THIS TERMS AND CONDITIONS AGREEMENT (this "Agreement") is made between CollegeCesta.com., a Texas Company ("Vendor"), and by you the customer identified below ("Customer") (Customer and Vendor are each sometimes referred to herein as a "Party" and collectively as the "Parties").
1. Overview. Vendor has developed certain proprietary computer software program(s) for storing student information online (collectively, as the same may be supplemented, modified, updated or enhanced from time to time, the "Application"), which is hosted on servers and made available to Vendor's customers by means of the Internet (the "Service"), currently at http://www.CollegeCesta.com (the "Website"). Customer desires to access and use the Service, and Vendor desires to provide the Service to Customer, subject to all of the terms and conditions hereof and on the Website.
2. Access. Vendor grants to Customer a non-exclusive, non-assignable and non-transferable right during the Term (as hereinafter defined) to allow access to, and use of, the Service by the authorized users (the "Users"), in accordance with all of the terms and conditions set forth herein and on the Website. Access will be restricted by means of a password that the Customer can set on the effective date of this Agreement.
3. Fees. During the Term of this Agreement, Customer shall pay to Vendor the following fees (herein collectively "Fees")
$5.95 for 1 calendar month or $49.95 for 1 calendar year.
Such amounts shall be prepaid. The Monthly Fee fee will be paid on the date on which Vendor first makes the Service available to Customer. The recurring Monthly Fee will be paid on the date on which Vendor first makes the Service available to Customer on a monthly basis thereafter.
(a) Vendor Information. Customer shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the executable code of the Application to others. Customer agrees to secure and protect the Application and the Service in a manner consistent with the maintenance of Vendor's rights therein and to take appropriate action by instruction or agreement with its users to satisfy its obligations hereunder. Customer shall use its best efforts to assist Vendor in identifying and preventing any unauthorized access, use, copying or disclosure of the Application or the Service, or any component thereof, or any of the algorithms or logic contained therein. Customer agrees to maintain the confidentiality of the executable code of the Application using at least as great a degree of care as Customer uses to maintain the confidentiality of Customer's own most confidential information (and in no event less than a reasonable degree of care).
(b) Customer Information. Based on the confidential nature of the Customer data, Vendor agrees to secure and protect the Customer data input into the Application from disclosure to any unintended parties. Customer data shall be used by Vendor solely for the purposes of (i) fulfilling Vendor's obligations under this Agreement, and (ii) without disclosing any information about any specific client or customer, aggregating such information to assist Vendor with its Services to Customer and other of its customers. Vendor agrees to maintain the confidentiality of this data and will maintain it using at least as great a degree of care as Vendor uses to maintain its own confidential information.
5. Term. The term of this Agreement shall commence on the date on which Vendor first makes the Service available to Customer and shall continue on a monthly basis thereafter, upon advance payment of Vendor's then current Fees by Customer to Vendor, each month.
(a) Either Party may terminate this Agreement at any time. The Customer may terminate this agreement by not renewing the Monthly or Yearly Fee when due. The Vendor may terminate this agreement by email, or written notice and a prorated refund of the current Monthly Fee
(b) Either Party may terminate this Agreement immediately if the other Party ceases to carry on its business; a receiver or similar officer is appointed for the other Party; the other Party becomes insolvent, admits in writing its inability to pay debts as they mature, is adjudicated bankrupt, or makes an assignment for the benefit of its creditors or another arrangement of similar import; or proceedings under bankruptcy or insolvency laws are commenced by or against the other Party.
(c) The termination of this Agreement shall automatically, and without further action by Vendor, terminate and extinguish Customer's right to use the Service.
7. Terms and Conditions. Use of the Service signifies Customer's agreement to the following.
(a) CUSTOMER ACKNOWLEDGES AND AGREES THAT ON BEHALF OF CUSTOMER, CUSTOMER'S EMPLOYER AND/OR EMPLOYEES, IF APPLICABLE, THAT CUSTOMER HAS READ THIS AGREEMENT. If Customer does not agree to the terms and conditions set forth in this Agreement, Customer may not access or otherwise use the Service and should use your browser's "Back" button to exit the Website.
(b) The Application, the Service and the Website are all protected by copyright, trademark, patent and/or other intellectual property laws, pursuant to U.S. copyright laws, international conventions, and other copyright laws. All materials contained on the Website ("Content") are protected by copyright, and are either owned, controlled or licensed by Vendor. Customer will abide by any and all additional copyright notices, information, or restrictions contained in any Content. Unless otherwise explicitly stated on the Website, Customer may print, but may not otherwise download, the Content without the express written consent of Vendor, provided that Customer maintain all copyright and other intellectual property notices contained in such Content.
(c) Vendor may change, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database, or Content. Vendor may also impose limits on certain features and services or restrict Customer's access to parts or all of the Website or Service without notice or liability.
(d) Customer hereby agrees to indemnify, defend and hold Vendor, and any of its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liability and costs, including, without limitation, regulatory penalties, attorneys' fees and costs incurred by the Indemnified Parties in connection with any claim arising out of Customer's use of the Service or the Website or any breach by Customer of this Agreement, including, but not limited to, all liability and costs to Vendor for Customer's infringement of any of Customer's warranties, representations or acknowledgments herein. Customer shall cooperate as fully as reasonably required in the defense of any claim. Vendor reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer and Customer shall not in any event settle any matter related hereto without the written consent of Vendor.
