LTG EXAM PREP PLATFORM, INC.
LEAD GENERATION TERMS AND CONDITIONS
PLEASE READ THESE TERMS and conditions CAREFULLY BEFORE USING the product(s) (as defined below) OFFERED BY LTG EXAM PREP PLATFORM, INC. (“LTG”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE PRODUCT(S). BY USING THE PRODUCT(S), YOU AGREE TO BE BOUND BY THese terms and conditions.
LTG MAY MODIFY, AMEND OR CHANGE THESE TERMS AND CONDITIONS FROM TIME TO TIME AT ITS SOLE DISCRETION BY POSTING A NEW VERSION OF THESE TERMS AND CONDITIONS AT THE URL: www.prep4gmat.com/lead-terms/. These terms and conditions as may be in effect from time to time, are hereinafter defined as “TERMS and conditions” or “the AGREEMENT.”
These Terms and Conditions form an integral part of each Product Order corresponding to these Term and Conditions and executed by Customer and LTG, pursuant to which LTG shall make available to Customer the LTG products, services and data (collectively, the “Product(s)”) identified on each Product Order corresponding to these Terms and Conditions.
- Provision of the Product(s).
- Product Orders. The parties may enter into one or more product orders hereunder, each setting forth relevant details for specified LTG Product(s) which LTG shall provide to the Customer (each, a “Product Order”). Each Product Order shall (a) be titled a “Product Order”, (b) be executed by both parties, (c) reference these Term and Conditions, and (d) set forth the Product(s) covered thereby and the Initial Term for each Product. Any conflict between any Product Order and these Terms and Conditions shall be governed in the following order of precedence: (i) these Terms and Conditions, then (ii) the applicable Product Order; provided that a Product Order may expressly modify any provision in these Terms and Conditions (which modification must reference the modified term or condition herein, including the Section number thereof), which modification shall apply only as to such Product Order.
- Grant of Rights. Subject to the terms and conditions of these Terms and Conditions, LTG hereby grants to Customer a limited, non-exclusive, non-transferable right for [the number of] Authorized Users (as defined below) set forth in the applicable Product Order to access and use the relevant Product during the applicable Product Term, solely for Customer’s internal business purposes. An “Authorized User” shall mean an employee or independent contractor of Customer. Customer is also bound by any further restrictions set forth the Product Order. All rights not expressly granted to Customer are reserved by LTG and its licensors. There are no implied rights.
- Passwords. LTG shall issue Customer with passwords for use by Authorized Users for access to the relevant Product. Customer and Authorized Users shall keep the passwords confidential and not share them with any other party, including any employees or other third parties who are not Authorized Users for the relevant Product. Customer shall be responsible for all use of passwords issued to Customer. Customer shall promptly notify LTG if any password is lost, stolen or otherwise compromised, to allow LTG to deactivate the password.
- Restrictions. Each Product, which includes all data and information (“Data”) and software (“Software”) comprised in such Product, may not be disclosed or made available to any third party by Customer, including (a) the provision to any third party of a product or service that uses or is based on Data in any way, (b) the disclosure of any Data to third parties, or (c) the inclusion of Data in a database or report that is made available to third parties. Customer may not (i) modify the Product or any part of it, (ii) copy any Data, (iii) merge, manipulate, process or store the Data, or (iv) access, copy, sell, lease, reverse engineer, decompile or attempt to discover the source code for the Software. Customer shall not voluntarily produce Data in legal proceedings. Customer and all Authorized Users shall comply with these Terms and Conditions. All acts and omissions of Authorized Users shall be deemed to be those of Customer, and Customer shall be responsible therefor. Without limiting any of its other rights or remedies, LTG reserves the right to suspend any Authorized User’s right to access a Product if LTG reasonably believes that such Authorized User has materially violated the restrictions and obligations in these Terms and Conditions (in which case, it shall provide Customer prompt written notice of such suspension).
