These KCPS Terms and Conditions of Restricted Use License (the "Terms and Conditions") are incorporated in and made a part of (i) each quote (each a "Quote") provided by Kuder, Inc. ("Kuder") with respect to the purchase and use of any components of the Kuder® Career Planning System, and (ii) each non-exclusive site license (each a "Site License") issued pursuant hereto or pursuant to any such Quote. References herein to Terms and Conditions shall be deemed to refer to these Terms and Conditions and to any applicable Quotes and Site Licenses.
For purposes of these Terms and Conditions, (i) "Purchasers" shall refer only to parties who have agreed to purchase KCPS products and services, (ii) "Participants" shall refer, collectively, to all Purchasers and all parties authorized by Purchasers to use the KCPS and approved by Kuder in its reasonable discretion, and (iii) "Schools" shall refer to Participants that are schools, educational agencies or institutions, or similar organizations.
1. DESCRIPTION OF SERVICES. Commencing thirty (30) days following a Purchaser's acceptance of a Quote (the "Effective Date"), and continuing for the term designated in the Quote (the "Term"), Kuder will provide all Participants with access to those specific components of the internet version of the Kuder® Career Planning System (which components may include, without limitation, Kuder Galaxy, Kuder Navigator, and Kuder Journey; hereafter collectively referred to as the "KCPS") and those support services described in the Quote.
2. AGENCY. Each School hereby designates and appoints Kuder as its authorized agent for purposes of administering the KCPS via online testing to its students and acknowledges and agrees that Kuder is acting solely in that agency capacity in collecting personal educational information from such students and is not responsible for obtaining any necessary consents from students or parents, except as may be otherwise expressly required by the Child Online Privacy Protection Act. Kuder shall use personally identifiable information from education records only for purposes of the KCPS as described herein.
3. ACCESS. Access to the KCPS will be subject to any operational constraints, restrictions and requirements of Kuder, in the sole discretion of Kuder, that are now in effect or may be in effect in the future. Kuder shall not be liable in any way for failure of any phase or portion of the World Wide Web or Internet to provide access or other performance to Participants except for Kuder's owned, rented, or leased servers.
4. TERM. The parties' agreement hereunder will be for the Term set forth in the applicable Quote and will automatically renew for successive one-year periods thereafter, if not terminated by either party by providing no more than ninety (90) nor less than thirty (30) days written notice prior to the end of the then-current Term or renewal period. Notwithstanding the foregoing, in the event Kuder or a Purchaser defaults by failing to substantially perform any material provision, term or condition hereof, the other party may provide written notice specifying such default. If the defaulting party does not cure the default within thirty (30) days of receipt of such notice, the non-defaulting party will have the right to terminate the parties' relationship upon written notice.
5. PAYMENT. A Purchaser will pay Kuder in accordance with the applicable Quote.
6. RESTRICTED USE LICENSE TO KCPS. All Participants acknowledge and agree that Kuder is the owner of the KCPS and that each Participant’s access to the KCPS is governed by the applicable Site License. Each Purchaser, prior to the Effective Date, and each other Participant, prior to its first use of the KCPS, shall execute a Site License by clicking "I Accept" where indicated thereon. Any Participant that does not execute a Site License will be denied access to the KCPS. For each Participant that is a School, the KCPS shall be jointly administered by the School and each of its participating schools.
7. DATABASE LIMITED USE. All Participants understand and acknowledge that the Administrative Database Management System (hereinafter "DBMS") is used by Kuder for validation and norming purposes and is proprietary to Kuder. Access to the DBMS by Participants is by written agreement only and at the sole discretion of Kuder. Prior to being provided access to the DBMS, all Participants shall execute the Site License by clicking "I Accept" where indicated thereon. Any Participant that does not execute a Site License will be denied access to the DBMS.
8. SITE ADMINISTRATION. Each Purchaser will notify Kuder prior to the Effective Date who will serve as the Master Administrator for the implementation and subsequent operation of the KCPS at each site where the KCPS will be administered and will thereafter notify Kuder upon any change of the Master Administrator for any such site.
