These Method Test Prep Service Terms and Conditions (“Terms and Conditions”) are related to and deemed incorporated into an Order Form between Method Test Prep, Inc., a New York corporation reachable at 303 Sunnyside Blvd, Ste. 20, Plainview, NY 11803 (“MTP”) and the applicable client specified in the Order Form (the “Client”). Client’s execution of an Order Form, as defined below, referencing these Terms and Conditions shall be deemed Client’s agreement to these Terms and Conditions. In the event of any conflict between the terms of the Order Form and these Terms and Conditions, the Terms and Conditions shall control with respect to such conflicting terms unless specifically stated otherwise by referencing the conflicting sections specifically and signed by both parties.
1. ACCESS GRANT. MTP grants to Client, a personal, revocable, non-assignable, nontransferable, nonexclusive, non-sublicensable right to access and use the Services and the User Documentation only as authorized in the Agreement, for its own purpose and operations, during the Term. Client acknowledges that, other than any workbooks provided in hard copy, the Services will not be delivered to Client in any form of media and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. Instead, the Services will be hosted by MTP and accessed and used by Client through the use of the Internet and Client’s computers.
2. ACCESSIBILITY. MTP will make the Services available for Client’s use during the Term on Client’s computer systems that meet the MTP system recommendations, which Client acknowledges it has reviewed. MTP will provide Client with access to the latest supported version of the Services via the Internet, except for scheduled system back-up or other on-going maintenance as required. For Clients that subscribe to Services through a Third-Party Provider, Clients and their Users must access Services through such Third-Party Provider’s systems. If for any reason Client or any related User is unable to access the Services through such Third-Party Provider’s systems, MTP may (but is not required to) provide Client direct access to Services for the remainder of the current Term.
3. LIMITATIONS. The maximum number of Users that are simultaneously accessing or using the Services at any given time shall not exceed the site-wide limit specified in the Order Form. Client’s use of the Services may not exceed the scope of the use provisions without the express written agreement of MTP and Client’s payment of an increased Subscription Fee (based on the then-current list price).
4. FEES AND PAYMENT. Client shall pay a “Subscription Fee” on an annual basis during the Term, as described in the Order Form. The Subscription Fee for any Renewal Term (defined below) may be subject to an inflationary adjustment defined at the time of renewal. Client shall pay all amounts due hereunder within thirty (30) days of its execution of an Order Form or after its receipt of an invoice for any Renewal Term or other fees due hereunder, as applicable. Any amounts not so paid when due shall thereafter bear interest at the rate of 1.5% per month or the maximum amount permitted by applicable law, whichever is less.
5. TERM AND TERMINATION.
5.1 Initial Term; Renewal Terms. The Term will commence when MTP begins making the Services available to the Client. The Term shall continue in effect for a period of twelve (12) months (the “Initial Term”), unless sooner terminated as provided in the Agreement.
5.2 Termination for Breach. Either Client or MTP may terminate the Agreement as a result of a material breach of the Agreement by the other party, if (a) such party provides written notification to the other party of the material breach, and (b) such material breach is not resolved within thirty (30) days of notification. Client agrees to a 20% restocking fee on all Services for failure to pay fees in a timely manner. In the event of termination of the Agreement for any reason, Client’s access and use of the Services shall cease immediately with no further recourse to MTP.
5.3 Survival. The terms of Sections 8,9,10,11,12, 13,16,17 and 18 of these Terms and Conditions shall survive the termination of the Agreement.
6. MAINTENANCE, AVAILABILITY, CONTENT. MTP and/or its hosting or telecommunications vendor(s) may perform system maintenance and upgrades during non-peak hours. Client understands and agrees that there may be instances where MTP needs to interrupt access to the Services without notice in order to protect the integrity of the Services due to security issues, virus attacks, spam issues or other unforeseen circumstances. MTP reserves the right to review Content in its discretion. MTP reserves the right to (a) disable access to or delete any Content which it determines in its sole discretion (such discretion to be exercised in good faith) to be illegal, obscene, threatening, defamatory, fraudulent, infringing, harassing, or otherwise offensive, and (b) disable access to or delete any other Content, as such circumstances are determined in good faith by MTP.
7. CLIENT RESPONSIBILITIES. Client is also responsible for providing support for all Users and ensuring that Users comply with the Agreement with respect to use of the Services. Client shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to Services. Client must notify MTP in advance if any Users are children under the age of 13 and assist MTP, if applicable, in obtaining verifiable parental consent prior to registration. Client is responsible for ensuring the confidentiality of Users’ accounts and passwords, and to immediately notify MTP of any unauthorized access, use or breach of security of an MTP account. Client will comply with any applicable laws and regulations pertaining to this Agreement.
8. INTELLECTUAL PROPERTY RIGHTS. Client agrees that the User Documentation and Services are proprietary products and services, and that all right, title and interest in and to the User Documentation and Services, including all associated intellectual property rights, are and shall at all times remain with MTP and its third party licensors. The Services contain trade secret and proprietary information owned by MTP or its third party licensors and is protected by United States copyright laws, trademark laws and international trade provisions. Client must treat the Services like any other copyrighted material and Client may not copy or distribute the Services or the User Documentation, electronically or otherwise, for any purpose. Client hereby grants to MTP a worldwide, irrevocable, fully-paid, nonexclusive right to use all Content as necessary for MTP’s business.