(e) Customer represents, warrants and covenants that Customer shall: (a) ensure that all of Customer's authorized users comply with all of the terms and conditions of this Agreement; (b) not permit any person or entity, other than Customer's authorized users, to use or gain access to the Website or the Service and shall provide reasonable security devices to protect against unauthorized usage of or access thereto; (c) not rent, lease, sublicense, distribute, transfer, copy or modify the Service or the Website or any component thereof; (d) only use the Service for Customer's internal business use and not in the operation of a service bureau or for the benefit of any other person or entity; (e) not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code made available hereunder; (f) not adapt the Service or the Website in any way or use it to create a derivative work; (g) not remove, obscure, or alter Vendor's proprietary notices, trademarks, or other proprietary rights notices affixed or contained in the Service or the Website; (h) not use the Service or the Website in any manner, or in connection with any content, data, hardware, software or other materials provided by Customer or on Customer's behalf or any user (collectively, "Customer Materials"), that (i) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (ii) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (iii) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance; (i) not use the Service or the Website for any illegal, vulgar, pornographic, profane, sexually explicit, obscene, offensive, indecent or immoral purpose, or to transmit communications described in 47 U.S.C. Section 223(b); and (j) ensure that all Customer Materials are free from viruses, worms, Trojan horses and other malicious code.
(f) Both Customer and Vendor acknowledge that successful implementation and use of the Service depends upon Customer's provision of such hardware or software as Vendor may reasonably recommend from time to time (collectively, the "Operating Environment"). Customer shall be responsible for providing the Operating Environment at Customer's own expense.
(g) Vendor shall use commercially reasonable efforts to cause the Service to be accessible to Customer, as specified herein, twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by, Vendor, including, without limitation, any Force Majeure Event (as hereinafter defined). In the event of any interruption or failure of the Service, other than as permitted in accordance with this subparagraph (g), Customer shall promptly notify Vendor thereof.
(h) As between Customer and Vendor, the Website, the Service and the Customer Materials are and shall remain the sole and exclusive property of Vendor, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto. All rights not expressly granted to Customer herein are reserved to Vendor.
(i) The "Indemnified Parties shall give the party from whom indemnification is sought (the "Indemnifying Party"): (a) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim; and (c) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
(j) Customer warrants that the Service will substantially conform in all material respects to the current documentation provided by Vendor in connection with the Service, including, without limitation, any updates thereof (the "Documentation") when used in the Operating Environment in accordance with the Documentation and all of the terms and conditions hereof. In the event that the Service fails to perform in accordance with this warranty, Customer shall promptly inform Vendor of such fact, and, as Customer's sole and exclusive remedy, Vendor shall either: (a) repair or replace the Service to correct any defects in performance without any additional charge to Customer, or (b) in the event that such repair or replacement cannot be done within a reasonable time, terminate this Agreement and provide Customer, as Customer's sole remedy, with a pro rata refund of the Fees paid to Vendor hereunder with respect to such month.
(k) EXCEPT AS EXPRESSLY SET FORTH IN SUBPARAGRAPH (J) ABOVE, VENDOR DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION, THAT THE WEBSITE, THE SERVICE, THE DOCUMENTATION OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET CUSTOMER'S REQUIREMENTS OR THAT CUSTOMER'S USE OF THE WEBSITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT AS EXPRESSLY SET FORTH IN SUBPARAGRAPH (J) ABOVE, VENDOR AND VENDOR'S SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE, IN CONNECTION WITH THE WEBSITE, THE SERVICE, THE DOCUMENTATION OR OTHERWISE, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. THE WEBSITE, THE SERVICE AND THE DOCUMENTATION ARE PROVIDED "AS IS", WITH ALL FAULTS AND DEFECTS, OTHER THAN AS EXPRESSLY SET FORTH IN SUBPARAGRAPH (J) ABOVE.
(l) VENDOR SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFIT, REVENUE, DATA OR GOODWILL, WHETHER INCURRED OR SUFFERED AS A RESULT OF UNAVAILABILITY OF THE SERVICE OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CUSTOMER'S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE IN ANY MONTH ARISING OUT OF OR RELATED TO CUSTOMER'S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR OTHERWISE EXCEED THE AMOUNT OF THE FEES PAID HEREUNDER TO CUSTOMER IN THE MONTH IN WHICH THE DIRECT DAMAGES ARE INCURRED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
(m) All provisions of this Agreement relating to proprietary rights, confidentiality, publicity, disclaimer of warranty and limitation of liability shall survive the expiration or sooner termination hereof.
8. Miscellaneous Provisions.
(a) This Agreement constitutes the final, complete and exclusive agreement between the Vendor and Customer with respect to the subject matter hereof, and supersedes any prior proposals, understandings and all other oral and written agreements between Vendor and Customer relating to the subject matter hereof.
(b) If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
(c) Except for Customer's obligations to pay Vendor hereunder, neither Customer nor Vendor shall be liable to the other party for any failure or delay in performance caused by reasons beyond its or Customer's reasonable control, including, but not limited to, restrictions of law, regulations, orders or other governmental directives, labor disputes, acts of God, third-party mechanical or other equipment breakdowns, fire, explosions, fiber optic cable cuts, interruption or failure of telecommunication or digital transmission links, Internet failures or delays, storms, or other similar events (each, a "Force Majeure Event").
(d) This Agreement shall be governed by the laws of the State of Texas, excluding conflict of laws provisions thereof, and Customer and Vendor hereby submit to exclusive jurisdiction in the federal and state courts of Texas.
(e) Vendor and its personnel or agents, in performance of this Agreement, are acting as independent contractors and not as employees or agents of Customer. Under no circumstance will either Customer or Vendor have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other.