9. WORK PRODUCT OWNERSHIP. Any, ideas, discoveries, inventions, patents, products, copyrightable works or other information (collectively, "Work Product") developed in whole or in part by Kuder in connection with providing services hereunder will be and remain the exclusive property of Kuder. Upon request, all Participants will execute all documents necessary to confirm or perfect Kuder's exclusive ownership of such Work Product.
10. CONFIDENTIALITY. Neither Kuder nor its employees, agents or representatives will, directly or indirectly, use divulge, disclose, or communicate to unauthorized third parties in any manner, any information that a Participant identifies in writing as proprietary. Kuder will protect such information and treat it with at least the same degree of care with which Kuder treats its own confidential information. Kuder acknowledges that data submitted through the KCPS by Participants and their students, employees and authorized participants may be proprietary to such parties. Information disclosed by students is likely to include: name, contact information, assessment results, ethnicity, date of birth and gender, as well as each student's four-year plan. All Participants and Kuder agree to destroy or return all personally identifiable information of students within any such party's possession or control (in whatever format) within ninety (90) days of the earlier of (1) the written request of a student to destroy such information, or (2) at such time that the information is no longer needed for purposes of the KCPS as described herein, as determined by Kuder in its sole discretion. Unless otherwise determined by Kuder, a student's information shall be deemed to be needed for purposes of the KCPS for such period that such student is permitted to access and use the KCPS. Notwithstanding any provision herein to the contrary, each School expressly acknowledges that data submitted through the KCPS by students, without personally identifiable information, may be used by Kuder for validation and norming purposes. This provision will continue to be effective after termination of the parties' relationship, unless and until such proprietary information becomes legally publicly available.
11. INDEMNIFICATION. Kuder shall indemnify and hold Participants harmless from and against all claims, losses, expenses, fees and damages, including attorneys' fees and court costs, arising solely from the negligent acts or omissions of Kuder and its employees, agents and representatives. Participants shall indemnify and hold Kuder harmless from and against all claims, losses, expenses, fees and damages, including attorneys' fees and court costs, arising from Kuder serving in the agency capacity described in Section 2 above. All parties hereto shall indemnify and hold all other parties hereto harmless from and against all claims, losses, expenses, fees and damages, including attorneys' fees and court costs, arising from any such party's failure to destroy or return all personally identifiable information of students as required by Section 10 above. The parties' obligations under this Section shall survive the termination of the parties' relationship as described herein.
12. STANDARD OF CARE; DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
(a) Kuder shall provide its services in a timely and workmanlike manner and will provide a standard of care equal or superior to the standard of care used by service providers similar to Kuder on similar projects. Except as provided in the preceding sentence, Kuder makes no warranty or representation, and expressly disclaims all other warranties and representations, express or implied, including without limitation, all implied warranties of merchantability and fitness for a particular purpose.
(b) KUDER'S TOTAL LIABILITY TO ANY PERSON OR ENTITY HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE AMOUNT ALREADY PAID BY PURCHASER TO KUDER FOR SERVICES PERFORMED IN THE TERM CURRENT WHEN THE INITIAL EVENT OR OCCURRENCE GIVING RISE TO A CLAIM OCCURRED.
(c) IN NO EVENT SHALL ANY PERSON OR ENTITY BE LIABLE TO ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE PERFORMANCE OR BREACH HEREOF, EVEN IF THE PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
13. FORCE MAJEURE. If the performance by any party of any obligation is prevented, restricted or interfered with by causes beyond such party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other parties prompt written notice thereof, then the obligations of the party invoking this provision shall be suspended to the extent reasonably necessary as a result of such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, national emergencies, insurrections, riots and wars.
14. ASSIGNMENT. No Participant will assign or transfer its rights hereunder without the prior written consent of Kuder, which consent shall not be unreasonably withheld.
15. INTEGRATION; SEVERABILITY. These Terms and Conditions (including the applicable Quote and any applicable Site Licenses), contain the entire agreement of the parties, and there are no other warranties, representation, promises or agreements, whether oral or written, concerning the subject matter hereof that are of any force or effect. These Terms and Conditions and any applicable Site Licenses may be amended from time to time by Kuder in its sole discretion and without notice. If any provision of these Terms and Conditions, the applicable Quote or any applicable Site License is deemed invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will continue to be valid and enforceable. If a court of competent jurisdiction finds that any such provision is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written as so limited. The failure of either party to enforce any provision of these Terms and Conditions, the applicable Quote or any applicable Site License shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance.