9. OTHER RESTRICTIONS. Client agrees not to reproduce, duplicate, copy, sell, resell or exploit for any purpose, commercial or otherwise, any portion of the Services, use of the Services, or access to the Services. Client may not make any attempt to ascertain, derive or obtain the source code for the Services. Client will not use the Services to take any actions that (i) infringe on any third party’s proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) are defamatory, trade libelous, threatening, harassing, or obscene; or (iv) constitute unauthorized entry to any machine accessible via the network. Client will comply with MTP’s usage policies as stated in the Agreement and located on MTP’s website. Client shall not make any modifications to the Services. Any modifications that Client makes to the Services will constitute a material breach of the Agreement.
10. CONFIDENTIAL INFORMATION. All information disclosed by MTP to Client in connection with the Agreement that is identified at the time of disclosure as being confidential or should be reasonably understood to be confidential or proprietary shall be treated as confidential information unless it is or becomes publicly available through no fault of Client, is already known to Client, or is later rightfully obtained by Client from independent sources. MTP’s confidential information shall be held in strict confidence by Client, and shall not be used or disclosed by Client for any purpose except as necessary to implement or perform the Agreement. Without limiting the generality of the foregoing, such confidential information includes the terms of the Agreement, including all pricing.
11. INDEMNITY. Client shall indemnify and defend MTP, its partners and each of their respective directors, officers, employees, agents, and affiliates against any claims (i) resulting from Client’s or its Users use of the Services or access to MTP’s website (or any unauthorized access to MTP’s website resulting from Client’s or its Users’ failure to control the access granted herein); (ii) that any Content infringes or violates any rights of another; or (iii) relating to Client’s or Users’ failure to comply with the Agreement.
12. DISCLAIMER OF WARRANTIES. MTP DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT IN USING THE SERVICES, OR THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. MTP EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (BY ANY TERRITORY OR JURISDICTION) TO THE EXTENT PERMITTED BY LAW, AND FURTHER MTP EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY TO THE EXTENT PERMITTED BY LAW.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL MTP BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST PROFITS, OPPORTUNITIES OR CONTRIBUTIONS, LOSS OF USE, GOOD WILL, BUSINESS INTERRUPTION, COST OF COVER, OR OTHER PECUNIARY OR NON-PECUNIARY LOSS, HOWEVER ARISING, EVEN IF MTP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE TO THE ALLOCATION OF RISK SET FORTH HEREIN.
14. FORCE MAJEURE. Neither party shall be liable for any failure to perform its obligations under the Agreement if prevented from doing so by a cause or causes beyond its control.
15. INDEPENDENT CONTRACTOR STATUS. MTP performs the Services as an independent contractor, not as an employee of Client. Nothing in the Agreement is intended to construe the existence of a partnership, joint venture, or agency relationship between Client and MTP.
16. NOTICES. All notices or other communications referenced under the Agreement shall be made in writing and sent to “Attention: Chief Operation Officer” at MTP’s address designated above and to Client’s address set forth in the Order Form, or to the address otherwise designated from time to time in writing by the Parties. All notices shall be deemed given to the other party if delivered receipt confirmed using one of the following methods: registered or certified first-class mail, postage prepaid; recognized courier delivery; or electronic mail.
17. DISPUTE RESOLUTION. Any disputes or claims under the Agreement or its breach shall be submitted to the exclusive jurisdiction of the courts located in Suffolk, New York, and the laws of New York shall be applied, excluding choice of law principles.
18. ASSIGNMENT. The Agreement shall not be assigned by Client without the prior written consent of MTP. Any attempted assignment in violation of this provision shall be null and void. Subject to the foregoing, the Agreement is binding upon, inure to the benefit of, and are enforceable by the Parties hereto and their respective successors and assigns.
19. MISCELLANEOUS. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy. If any provision of the Agreement are held to be unenforceable, the other provisions shall nevertheless remain in full force and effect. The failure by either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach of the Agreement will not be deemed a waiver by that party as to the subsequent enforcement of rights or subsequent actions in the event of future breaches. The Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof and all other agreements, representations, communications and understandings, both oral and written, are superseded hereby.
20. DEFINITIONS. As used in these Terms and Conditions, the following terms shall have the following meaning: “Agreement” means these Terms and Conditions, any Order Forms, and any other materials available on MTP’s website all of which are specifically incorporated by reference herein, as may be updated by MTP from time to time in its sole discretion; “Content” means any data, information, files, images, text or other content that may be provided by Client or Users for use in conjunction with the Services; “Order Form” means the form evidencing the initial Services and any subsequent Order Forms, specifying, among other things, the number of users and other services contracted for, applicable fees, billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of the Agreement; “Services” means resources, including workbooks, lessons, learning methods, tips, strategies, practice questions, and other products and services provided by MTP pursuant to the Agreement; “Term” means the period during which the Services will be provided by MTP to Client, including the Initial Term and any Renewal Terms (as each is defined in Section 5.1); “Third-Party Provider” means any MTP pre-approved third-party that contracts directly with Client to provide access to the Services through the provider’s equipment and web portal; “User Documentation” means the MTP user documentation relating to the Services including those set forth on MTP’s website; “Users” means Client’s authorized users who are active students who have accessed their Services’ profile within the previous 180 days.