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(Grad) Institutional Additional Terms Supplement

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ADDITIONAL TERMS
 
These Additional Terms supplement, and are made part of, the purchase of Kaplan Services as set forth in the Confirmation of Purchase (“Agreement”) by GROUP, as defined therein.
 
1.         INTELLECTUAL PROPERTY
 
(a) All KAPLAN educational program information, techniques, or materials remain the exclusive intellectual property of KAPLAN.  Each participant registered by GROUP will have a non-exclusive, personal, non-commercial license only to use the information, techniques and materials for test preparation upon full payment by GROUP.

(b) Neither party acquires under this Agreement any title to or proprietary interest in (i) any invention, work of authorship, proprietary information or other item subject to intellectual property protection (each an "Intellectual Work Product") wholly provided to such party from the other party, or in (ii) any patent, copyright, trademark, trade secret or other intellectual property predicated on any such Intellectual Work Product.

(c) GROUP specifically acknowledges that this Agreement does not confer upon GROUP any interest in or right to use any trademark, service mark or other intellectual property right of KAPLAN or its affiliates (collectively, the “Intellectual Property Rights”) under this Agreement, except as this Agreement specifies.  GROUP further agrees that upon termination of this Agreement, GROUP will immediately stop using any of the Intellectual Property Rights.
 
2.         TERM

This Agreement shall be effective as of the Effective Date until the completion of the Services or unless otherwise sooner terminated as provided herein.  When fully executed, this Agreement is a binding obligation of both parties that may not be terminated by either party, except in the event of a material breach of the terms of this Agreement by the non-breaching party.  If a material breach occurs, the breaching party will first be given written notice of the breach and the opportunity to cure the breach within 30 days after the date of the notice.  If the breaching party fails to cure the breach within the applicable period, the non-breaching party may immediately terminate this Agreement upon written notice to the breaching party.
 
3.         REPRESENTATIONS

Each party has full power and authority and has been duly authorized, to enter into and perform its obligations under this Agreement, all necessary approvals of any Board of Directors, shareholders, and partners having been obtained.  Neither party is the subject of any current or pending dissolution, receivership, bankruptcy, reorganization, insolvency, or similar proceeding on the date this Agreement is executed by such party and was not within the three years preceding the Effective Date.  Each party represents and warrants to the other party that the person signing this Agreement is authorized to execute this Agreement on behalf of that party and has full authority to bind that party accordingly.
 
4.     WARRANTY; LIMITATION OF LIABILITY
 
IN NO EVENT IS KAPLAN LIABLE TO GROUP FOR ANY COST OF COVER, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO ANY OF THE PRODUCTS OR SERVICES, EVEN IF KAPLAN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.  IN NO EVENT IS KAPLAN LIABLE TO GROUP FOR DAMAGES IN EXCESS OF THE AMOUNT OF FEES PAID BY GROUP TO KAPLAN.  The SERVICES are provided “AS IS” and “AS AVAILABLE.”  KAPLAN expressly disclaims any and all express or implied warranties including without LIMITATION any warranties of MERCHANTABILITY, fitness for a particular purpose or non-infringement.
 
5.     CHOICE OF LAW; INTEGRATION; WAIVER; INVALIDITY
 
This Agreement will be interpreted according to New York law.  GROUP consents to the personal jurisdiction of the courts of the State of New York and the United States District Court for the Southern District of New York, and waives any objection to venue in any of these courts. This Agreement sets forth the entire understanding of the parties.  No modification of this Agreement is valid unless in writing and signed by both parties.  No waiver of any breach or default will be deemed a waiver of any preceding or subsequent breach or default whether of a similar or dissimilar nature.  If any provision is determined to be illegal, unenforceable or void, and, if the remainder of this Agreement shall not be affected by such determination and is capable of substantial performance, then such void provision shall be deemed rescinded and each provision not so affected shall be enforced to the extent permitted by law.
 
6.         GENERAL PROVISIONS
 
(a) This Agreement may not be assigned without the prior written permission of other Party.  Notwithstanding the foregoing, Kaplan may assign its rights and delegate its duties under this Agreement to any subsidiary, parent or affiliated company of Kaplan if such entity agrees to be bound by all of the terms hereof. 

(b) Kaplan and GROUP are entering this Agreement as independent contractors.  Nothing contained in this Agreement shall be deemed to create a partnership, joint venture, agency, employment, fiduciary or other relationship between Kaplan and GROUP.

(c) There are no intended third party beneficiaries of this Agreement.

(d) Kaplan shall not be liable for any damages caused by its failure or delay in performing its duties hereunder if such failure was due to causes beyond Kaplan’s control, including, but not limited to, acts of God, acts of public enemy, acts of U.S. or foreign government, fires floods, earthquakes, epidemics, strikes, embargoes, or severely inclement weather condition.
 
7.         PAYMENT

Kaplan shall submit final invoice to GROUP within 30 days of student enrollments. GROUP shall pay invoice within 30 days of receipt.
 
 

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