policies. This Agreement incorporates the ONCC policies set forth at policies, which are incorporated herein by reference and which apply to all Candidates and ONCC Exams. Term; Termination.Term. The term of this Agreement begins on the Effective Date, and unless terminated earlier in accordance with Section REF _Ref22038724 \r \h 2.2, terminates on the 1-year anniversary of the Effective Date. Termination. Either party may terminate this Agreement: (a) for convenience, effective 30 days after a party notifies the other party in writing, (b) for breach, effective on the date when the non-breaching party notifies the breaching party in writing, (c) immediately by notice if ONCC ceases operations as a certifying organization, or (d) immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due.Effect of Termination. Upon termination of this Agreement, ONCC’s obligations to the Employer and any Candidates will cease and ONCC may disable all access codes. Within 4 months from the date of termination, the Employer via the Administrator must generate any access codes that would permit a Candidate to retake an ONCC Exam. After that 4-month period, the Employer will be unable to generate any new access codes. Candidates who have received an ATT before the effective date of termination will still be permitted to take the applicable ONCC Exam, and the Employer’s payment obligations as stated in this Agreement will apply in connection with those Candidates. Termination of this Agreement will not relieve the Employer of liability for any payment or fees due or to become due to ONCC, including but not limited to fees for Candidates who have passed an ONCC Exam that was applied-for prior to the date of termination. Provisions that by their nature survive termination of this Agreement will so survive. Payment. Fee. Within 10 days from the date when a Candidate passes an ONCC Exam on the first or second attempt, ONCC shall invoice the Employer. The Employer will be charged the then-current member or nonmember fees, as applicable, as of the date of the invoice. Current fees as of the date of the Effective Date are stated on Appendix A. Employer acknowledges that, because the Employer is charged the amount of the then-current fees as of the date of an invoice, the invoiced amount may be more than the fees stated on Appendix A or more than those that were in effect as of the date when a Candidate applied for or passed an ONCC Exam. 10-Candidate Minimum. The Employer shall pay for a minimum of 10 Candidates. An employee who applies for an ONCC Exam but is not eligible for certification does not constitute a “Candidate,” does not count towards the 10-Candidate minimum, and is not entitled to the benefits of the Program (i.e., re-taking an ONCC Exam a second time for no additional fee). If upon termination of this Agreement the Employer has not paid for at least 10 Candidates the Employer shall pay the then-current member fee corresponding to the number of Candidates below the 10-Candidate minimum but will not be entitled to Program benefits as a result of such payment. Payment. ONCC will issue invoices for all fees payable by the Employer under this Agreement, which the Employer shall pay within 30 days after receipt of the invoice. Each ONCC invoice will be deemed undisputed unless ONCC receives written notice from the Employer within 30 days from the invoice date that the Employer is disputing an invoice. In a notice disputing an invoice, the Employer shall state with particularity the details as to which portion of the invoice is disputed and the reasons for the dispute. The Employer shall nevertheless pay all undisputed portions and amounts as required by this Agreement, and the parties shall use good faith efforts to reconcile the disputed amount as soon as practicable. If the Employer fails to timely pay any invoice, ONCC may charge the Employer, and the Employer shall pay ONCC, interest on the unpaid portion at the rate of 1.5% per month or the maximum legal rate, whichever is less. Confidentiality.Confidentiality. In connection with this Agreement, a party may disclose confidential non-public information to the other party. For purposes of this Agreement, the term “Confidential Information” includes but is not limited to the circumstances and terms of this Agreement, access codes, and pricing, as well as business plans, forecasts and projections, financial information, current and prospective customers or clients, as well as such other information of the disclosing party that would reasonably be considered confidential. The receiving party (a) shall use Confidential Information solely to perform or enforce this Agreement, (b) shall restrict disclosure of Confidential Information only to the receiving party’s directors, officers, employees, attorneys, advisors, and consultants (“Representatives”) who need to know Confidential Information to perform or enforce this Agreement, are informed of the confidential nature of the Confidential Information prior to receipt, and are bound by restrictions at least as protective of confidential information as set forth in this Agreement, (c) will be liable