KCPS Terms and Conditions of Restricted Use License
These KCPS Terms and Conditions of Restricted Use License (the “Terms and Conditions“) are incorporated in and made a part of (i) each Master Agreement provided by Kuder, Inc. (“Kuder“) to a Purchaser, or any agreement entered into between Kuder and a Purchaser, with respect to Purchaser’s purchase or a Participant’s use of any components of the Kuder® Career Planning System (each a “Master Agreement,” regardless of the title of the applicable document or agreement), and (ii) each non-exclusive restricted use site license (each a “Site License“) issued pursuant to these Terms and Conditions or a Master Agreement. Unless the context requires otherwise, references herein to Terms and Conditions shall be deemed to refer to these Terms and Conditions, as incorporated into and integrated with any applicable Master Agreement 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, school districts or school systems, educational agencies or institutions, or similar organizations.
In the event that any term of the Master Agreement conflicts with these Terms and Conditions, the terms of the Master Agreement shall control as it applies to a Purchaser’s or each Participant’s relationship with Kuder and the KCPS.
1. DESCRIPTION OF SERVICES. Commencing thirty (30) days following a Purchaser’s acceptance or execution of a Master Agreement (the “Effective Date“), and continuing for the term designated in the Master Agreement (the “Term“), Kuder will provide 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 Master Agreement. The parties acknowledge and agree that the KCPS is developed, validated and administered for the purpose of predicting and assessing KCPS users’ career placement opportunities, and interests during the Term.
2. AGENCY. Each Participant hereby designates and appoints Kuder as its authorized agent for purposes of administering the KCPS via online testing to its students or other authorized users of the KCPS. Each School (including any School that is jointly administering the KCPS as provided in Section 6 below) acknowledges and agrees that Kuder is acting solely in that agency capacity in collecting personal information from its students for the School’s use and benefit and that Kuder is not responsible for obtaining any necessary consents from students or parents. Each School represents and warrants to Kuder that it has or will obtain any and all consents from parents and guardians of students as may be required by the Children’s Online Privacy Protection Act of 1998 (“COPPA“) in connection with Kuder’s collection of personal information from its students and its students’ use and access to the KCPS as provided in these Terms and Conditions. Each School (including a School that is jointly administering the KCPS as provided in Section 6 below) further represents and warrants to Kuder that (a) its use of personal information (as defined by COPPA) collected from students shall at all times comply with COPPA, and (b) it has in place and will continue to have in place procedures to maintain the confidentiality, security and integrity of the personal information collected from students as necessary to comply with COPPA. If applicable, Kuder shall use personally identifiable information from education records of a School’s students only for purposes of the KCPS as described herein and on the terms and conditions set forth 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 Master Agreement 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. Kuder shall also be entitled to terminate any Participant’s right to use the KCPS and the Site License for any such Participant by following the process set forth above with respect to the defaulting Participant, without terminating its relationship with the Purchaser or any other Participant under these Terms and Conditions.
5. PAYMENT. A Purchaser will pay Kuder in accordance with the applicable Master Agreement.
6. RESTRICTED USE LICENSE TO KCPS. All Participants acknowledge and agree that Kuder is the owner of the KCPS and all related trademarks, tradenames, copyrighted materials and other intellectual property, and that each Participant’s access to the KCPS is governed by the applicable Site License. For each Participant that is a School, the KCPS shall be jointly administered by such Participant School and, if applicable, the Purchaser School. Each Purchaser (including a jointly administering School), 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 Participants that are Schools, Kuder will administer the KCPS in a manner which does not permit personal identification of a School’s students or parents by any person other than representatives of Kuder having legitimate interests in such persons or their personal information collected as part of the KCPS, which each School acknowledges and agrees shall include all Kuder personnel involved, directly or indirectly, in the administration, facilitation, or operation of the KCPS.
7. DATABASE LIMITED USE. All Participants understand and acknowledge that the Administrative Database Management System, through which test data and personal information of students or other users collected by the KCPS is accessed and maintained (hereinafter “DBMS”), is used by Kuder for validation and norming purposes and for the purpose of the KCPS described herein, and is proprietary to Kuder. Participant shall have access to the test data and personal information of its authorized students or other users contained in the DBMS on the terms and conditions set forth herein by written agreement only and at the sole discretion of Kuder. Furthermore, a Purchaser (including any jointly administering School described under Section 6 above), if different from the Participant, may have access to the test data and personal information of the authorized students or other users of the Participant contained in the DBMS, as set forth in the Master Agreement, on the terms and conditions set forth herein. A Participant may contact Kuder in writing at 302 Visions Parkway, Adel, Iowa 50003, via phone at (800) 314-8972, or via email at firstname.lastname@example.org, in order to obtain information regarding the identity of the applicable Purchaser, if different than the Participant, and whether such Purchaser has access to the DBMS as provided herein. Participant and any Purchaser (including any jointly administering School described in Section 6) to which access to the DBMS is granted may access or use the information contained in the DBMS only for the purpose of administering the KCPS as provided herein and for lawful purposes in the management and administration of such Participant’s or Purchaser’s organization, subject to the limitations set forth in these Terms and Conditions and the Site License and under applicable law, and agrees not to disclose or distribute information contained in the DBMS to other parties without the prior written approval of Kuder. For Participants that are Schools (including any jointly administering Schools), their access and use of the information contained in the DBMS shall be further limited to the purpose of furthering the School’s educational interests in its students or for making available educational opportunities and related information to students based on their career assessment results and interests. Prior to being provided access to the DBMS, all Participants (including any Purchaser or any jointly administering School described under Section 6) 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 under these Terms and Conditions or the Master Agreement 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.
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 or for Participant’s breach of any representation or warranty made herein. 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 or other users 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. These Terms and Conditions shall be binding upon and inure to the benefit of the parties hereto and their representatives, respective successors and permitted assigns.
15. INTEGRATION; SEVERABILITY. These Terms and Conditions (including the applicable Master Agreement 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 Master Agreement 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 Master Agreement 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 (including any Master Agreement with which it is incorporated). 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, school district or system, 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 users, of the KCPS located at the KCPS Website, 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 Master Agreement, subject to the terms and conditions of this Site License and the KCPS Terms and Conditions of Restricted Use License. For each School (including any jointly administering 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 jointly administering School(s), if any, that click “I Accept” where indicated on this License. If Licensee’s access to the Administrative Database Management System (“DBMS”) is included in the applicable Master Agreement, then Licensee may use the information gathered or accessible 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 and under applicable law. 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 Master Agreement and shall continue in effect for so long as the Term of any such Master Agreement remains in full force and effect, and shall automatically terminate upon the expiration or termination of the applicable Master Agreement.
Each Participant hereby designates and appoints Kuder as its authorized agent for purposes of administering the KCPS via online testing to its students or other authorized users of the KCPS. Each School acknowledges and agrees that Kuder is acting solely in that agency capacity in collecting personal information from its students and is not responsible for obtaining any necessary consents from students or parents.
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 KCPS WEBSITE), 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.
This 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 License and the “KCPS Terms and Conditions of Restricted Use License.” If you do not agree to such terms, click “Cancel” below and access to the KCPS Website and the KCPS services will be denied.
Date last revised: February 23, 2011.