- Customer Cooperation. Customer shall: (a) reasonably cooperate with LTG in all matters relating to the Products; (b) respond promptly to any LTG request to provide information, approvals, authorizations or decisions that are reasonably necessary for LTG to provide the Products in accordance with these Terms and Conditions; and (c) provide such Customer materials or information as LTG may reasonably request to provide the Products and ensure that such materials or information are complete and accurate in all material respects.
- Downtime. LTG shall use commercially reasonable efforts to provide access to the Products twenty-four (24) hours a day, seven (7) days a week. Customer agrees that from time to time the Products may be inaccessible or inoperable for various reasons, including (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which LTG may undertake from time to time; or (c) causes beyond the reasonable control of LTG, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). LTG shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Product in connection with Downtime, whether scheduled or not.
- Ownership. Customer acknowledges and agrees that as between LTG and Customer, all right, title and interest in and to each Product, including the applicable Data and Software and all improvements and derivatives of the foregoing (including all intellectual property and proprietary rights embodied therein or associated therewith) are and shall remain owned by LTG or its licensors, and these Terms and Conditions in no way conveys any right, title or interest in any Product other than a limited right to use the Product in accordance with the terms and conditions herein. No right or license is granted hereunder to Customer under any trademarks, service marks, trade names or logos. Customer shall not remove any LTG trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from any Product.
- Fees; Payments; Taxes. Customer shall pay LTG the fees for each Product specified in the applicable Product Order and any taxes levied on Customer’s license of the Product. Customer shall be invoiced monthly with the first invoice issued on the Order Effective Date of the applicable Product Order. Customer shall pay all invoices within thirty (30) days from the date of invoice. LTG reserves the right to charge interest on unpaid balances at the rate of one percent (1%) per month or (if lower) the maximum amount permitted by law. Customer agrees to pay all of LTG’s costs of collection, including reasonable attorney’s fees, in the event Customer fails to pay fees due hereunder.
- Term; Termination.
- Product Term. The “Product Term” for each Product shall begin on the Order Effective Date set forth in the applicable Product Order and, unless earlier terminated as provided herein, shall continue for the Initial Term set forth for such Product in such Product Order.
- Termination. In the event of a material breach of any Product Order or of these Terms and Conditions, the non-breaching party may terminate such Product Order and these Terms and Conditions, provided that the breaching party fails to cure such material breach within thirty (30) days after notice of that breach. Any such termination shall be effective upon ten (10) days’ notice of termination. Upon such termination, Customer shall cease all use of all Products. All accrued rights and liabilities, and any provisions which by their nature should reasonably survive, shall survive termination or expiration of a Product Order and these Terms and Conditions, as applicable.
- Customer Data.
- Data Generally. All data and information which the Customer inputs into a Product (the “Customer Data”) is stored in a private and secure fashion, and will not be used by LTG except as permitted herein. Customer hereby grants to LTG a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Customer Data solely in connection with providing the Products to Customer, and improving and developing the Products. In addition, LTG may analyze Customer Data, and data of other Customers, to create aggregated or anonymized statistics or data that do not identify Customer or any individual, and LTG may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in these Terms and Conditions, Customer shall be solely responsible for providing, updating, uploading and maintaining all Customer Data. The content of Customer Data shall be Customer’s sole responsibility. LTG shall operate the Products in a manner that provides reasonable information security for Customer Data, using commercially reasonable data backup, security, and recovery protections.
- Additional Customer Responsibilities. Customer is solely responsible for all Customer Data. LTG does not guarantee the accuracy, integrity or quality of Customer Data. Customer shall not: (a) upload or otherwise make available to LTG any Customer Data that is unlawful or that violates the rights of any third parties; (b) upload or otherwise make available to LTG any Customer Data that Customer does not have a right to transmit due to any law, rule, regulation or other obligation; (c) use, upload or otherwise transmit any Customer Data that infringes any intellectual property or other proprietary rights of any third party; (d) upload or otherwise make available to LTG any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy, limit the functionality of any computer software or hardware or telecommunications equipment; (e) interfere with or disrupt the Products or servers or networks connected to the Products; or (f) violate any applicable law, rule or regulation, including those regarding the export of technical data.
