Page 2 of 4 ACT Online Prep Terms and Conditions 20190807
ACT Online Prep Order Form Terms and Conditions
Customer (identified on the Order Form to which these Terms and Conditions are attached) desires to purchase and ACT, Inc.
(“ACT”) desires to provide, a license to the ACT Online Prep™ subscription service. In consideration of the foregoing, ACT and the Customer,
intending to be legally bound, agree that the Agreement, defined below, governs ACT’s license and delivery of Licensed Products:
1. Definitions. The following terms used herein have the
meanings set forth on the ACT Online Prep Order Form and in
these Terms and Conditions.
“Agreement” means these Terms and Conditions and the ACT
Online Prep Order Form (the “Order Form”) to which these Terms
and Conditions are attached and expressly excludes any contrary
terms, conditions or provisions reflected in any Customer purchase
order or similar document. As and to the extent set forth in
Paragraph 21 of these Terms and Conditions, this Agreement
supersedes any prior agreement, oral or written, between the
parties with respect to the Licensed Products.
“Licensed Product(s)” means seat licenses for ACT Online Prep use
by Authorized Users, and any related manuals and materials.
“Authorized Users” means Customer-authorized students, teachers,
administrators and agents.
2. T e r m. This Agreement shall become effective on the date the
Customer signs the Agreement as presented (if Customer requires
modifications to these terms and conditions, any such agreement
must be set forth in writing, signed by ACT and Customer). All seat
licenses for the Licensed Products must be assigned within one
year of the start of the Term. To the extent Customer fails to assign
any of the purchased seat licenses within one year, such
unassigned seat licenses shall be null and void, and Customer shall
not be entitled to any refund. Subject to earlier termination as
permitted in this Agreement or this Agreement being supplanted by
a future agreement as is contemplated in Paragraph 21, this
Agreement will continue in effect for so long as Authorized Users
access or may access the Licensed Products made available under
this Agreement.
3. Fees. Customer shall pay to ACT the fees as indicated on the
Order Form or if not so indicated then in advance and as ACT may
reasonably require. All references in this Agreement to monetary
amounts and payments are in United States Dollars. Customer shall
be responsible for any tax liability imposed on it by any United
States or foreign national, federal, state, provincial, municipal, or
local government authority. ACT will withhold any amounts required
by applicable laws and regulations. All sums payable to ACT under
this Agreement shall be paid without any deduction, withholding,
counter-claim or set off. If Customer is compelled by law to make
any deduction or withholding from any such sums or if any payment
hereunder shall be or become subject to any tax, duty, levy or
impost of any nature (whether before or after the same has been
paid to ACT), Customer will immediately pay to ACT such additional
amount or amounts as will result in payment to and retention by
ACT of the full amount which would have been received and
retained but for such deduction or withholding or the imposition of
such tax, duty, levy or impost. ACT reserves the right to discontinue
delivery of the Licensed Product if payments are delinquent. Any
amount owing from Customer to ACT pursuant to the terms of this
Agreement and not paid when due shall accrue interest,
commencing on the due date until paid in full at the lesser of 18%
per year or the highest amount permitted by law. All costs
associated with collecting amounts due to ACT under this
Agreement, including attorney fees, shall be paid by Customer.
4. Grant and Scope of License. Subject to the terms and
conditions of this Agreement, ACT hereby grants to the Customer a
limited, non-exclusive, non-transferable, and non-sublicensable
right during the term of this Agreement to use the Licensed Products
for preparatory purposes only, including the purpose of preparing the
Customer’s Authorized Users for the ACT
®
test. The Licensed
Products, including any embedded quizzes, tests and reports are in
no way intended as a high- stakes assessment or as a replacement
for assessments such as the ACT test, or Customer’s own means of
evaluating and assessing Authorized Users. The Licensed Product
made available under this Agreement is licensed, not sold. Subject
to the terms and conditions of this Agreement, including, without
limitation, rights of termination under Paragraph 17 of these Terms
and Conditions, each Authorized User of Licensed Product shall
have access to the Licensed Product for one (1) year from the date
of such individual’s first accessing the Licensed Product.
The license granted hereunder may, in ACT’s sole discretion, allow
and provide for scoring of one or more Authorized User responses to
sample writing prompts. If that functionality is made available by ACT,
each Authorized User would receive at least one writing “unit”
enabling the scoring of one writing response. In its sole discretion,
ACT may provide for and allow the purchase of additional writing units
from ACT on terms, including, without limitation, fees and whether
such purchase can be made by
Customer or directly by Authorized Users, as are required by ACT.
5. Restrictions. Except as expressly permitted in this Agreement,
Customer may not (a) use the Licensed Product for any purpose
inconsistent with Paragraph 4 of these Terms, (b) assign, license, sell,
resell, distribute, loan, lease, or otherwise transfer any Licensed
Product or any related materials in whole or in part, (c) authorize or
allow a party other than Authorized Users to use any Licensed
Product, (d) copy, or allow anyone else to copy, in whole or in part,
any Licensed Product, or (e) modify, reverse engineer, decompile,
or disassemble any Licensed Product.
6. Customer’s Responsibilities. Customer shall (a) appoint an
administrator who will have authority to distribute access information,
and to set up user accounts up to the number of seat licenses
purchased, (b) assure proper machine configuration, a compatible
Internet browser, and Internet access, in each case, as applicable,
(c) ensure that only Authorized Users are given access information to
access the Licensed Product; (d) ensure that access to the Licensed
Product is terminated when Authorized Users cease to be affiliated
with the Customer; (e) use the Licensed Product in conformance with
any related manuals and materials as published and updated by
ACT from time to time, (f) control the use of the Licensed Products,
and assure that only Authorized Users are provided access, (g)
comply with all other terms and conditions of this Agreement,
including, but not limited to, paying, when due, all fees owed ACT,
and (h) assume full responsibility for the selection of the Licensed
Products to achieve any Customer purpose.
7. ACT Responsibilities. ACT will provide Customer with instructions
and provide access information for Customer to distribute to
Authorized Users. ACT will provide Customer- designated
administrators with telephone and email technical support. Such
support will not include assistance with configuring computer
hardware, installing or operating computer operating systems, Internet
browsers or any software application acquired from any third party.
8. Data. The parties acknowledge and agree that ACT may use and
disclose the data collected from the use of the Licensed Products as
set forth in ACT’s Privacy Policy, as amended from time to time.
