KCPS Terms and Conditions of Restricted
Use License
These Terms and Conditions of Restricted Use License (the "Terms and Conditions") are incorporated in and made a part of each Quote provided by Kuder, Inc. ("Kuder") to a Client desiring to use the Kuder® Career Planning System, whether such Client is a School or an Affiliate, and of each Site License issued pursuant hereto or pursuant to any such Quote. For purposes of these Terms and Conditions, "Client" shall refer to all Clients, whether they are Schools or Affiliates; "School" shall refer only to a Client that is a school, educational agency or institution, or similar organization; and "Affiliate" shall refer to all other types of Clients.
1. DESCRIPTION OF SERVICES. Commencing thirty (30) days following Client’s acceptance of the Quote (the "Quote") provided to Client by Kuder (the "Effective Date"), and continuing for the Term (the "Term") set forth in such Quote, Kuder will provide Client access, at any time during the Term, to those specific components of the internet version of 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, the "KCPS") and those support services described on the Quote. The purpose and scope of the KCPS is to allow students, employees and other authorized participants of the School or Affiliate access to tools for career exploration, planning and assessment for the Term of this agreement, including any renewal periods.
2. AGENCY.Each Client that is a 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 of students, 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 the purposes of the KCPS as described herein.
3. ACCESS.Access by Client 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 the failure of any phase or portion of the World Wide Web or Internet to provide access or other performance to Client except for Kuder’s owned, rented, or leased servers.
4. TERM. The parties’ agreement as described in the Quote will be for the Term set forth in the Quote and will automatically renew every year thereafter, if not terminated by either party by providing no more than 90 nor less than 30 days written notice prior to the end of the then-current Term. Notwithstanding the foregoing, in the event either party defaults by failing to substantially perform any provision, term or condition hereof or of the Quote or of any Site License issued pursuant hereto or pursuant to any such Quote, the other party may provide written notice specifying such default. If the defaulting party does not cure the default within 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. Client will pay Kuder in accordance with the Quote.
6. RESTRICTED USE LICENSE TO KCPS. Client acknowledges and agrees that Kuder is the owner of the KCPS and that its access to the KCPS is governed by the non-exclusive Site License. Prior to the Effective Date, School shall execute a Site License by clicking "I Accept" where indicated thereon. For each Client that is a School, the KCPS shall be jointly administered by School and each of its participating schools.
7. DATABASE LIMITED USE and NONDISCLOSURE.Client understands and acknowledges that the Administrative Database System (hereinafter "DBMS") is used by Kuder for validation and norming purposes and is proprietary to Kuder. Access to the DBMS by Client is by written agreement only and at the sole discretion of Kuder. Prior to being provided access to the DBMS, school shall execute the Site License by clicking "I Accept" where such Site License includes terms governing the Client's limited use and nondisclosure requirements.
8. SITE ADMINISTRATION. Client will determine who will serve as the Master Administrator for the implementation and subsequent operation of the KCPS at each site and will notify Kuder of such determination prior to the Effective Date.
9. WORK PRODUCT OWNERSHIP. Any, ideas, discoveries, inventions, patents, products, copyrightable works or other information (collectively the "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, Client will execute all documents necessary to confirm or perfect the exclusive ownership of Kuder to 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 Client 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 the data submitted through KCPS by Client and Client’s students, employees and authorized participants, is 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 parties hereto agree to destroy or return all personally identifiable information of students within any such party’s possession or control (in whatever format) within 90 days of the earlier of (1) the written request of the Student to destroy such information, or (2) at such time that the information is no longer needed for the purposes of the KCPS 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 the 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 Client that is a School expressly acknowledges that data submitted through 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 Client 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. Client 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. 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.
13. FORCE MAJEURE. If the performance by either party of any obligation is prevented, restricted or interfered with by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party 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. Client will not assign or transfer its rights hereunder or under the Quote or any Site License issued pursuant hereto or pursuant to the Quote without the prior written consent of Kuder, which consent shall not be unreasonably withheld.
15. INTEGRATION; SEVERABILITY. These Terms and Conditions, together with the Quote and any Site License issued pursuant hereto or pursuant to the Quote, 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 Site License issued pursuant hereto or pursuant to the Quote may be amended from time to time by Kuder in its sole discretion and without notice. If any provision of these Terms and Conditions or the Quote, or of any Site License issued pursuant hereto or pursuant to the Quote, is invalid or unenforceable, the remaining provisions will continue to be valid and enforceable. If a court 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 or the Quote, or of any Site License issued pursuant hereto or pursuant to the Quote, shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance.
16. VENUE. 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 in for Polk County, Iowa or in the United States District Court for the Southern District of Iowa.
17. NOTICE. Any notice or communication issued pursuant to these Terms and Conditions or the Quote, or pursuant to any Site License issued pursuant to these Terms and Conditions or the Quote, 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. AUTHORITY/VALIDITY. By signing the Quote and clicking "I Accept" where indicated on any Site License issued pursuant hereto, the party or parties so doing, individually and on behalf of the parties that they represent, warrant that they and such parties have the authority to agree to the terms hereof and thereof, to represent and bind such parties, and to perform their respective duties and obligations hereunder and thereunder. The Site License issued pursuant hereto is only valid if you click "I Accept" where indicated on the Site License. By clicking "I Accept" on the Site License, you agree to be bound by these Terms and Conditions and the Site License. If you do not agree to be bound, click "Cancel" where indicated on 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 license (the "License") to each School or Affiliate 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 a Licensee is a School, agreeing 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 herein. For purposes of this License, "Licensee" shall refer to all Licensees, whether they are Schools or Affiliates; "School" shall refer only to a Licensee that is a school, educational agency or institution, or similar organization; and "Affiliate" shall refer to all other types of Licensees.
The purpose of this Restricted Use 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 Client a non-exclusive restricted use license to use the KCPS for the specific services described in the Quote. For each Client that is a School, use of the KCPS is limited to parties having a legitimate educational interest in the students and student information (which consists of only administrative personnel and students) at the School and at School’s participating school(s), that click "I Accept" where indicated on this Site License. . . If access to the Administrative Database System ("DBMS") is included in the Quote, then Client may use the information gathered by Client for any lawful purpose in the management and administration of Client’s organization. Client 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 DBMA 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 Quote and shall continue in effect for so long as any such Quote remains in full force and effect, and shall automatically terminate upon the expiration or termination of the Quote.
Each Licensee that is a 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 of students, with the exception of the requirements of the Child Online Privacy Protection Act.
THIS NON-EXCLUSIVE LICENSE IS NON-ASSIGNABLE AND IS ISSUED SOLELY FOR USE OF THE KUDER® CAREER PLANNING SYSTEM IN ACCORDANCE WITH THIS LICENSE AND THE “KUDER® CAREER PLANNING SYSTEM 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, WHICH ARE INCORPORATED HEREIN BY REFERENCE. NO OTHER USE IS INTENDED OR PERMITTED.
This Site License is only valid if you click “I Accept” where indicated below. By clicking “I Accept” you agree to be bound by all of the terms of this Site License and of the "Kuder Career Planning System Terms and Conditions of Restricted Use License". If you do not agree to such terms, click “Cancel” below and access to the site and the services will be denied.