- Representations and Warranties; Disclaimer.
- General Representations and Warranties. Each party hereby represents and warrants to the other party that: (a) it is a corporation, company or other entity (as applicable) duly organized, validly existing and in good standing in its jurisdiction of organization; (b) its execution, delivery and performance of these Terms and Conditions have been duly and validly authorized by all necessary organizational action on its part; (c) the provisions set forth in these Terms and Conditions constitute legal, valid, and binding obligations of such party enforceable against such party in accordance with their terms, subject to bankruptcy, insolvency and other laws affecting creditors’ rights generally; and (d) its execution, delivery and performance of these Terms and Conditions do not and will not conflict with, result in a breach of, constitute a default under, or require the consent of any third party under, any agreement or other obligation to which such party is subject.
- LTG Limited Warranty. LTG does not warrant that it will be able to correct all reported defects or that use of any Product will be uninterrupted or error free. LTG makes no warranty regarding features or services provided by any third parties. LTG retains the right to modify its services and the Products in its sole discretion. Customer’s sole remedy for LTG’s breach of the warranty in this paragraph shall be that LTG shall remedy the applicable error, or if LTG is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the applicable Product for the period during which the breach of warranty occurred.
- Disclaimer. LTG makes no representation or warranty as to the standard of any Data, including the accuracy, timeliness, categorization, or completeness thereof. Customer acknowledges that errors in Data will occur and that Data is provided “as is”, without warranty. Furthermore, the purposes for which Customer uses any Product are at Customer’s own risk. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, LTG HEREBY EXCLUDES ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES ARISING THROUGH COURSE OF PERFORMANCE OR USAGE OF TRADE. IN ADDITION, ALTHOUGH LTG WILL TAKE REASONABLE MEASURES TO PROVIDE REASONABLE ACCESS TO THE WEBSITE HOSTING EACH PRODUCT (IF APPLICABLE), LTG HEREBY DISCLAIMS ANY AND ALL LIABILITY PERTAINING TO (I) THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR (II) ANY IMPAIRMENT OR DISRUPTION OF CUSTOMER’S CONNECTION TO THE INTERNET OR ACCESS TO ANY PRODUCT.
- Limitations of Liability.
- Damages Cap. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, LTG’S TOTAL LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO ANY PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO LTG UNDER THIS AGREEMENT DURING THE PRIOR 12 MONTHS.
- Disclaimer of Indirect Damages. EXCEPT FOR (A) CUSTOMER’S OBLIGATION TO PAY ALL AMOUNTS DUE HEREUNDER, (B) ITS INDEMNIFICATION OBLIGATIONS OR (C) ITS BREACH OF ANY INTELLECTUAL PROPERTY OR CONFIDENTIALITY OBLIGATIONS OR RESTRICTIONS HEREIN (INCLUDING ANY LIMITATIONS OR RESTRICTIONS ON USE OF THE PRODUCTS), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOSS OF DATA, PROFITS OR REVENUE) ARISING OUT OF OR RELATED TO THE PRODUCTS OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
- Basis of the Bargain. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A FUNDAMENTAL BASIS OF THE BARGAIN, THAT LTG HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THEY SHALL APPLY NOTWITHSTANDING THAT ANY REMEDY SHALL FAIL ITS ESSENTIAL PURPOSE.
- LTG Indemnification. LTG shall defend, indemnify and hold harmless Customer and its directors, officers, employees and agents (“Customer Indemnified Parties”) from and against any third party claims, actions, proceedings, demands, lawsuits, damages, liabilities and expenses (including reasonable attorneys’ fees and court costs) (collectively, “Claims”) to the extent based on any claim that any Product infringes, misappropriates or otherwise violates (collectively, “Infringes”) any third party intellectual property or proprietary right (excluding patents).