for a breach of this Agreement by any of its Representatives or an act of any of its Representative that would have constituted a breach had the Representative signed this Agreement, (d) shall protect the disclosing party’s Confidential Information with at least the same care that it uses to protect its own information of similar nature, but no less than reasonable care, and (e) notify the disclosing party of a violation of this Agreement. Legal Disclosure. If the receiving party or any of its Representatives is required by law to disclose Confidential Information, the receiving party shall use reasonable efforts to promptly notify the disclosing party so that the disclosing party may seek appropriate relief (e.g., a protective order) or waive compliance with this Agreement. If appropriate relief is not obtained or if the disclosing party waives compliance, the receiving party shall disclose only that portion of Confidential Information that is legally required to be disclosed and shall use reasonable efforts to ensure that confidential treatment will be afforded thereto. Intellectual Property. Ownership. ONCC owns or has a right to use all intellectual property associated with the Program, including the FreeTake? trademark, all of which are and will remain, as between ONCC and the Employer and any Candidate, the exclusive property of ONCC or its licensors. The Employer shall not use ONCC’s name or trademarks, logos, domain names, and other distinctive brand features except as permitted by ONCC in advance in writing.Use of Name. Employer hereby grants ONCC a non-exclusive license during the term to list Employer’s name and display Employer’s logo on ONCCs website and marketing materials. Analysis. ONCC may collect, use, and disclose quantitative de-identified data derived from the Program for industry analysis, benchmarking, analytics, marketing, and other business purposes. ONCC will own all such data. Indemnification; No Warranties; Limitation of Liability.Indemnification. Each party shall indemnify, defend, and hold harmless the other party (including its affiliates and its and their officers, directors, employees, members, representatives, and agents) (“Indemnitees”), from and against any claim, damage, liability, loss, injury to persons or property, and costs or expenses including reasonable legal fees (“Claims”) incurred by an Indemnitee arising out of or related to the party’s gross negligence or willful misconduct. No Warranties; Limitation of Liability. The Program is provided “as is” without warranty of any kind, whether express or implied. ONCC does not represent or warrant (a) that the Program will meet the requirements or expectations of the Employer or a Candidate, (b) that operation of or access to the Portal will be uninterrupted or error-free, or (c) that a Candidate will successfully pass a test. Employer acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy or the loss or corruption of Employer’s Program data or information. ONCC does not make any representations or warranties with respect to the interoperability of the Portal with hardware, software, services, or other materials not developed or provided by ONCC. In no event will either party be liable to the other for loss of goodwill, profits, business, use, or data; or for interruption of business or loss or corruption of data, or for costs to procure substitute offerings, or for indirect, incidental, consequential, liquidated, special, or punitive damages, regardless of whether such damages were foreseeable or whether the party was advised of the possibility of such damages. ONCC’s total liability to the Employer, if any, whether in contract, tort, or other legal theory, will not exceed the fees paid by the Employer to ONCC under this Agreement for the 12 months immediately preceding the date when the cause of action arose. General.Amendments; Waivers. This Agreement may be modified, or any rights under it waived, only by a written document executed by both parties.Binding Effect; No Assignment; No Third-Party Beneficiaries. This Agreement binds, and inures to the benefit of, the parties and their successors and permitted assigns. Neither party may assign this Agreement or any rights hereunder, whether by merger (whether that party is the surviving or disappearing entity), consolidation, operation of law, or any other manner, except with the other party’s prior written consent. Any purported assignment in violation of this prohibition will be void. For purposes of this Agreement, a “change in control” is deemed an assignment. This Agreement does not contemplate any third-party beneficiaries. Notice. The parties shall provide all required notices in writing to the addresses set forth herein (or otherwise designated by a party through a written notice) by nationally recognized overnight courier or hand delivery and will be deemed given upon receipt.If to ONCC:125 Enterprise DrivePittsburgh, PA 15275Attn: Tony Ellis, CAEIf to the Employer:________________________Attn: ________Relationship of the Parties. This Agreement does not create any agency, employment, partnership, or joint venture relationship