16. GOVERNING LAW; VENUE. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Iowa, United States of America without regard to conflicts of law principles. The parties consent to the exclusive jurisdiction of the courts of the State of Iowa with respect to any disputes and agree that venue shall be either in the Iowa District Court for Polk County, Iowa or in the United States District Court for the Southern District of Iowa.
17. NOTICE. Any notice or communication shall be sufficiently given if delivered in person or by first class or certified mail to the last known address of the intended party.
18. NO AGENCY; RELATIONSHIP OF PARTIES. All parties acknowledge and agree that the views or opinions of any person or entity other than Kuder or an authorized Kuder employee that may from time to time be expressed, accessible, or communicated through the KCPS are not necessarily the views or opinions of Kuder. No such person or entity, other than an authorized employee of Kuder, is an agent or representative of Kuder, nor shall any such party have any right or authority, express or implied, to make any representations or warranties on behalf of Kuder or to bind Kuder in any respect. The relationship of Kuder and the Participants will be that of independent contracting parties and not a joint venture, partnership or agency relationship (except for the limited purpose described above in Section 2 and in the Site License).
KCPS Site License
Kuder, Inc. ("Kuder"), upon and subject to receipt of Kuder's required license fees, hereby grants a non-exclusive restricted use license (the "License") to each Participant that clicks "I Accept" below (" Licensee'"), thereby accepting the terms of this License and the terms of the "KCPS Terms and Conditions of Restricted Use License" set forth herein and above. If such Licensee is a School, such School further agrees to jointly administer the Kuder Career Planning System (together with any and all related products including, but not limited to, Kuder Galaxy, Kuder Navigator and Kuder Journey, collectively, "KCPS") as provided in the KCPS Terms and Conditions of Restricted Use License set forth above. For purposes of this License, "School" shall refer only to a Licensee that is a school, educational agency or institution, or similar organization. Capitalized terms not specifically defined in this License shall have the same meaning as in the KCPS Terms and Conditions of Restricted Use License set forth above.
The purpose of this License is to allow use, for the benefit of Licensee's students, employees and other authorized participants, of the KCPS located at the Kuder web site, www.kuder.com, during the term of this License. Kuder hereby grants Licensee a non-exclusive restricted use license to use the KCPS for the specific services described in the applicable Quote. For each School, use of the KCPS is limited to parties having a legitimate educational interest in the students of the School and student information (who consist of only administrative personnel and students) at the School and at such School's participating school(s), if any, that click "I Accept" where indicated on this License. If access to the Administrative Database Management System ("DBMS") is included in the applicable Quote, then Licensee may use the information gathered by Licensee for any lawful purpose in the management and administration of Licensee's organization, subject to the restrictions contained in the KCPS Terms and Conditions of Restricted Use License. Licensee agrees to refrain from any other use of the information contained in the DBMS, and agrees not to disclose or distribute information contained in the DBMS to other parties, without the prior written approval of Kuder.
This License is limited to those specific components of the KCPS and those specific support services described in the applicable Quote and shall continue in effect for so long as the Term of any such Quote remains in full force and effect, and shall automatically terminate upon the expiration or termination of the applicable Quote.
Each School hereby designates and appoints Kuder as its authorized agent for purposes of administering the KCPS via online testing to School's students and acknowledges and agrees that Kuder is acting solely in that agency capacity in collecting personal information from such students and is not responsible for obtaining any necessary consents from students or parents, with the exception of the requirements of the Child Online Privacy Protection Act.
THIS LICENSE IS NON-ASSIGNABLE AND IS ISSUED SOLELY FOR USE OF THE KUDER® CAREER PLANNING SYSTEM IN ACCORDANCE WITH THIS LICENSE AND THE “KCPS TERMS AND CONDITIONS OF RESTRICTED USE LICENSE” (WHICH ARE AVAILABLE ON THE KUDER WEB SITE, www.kuder.com), AS THEY MAY BE AMENDED FROM TIME TO TIME BY KUDER IN ITS SOLE DISCRETION AND WITHOUT NOTICE, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. NO OTHER USE IS INTENDED OR PERMITTED.