- Indemnification Process. As conditions of the indemnification obligations in Sections 9.1 and 9.2 above: (a) the applicable Customer Indemnified Party or LTG Indemnified Party (the “Indemnitee”) will provide the indemnifying party (the “Indemnitor”) with prompt written notice of any Claim for which indemnification is sought (provided that failure to so notify will not remove the Indemnitor’s indemnification obligations except to the extent it is prejudiced thereby), (b) the Indemnitee will permit the Indemnitor to control the defense and settlement of such Claim, and (c) the Indemnitee will reasonably cooperate with the Indemnitor in connection with the Indemnitor’s evaluation, defense and settlement of such Claim. In defending any Claim, the Indemnitor shall use counsel reasonably satisfactory to the other party. The Indemnitor shall not settle or compromise any such Claim or consent to the entry of any judgment without the prior written consent of the other party (not unreasonably withheld).
- Definition. “Confidential Information” means information that is disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) hereunder during the Term that is clearly labeled or identified as confidential or proprietary when disclosed, or that, under the circumstances, should reasonably be treated as confidential, except that “Confidential Information” shall not include any information that (a) is or becomes generally known to the public through no fault of, or breach of these Terms and Conditions by, the Receiving Party; (b) is rightfully in the Receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) is rightfully obtained by the Receiving Party from a third party without restriction on use or disclosure. In addition, (i) the terms and conditions of these Terms and Conditions shall be deemed to be Confidential Information of both parties; and (ii) the Products, including the applicable Data and Software, shall be deemed Confidential Information of LTG, regardless of whether or not they are labeled or identified, or would reasonably be considered confidential.
- General Obligations. Each party agrees that it will during the Term and thereafter (a) not disclose the other party’s Confidential Information to any third party (other than as permitted in the last sentence of this paragraph); (b) use the other party’s Confidential Information only to the extent reasonably necessary to perform its obligations or exercise its rights under these Terms and Conditions; (c) disclose the other party’s Confidential Information only to those of its employees and independent contractors who reasonably need to know such information for purposes of these Terms and Conditions and who are bound by confidentiality obligations offering substantially similar protection to those in this Section 10; and (d) protect all Confidential Information of the other party from unauthorized use, access, or disclosure in the same manner as it protects its own confidential information of a similar nature, and in no event with less than reasonable care. Notwithstanding the above, this paragraph shall not prohibit: (i) a party from disclosing Confidential Information of the other party to the extent required by applicable law, rule or regulation (including a court order or other government order) or the rules and regulations of the SEC or any national securities exchange; provided that such party provides the other party prior written notice of such disclosure, to the extent practicable, and reasonably cooperates with efforts of the other party to seek confidential treatment thereof, to the extent such cooperation is requested by the other party; or (ii) a party from disclosing the terms and conditions of these Terms and Conditions to its attorneys and financial advisors, or current or potential lenders, other sources of financing, investors or acquirors; provided that such third parties are bound by confidentiality obligations offering substantially similar protection to those in this Section 10 (provided further that such third parties are only permitted to use such information for the purpose of advising, lending or providing financing to, or investing in or acquiring, such party, as applicable).
- Return or Destruction. Except as otherwise expressly provided in these Terms and Conditions, the Receiving Party will return to the Disclosing Party, or destroy or erase, the Disclosing Party’s Confidential Information in tangible form, upon the termination of these Terms and Conditions; provided that (a) Receiving Party may retain a copy of Disclosing Party’s Confidential Information solely for the purposes of tracking Receiving Party’s rights and obligations hereunder with respect thereto, (b) Receiving Party may retain copies of Disclosing Party’s Confidential Information solely to the extent required by law or by applicable professional standards which require such party to retain copies of its working papers, and (c) Receiving Party may retain Disclosing Party’s Confidential Information solely to the extent reasonably necessary for Receiving Party to exercise rights or perform obligations under these Terms and Conditions that survive such termination.
- Feedback. Notwithstanding the above or anything to the contrary herein, to the extent that Customer at any time provides LTG with any feedback or suggestions regarding any Product, including potential improvements or changes thereto (collectively, “Feedback”), the Feedback shall not be considered Confidential Information of Customer, and LTG shall be free to use, disclose, and otherwise exploit in any manner, the Feedback for any purpose.