between the parties.Force Majeure. Except for financial obligations, neither party will be liable for any failure or delay in performing under this Agreement due to any circumstances beyond its reasonable control, including but not limited to natural disasters, labor strikes or shortages, acts of civil or military authority, war, terrorism, government regulation, or acts or omissions of carriers or suppliers, internet outage, or loss of any necessary utility. Non-Solicitation. During the Term and for a period of 12 months thereafter, each party promises and agrees that it will not, without the prior written approval of the other party, (a) employ or hire, or engage as a consultant or subcontractor, any employee or subcontractor of the other party or its affiliates, (b) solicit any employee or subcontractor of the other party or its affiliates to become an employee or subcontractor of the other party or any other party, or (c) recommend or suggest to any other person or entity that such person or entity should solicit, employ, hire, or engage any such employee or subcontractor. The foregoing prohibitions will not apply to job postings made to the general public. Governing Law; Dispute Resolution. Excluding conflicts of law principles, Pennsylvania law governs this Agreement. In any action arising out of or relating to this Agreement, the federal and state courts in Allegheny County, Pennsylvania will have exclusive jurisdiction, and the parties hereby waive objections to jurisdiction, venue, and inconvenience of the forum in connection therewith. The parties shall use their best efforts in good faith to settle any dispute with respect to this Agreement, or any subject matter referred to in or governed by this Agreement from the date such dispute is claimed. If settlement cannot be reached within and the parties cannot agree to extend such period, or settle such dispute through a mutually agreed form of alternative dispute resolution involving a disinterested third party, then each party may pursue any available remedies at law or in equity.Severability. If any provision of this Agreement is illegal or unenforceable, the parties intend that the other provisions of this Agreement remain in force and the provision at issue be reformed and enforced to the maximum extent permissible under law.Interpretation. This Agreement will be construed as if jointly drafted, without regard for which party was generally responsible for preparing the Agreement. The Employer acknowledges that the disclaimers and limitations of liability contained in the Agreement set forth an allocation of risk reflected in the fees due hereunder. Counterparts. This Agreement may be signed electronically and in counterparts, each of which will be deemed an original, but which together will constitute one instrument.Entire Agreement. This Agreement (which incorporates all attached exhibits) is the entire and exclusive agreement of the parties relating to the subject matter hereof, superseding all other oral or written agreements relating thereto.[SIGNATURE PAGE FOLLOWS]ONCC FreeTake Certification Program Agreement | rev Jan 2020Each party, intending to be legally bound, signs this ONCC FreeTake? Certification Program Agreement on the date stated below that party’s signature. ONCOLOGY NURSING CERTIFICATION CORPORATION (ONCC)_________________ (Employer)By: ________________________________Name: Tony Ellis, CAETitle: Executive DirectorDate: _______________________________By: ________________________________Name: ______________________________Title: _______________________________Date: _______________________________?ONCC FreeTake? Certification Program AgreementAppendix AFees:Calendar YearMember Fees* Nonmember Fees2020$296.00 per ONCC Exam$416.00 per ONCC Exam* Member Fees are available to members in good standing of Oncology Nursing Society (ONS) or Association of Pediatric Hematology/Oncology Nurses (APOHN) at the time an invoice is generated by ONCC.Administrator:The Administrator has oversight for the Employer’s administration of the Program. The Administrator is responsible for (a) managing the dissemination of access codes to Candidates, (b) monitoring interim reports of Candidates who apply to an ONCC Exam using the access codes, (c) disseminating information about ONCC Exams and how to apply, and (d) receiving invoices and facilitating payment to ONCC. Please notify ONCC within 7 days if any of the contact information below changes. Primary AdministratorSecondary Administrator (optional)NameTitlePhoneEmailMailing Address (include any mail stops/codes or special room or building instructions)For Questions Regarding the Program:ONCC FreeTake Certification ProgramFreeTake@(877) 769-ONCC (ext. 6622)ONCC FreeTake? Certification Program AgreementAppendix BParticipating Facilities: The following facilities of the Employer are eligible to participate in the Program, subject to the terms and conditions of this Agreement. [Instructions to Employer: please complete the list below and attach additional sheets if necessary.]Facility NameCity/State ................
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