1. SCOPE OF AGREEMENT
1.1 Definitions: As used in this Agreement, the following terms shall have the following meanings:
- "Contract Year" means any given twelve-month period ending on an anniversary of the Effective Date.
- "Service(s)" means usage of the web site known as www.besprep.com, and any improved versions of the product(s) introduced by BESPREP from time to time.
- "Specifications" means the specifications for the services or products set forth of Exhibit A, as supplemented or amended by BESPREP from time to time.
- "The Member School" means any school who has purchased membership in www.besprep.com.
- "Participating Students" means the student for whom the membership was paid for.
2. MEMBER USAGE AND PRIVILEGES:
The Member School, purchaser of this membership, is entitled to the use and the limited reproduction of the materials published on the internet web site www.besprep.com as per access to such pages (math, reading, writing, science) bought. The member school is granted access and may use the on-line tests for their participating students, print the pages for their participating students and use the teaching strategy presentations for their participating students.
3. PRICES AND PAYMENT:
3.1 Price
The prices for the Service for the first twelve (12) months of this Agreement (the first "contract year") are as set forth on Exhibit A (Annual Catalog). Prices do not include applicable sales or use taxes which shall be separately stated on BESPREP invoices and borne by The Member School. In addition, an initial account set up fee of $350.00 is required for schools with less than eight (8) participating students.
3.2 Price Changes
The prices set forth on Exhibit A (Annual Catalog) shall be revised annually, on or before the start of each Contract Year, to reflect any increase or decrease in manufacturing costs for the service reasonably projected by BESPREP for the next Contract Year. The first pricing review will occur ten (10) months after the Effective Date of this Agreement. Price changes are not effective unless mutually agreed to in writing, with the change being effective with respect to invoices for membership renewal during the next ensuing Contract Year.
3.3 Taxes
The Member School shall be responsible for all VAT, sales, use and other similar taxes applicable to services supplied under this Agreement, unless The Member School provides written proof of exemption.
3.4 Payment
BESPREP shall issue invoices for Service on or after the date of shipment. Payment shall be due within thirty (30) days from the date of invoice. A late charge at the rate of one and one-half percent (1 ½%) per month or the highest rate allowed by law, whichever is lower, shall be applied to the total invoice price for payments not received within sixty (60) days after the date of invoice.
4. SOFTWARE LICENSE.
The Member School is granted a non-exclusive license during the term of this Agreement to use the Services purchased hereunder in accordance with this Agreement. The Member School agrees that all Services under this Agreement are only for such use, and that such Service shall not be sold nor shall title thereto be transferred to other schools, districts or parties other than the license rights specifically set forth in this section. BESPREP shall retain all ownership right, title and interest in the Service furnished to The Member School pursuant to this Agreement. Except as separately agreed to by BESPREP, The Member School may not modify in any way, or copy or otherwise reproduce in any form, any computer program (including manuals and other supplied documentation) supplied with the Service or purchased hereunder. The Member School will comply with the policies and requirements of BESPREP in effect from time to time with respect to (i) the licensing by BESPREP of its proprietary, protected or confidential material and information and (ii) any Products which are subject to one or more license agreements between BESPREP and third parties.
5. ACCOUNT, PASSWORD AND SECURITY
The Member School is responsible for maintaining the confidentiality of his or her account identifier and password. The Member School shall be responsible for all uses of his or her Account, whether or not authorized by The Member School. The Member School agrees to immediately notify BESPREP of any unauthorized use of his or her Account or any other breach of security. The Member School agrees to exit from his or her Account after usual usage. The Member School understands and agrees that the technical processing and transmission of any content may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
6. NO RESALE OF SERVICE
The Member School agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
7. PROPRIETARY NOTICES.
This software and documentation constitute several published and unpublished works and contain valuable trade secrets and proprietary information belonging to BESPREP. None of the foregoing material may be copied, duplicated or disclosed without the express written permission of BESPREP.
8. PRODUCT WARRANTY, DISCLAIMER OF WARRANTIES
8.1 Product Warranty
BESPREP warrants to The Member School that the Products purchased hereunder shall be free from defects in materials and workmanship, and shall conform in all material respect to the Specifications for a period of fifteen (15) days from the date of delivery thereof, provided the Service in question has been used in accordance with ordinary industry practices and conditions. BESPREP DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. BESPREP DOES NOT GUARANTY AN EXEMPLARY RATING FROM THE TEXAS EDUCATION AGENCY.