- Compliance with Laws. Each party shall comply with all laws, rules, regulations and ordinances applicable to its activities hereunder.
- Hosting Providers. Customer acknowledges that the Products are hosted by third party hosting providers (the “Hosting Contractors”). LTG may change its Hosting Contractors at any time. Customer’s use of any Product is subject to any applicable restrictions imposed by the Hosting Contractors. Notwithstanding any other provision of these Terms and Conditions, LTG shall not be liable for any problems, failures, defects or errors with any Product to the extent caused by the Hosting Contractors. Customer acknowledges that the fees payable for each Product reflect the fact that LTG is not responsible for the acts and omissions of the Hosting Contractors.
- Assignment. Customer may not assign these Terms and Conditions, or assign any of its rights or delegate any of its obligations under these Terms and Conditions, without the prior written consent of LTG. LTG may freely assign these Terms and Conditions, or assign any of its rights or delegate any of its obligations under these Terms and Conditions. Any purported assignment or delegation in violation of this paragraph is null and void. These Terms and Conditions will bind and inure to the benefit of each party’s successor and permitted assigns.
- Entire Agreement. These Terms and Conditions and the corresponding Product Order contain the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, oral or written, with respect thereto. No pre-printed terms on any purchase order, invoice or similar document issued in relation to these Terms and Conditions shall have any effect on the parties or these Terms and Conditions.
- Notices. Unless otherwise specifically provided herein, all notices required or permitted by these Terms and Conditions shall be in writing and may be delivered personally, or may be sent by facsimile, overnight delivery or certified mail, return receipt requested, to the addresses set forth in the Product Order, unless the parties are subsequently notified of any change of address in accordance with this Section. Any notice shall be deemed to have been received as follows: (a) by personal delivery, upon receipt; (b) by facsimile or guaranteed overnight delivery, one business day after transmission or dispatch; or (c) by certified mail, as evidenced by the return receipt. If notice is sent by facsimile, a confirming copy of the same shall be sent by mail to the receiving party.
- Force Majeure. LTG shall not be liable or responsible to Customer, nor be considered to have defaulted or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any provision of these Terms and Conditions to the extent such failure or delay is caused by or results from any act, circumstance or other cause beyond the reasonable control of LTG, including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable technology or components, telecommunication breakdown, or power outage.
- Publicity. LTG shall have the right to use Customer’s name and logo on client lists published on LTG’s website and in marketing materials. LTG may announce the relationship hereunder in a press release provided that LTG obtains Customer’s prior approval of the wording of the release (not unreasonably withheld).
- Choice of Law. These Terms and Conditions is and will be governed by and construed under the laws of The Commonwealth of Massachusetts, USA, without giving effect to any conflicts of laws provision thereof or of any other jurisdiction that would produce a contrary result. The parties hereby consent to the jurisdiction of any federal or state court located in The Commonwealth of Massachusetts for any claim or other proceeding related to these Terms and Conditions or their activities hereunder, and waive any objections of improper venue or inconvenient forum.
- Injunctive Relief. Each party acknowledges that its breach of any intellectual property or confidentiality obligations or restrictions herein (including any limitations or restrictions on use of the Products) will cause substantial harm to the other party that could not be remedied by payment of damages alone. Accordingly, the other party will be entitled to seek preliminary, temporary and permanent injunctive relief, and other equitable relief, for any such breach, without any requirement to post bond, in any court of competent jurisdiction.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise or employment relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Waiver. No waiver by either party of any of the provision of these Terms and Conditions is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Severability. If any provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of these Terms and Conditions or invalidate or render unenforceable such provision in any other jurisdiction.
- Headings; Interpretation. Headings are provided for convenience only and will not be used to interpret the substance of these Terms and Conditions. Unless the intent is expressly otherwise in specific instances, use of the words “include,” “includes,” or “including” in these Terms and Conditions shall not be limiting and “or” shall not be exclusive.
Last Updated: September 23, 2015