Kaplan Nursing Institutional
1. INTELLECTUAL PROPERTY
These Additional Terms supplement, and are made part of, the purchase of Kaplan Services as set forth in the Confirmation of Purchase (“Agreement”) by School, as defined therein.
a. SCHOOL acknowledges that Kaplan Services, Online Resources and all other content, software and materials provided by Kaplan to School and/or Students in connection with the purchase of any Services (collectively, Kaplan IP”) are and shall remain the sole and exclusive property of Kaplan and its licensors.
b. Kaplan grants to Students and School personnel designated by Kaplan a personal, non-exclusive, non-assignable license to use Kaplan IP during the Course (or as otherwise provided in the Confirmation of Purchase) solely for the purpose of participating in the Course.
c. SCHOOL shall use best efforts to prevent Students from copying, reproducing or otherwise infringing Kaplan IP. SCHOOL shall promptly notify Kaplan if it becomes aware of any possible infringement of Kaplan’s ownership rights in and to the Kaplan IP.
a. Either Party may terminate the Agreement for material breach. In the event that Kaplan terminates the Agreement for non-payment or other material breach, Kaplan shall have no obligation to refund Tuition to School and School shall remain obligated to pay any outstanding invoices.
3. REPRESENTATION , WARRANTIES & INDEMNITIES
a. Kaplan warrants and represents that: (a) it has the necessary rights to enter into this Agreement; (b) its entry into this Agreement will not cause any breach of its obligations to third parties; (c) to the best of its knowledge, no Kaplan IP infringes any personal, intellectual property or other rights of any third party. Kaplan agrees to indemnify and hold harmless SCHOOL and its trustees officers, employees and agents from and against all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or as a result of Kaplan’s breach of this Agreement, any breach of Kaplan’s representations and warranties herein, or any claims resulting from or arising out of the infringement of any third party intellectual property rights by Kaplan Materials.
4. GOVERNING LAW; JURISDICTION: This Agreement shall be governed by and construed in accordance with the laws of the State of New York, exclusive of its choice of law provisions. Both Parties consent to the exclusive jurisdiction of the federal and state courts of New York, New York.
b. SCHOOL warrants and represents that: (a) it has the necessary rights to enter into this Agreement; (b) its entry into this Agreement will not cause any breach of its obligations to third parties; and (c) in performing its obligations hereunder, it will comply with all laws, rules and regulations of all governmental bodies having jurisdiction thereof. SCHOOL agrees to indemnify and hold harmless Kaplan and its subsidiaries, affiliates, directors, shareholders, officers, employees and agents from and against all third party claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or as a result of: SCHOOL’s breach of the Agreement, SCHOOL’s provision of personal information to Kaplan, and the condition, safety, maintenance, security, operation, supervision, ownership or control of any premises on or off-campus where the Service is provided.
5. LIMITATION OF LIABILITY: EXCEPT FOR LIABILITY ARISING AS A RESULT OF GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF KAPLAN, IN NO EVENT SHALL KAPLAN BE LIABLE TO SCHOOL FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SCHOOL IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL KAPLAN’S LIABILITY EXCEED THE TOTAL AMOUNT PAID TO KAPLAN BY SCHOOL HEREUNDER.
6. DISCLAIMER OF WARRANTIES: EXCEPT AS SPECIFIED IN THIS AGREEMENT, KAPLAN MAKES NO WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT OR OPERATION OF ITS WEBSITES AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
7. 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 SCHOOL 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 SCHOOL.
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.