8.2 Remedies
In the event that a Product does not comply with the product warranty set out in Section 8.1 and such Membership is canceled within the warranty period by The Member School prepaid, BESPREP will refund any prepaid fees.
8.3 Disclaimer of Warranties
The foregoing express warranties are limited to BESPREP and are not transferable and are in lieu of any other warranty by BESPREP with respect to Services furnished hereunder. BESPREP GRANTS NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. PROPRIETARY INFORMATION:
9.1 Protection of Proprietary Information
BESPREP and The Member School agree to keep in confidence and not disclose to others all knowledge, information and data furnished to either by the other party and claimed by the other party to be proprietary, provided such information is given in writing or, if oral, is reduced to writing within thirty (30) days and such writing is marked to indicate the claims of ownership and/or secrecy. BESPREP and The Member School agree that neither shall use, nor reproduce for use in any way, any proprietary information of the other except in furtherance of the relationship set forth herein. BESPREP and The Member School agree to protect the proprietary information of the other with the same standard of care and procedures used by each to protect its own proprietary information of similar importance but at all times using at least a reasonable degree of care.
9.2 Limitations
Section 9.1 shall not be applicable and shall impose no obligation on a party with respect to any portion of proprietary information which:
- Was at the time received or which thereafter becomes, through no act or failure on the part of such party, generally known or available to the public;
- Is known to such party at the time of receiving such information as evidenced by documentation then rightfully in the possession of either party;
- Is furnished to others by the other party without restriction of disclosure;
- Is thereafter rightfully furnished to such party by a third party without restriction by that third party on disclosure; or
- Has been disclosed pursuant to the requirements of law or court order without restrictions or other protection against public disclosure; provided, however, that the other party shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.
9.3 Survival
The covenants of confidentiality set forth herein shall survive and continue and be maintained from the Effective Date hereof until three (3) years after termination of this Agreement.
10. TERM AND TERMINATION.
10.1 Term. The initial term of this Agreement shall commence upon the Effective Date and shall continue for a period of one (1) Contract Year (the "Initial Term"). Thereafter, this Agreement shall be renewed for successive one- (1) year terms unless terminated by either party.
10.2 Termination. This Agreement may be terminated as follows:
- At any time upon mutual written agreement of the parties;
- By BESPREP upon two (2) days written notice to The Member School for failure by The Member School to make payment for Products when due, unless such failure is cured within the two (2) day period; or
- By either party if (i) the other party is in material breach of its obligations hereunder and such breach continues uncured for a period of thirty (30) days after written notice to the defaulting party, or (ii) the other party makes a general assignment for the benefit of its creditors, appoints or has appointed a receiver, trustee in bankruptcy or similar officer to take charge of all or part of its property, files or has a petition filed against it in any bankruptcy (unless such petition is dismissed within sixty (60) days of its filing), and/or is adjudged insolvent or bankrupt.
11. MISCELLANEOUS.
11.1 Successors and Assigns. The rights and obligations of either party shall not be transferable without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. All obligations of the parties herein shall be binding upon their respective successors or assigns.
11.2 Choice of Laws. This Agreement shall be governed by, and its terms shall be construed in accordance with, the laws of the State of Texas.
11.3 Waiver. No waiver or breach of any term or condition of this Agreement shall operate as a waiver of any other breach of such term or condition, or of any other term or condition, nor shall any failure to enforce any provisions hereunder operate as a waiver of such provision or any other provision hereunder.
11.4 Severability. In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, except in those instances where removal or elimination of such invalid, illegal, or unenforceable provision or provisions would result in a failure of consideration under this Agreement, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never been contained herein.
11.5 Notices. All notices hereunder shall be in writing and shall be deemed to have been duly given and shall be effective only upon receipt.
11.6 Headings. Headings used in this Agreement are for the purpose of reference only and are not to be considered in construction or interpretation of this Agreement.
11.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed one and the same instrument.
11.8 Entire Agreement; Amendment. This Agreement, including the Exhibits, contains the entire Agreement between the parties relating to the subject matter hereof. All prior agreements and all prior negotiations, representations and communications relating to the same subject are superseded by this Agreement. This Agreement may not be modified other than by a written document signed by an authorized representative of each party.