Version: October 2014
By purchasing CPP’s Electronic Products (as defined below), you agree to be bound by these Standard Terms & Conditions for License of CPP Electronic Products (“Terms”) as of the date you make such purchase.
1. Definitions. The terms below are defined as follows:
1.1. “Certified Practitioner” means an individual who has successfully completed a relevant certification program for a given Restricted Instrument.
1.2. “Electronic Products” means electronic versions of CPP products that are offered via CPP’s various websites, catalogs, and services, including (but not limited to) products that are offered on the SkillsOne®, Elevate®, or MBTI®, Complete websites, or CPP’s online enduser portals.
1.3. “Restricted Instrument” means assessments that may only be administered by certain Certified Practitioners or educationally eligible individuals (if applicable), and includes (without limitation) the MBTI®, CPI 260®, Strong Interest Inventory®, and FIRO®; family of instruments, as well as any future instrument that CPP may, in its sole discretion, deem to be a Restricted Instrument.
3. Conditions of Grant of License. The license granted to you under these Terms is conditioned upon the following:
You may not sell, rent, lease, license, redistribute for profit, or otherwise commercially exploit CPP’s Electronic Products.
You may not alter or modify any Electronic Product. You may not prepare works that are derivative of any Electronic Product. In the event that you do prepare such a derivative work in violation of these Terms, you assign all copyright and other intellectual property rights that arise in those unauthorized works to CPP in perpetuity and you waive any moral right to such works. The limited license granted in Section 2 of these Terms shall be limited to the following purposes:
You may not use Electronic Products in any manner that is considered obscene, immoral, infringing, defamatory, libelous, or misleading, or otherwise to the detriment of CPP. You may not modify or remove any copyright or trademark notices that appear on the Electronic Products. You may not superimpose your own trademarks on Electronic Products, or take any other action that would create a likelihood of confusion as to the source of the Electronic Products.
Use of some Electronic Products is restricted to Certified Practitioners. Should you intend to make use of such restricted Electronic Products, you agree that only your appropriately Certified Practitioner employees (or certain educationally eligible employees) may deliver or present those Electronic Products. You agree to follow CPP’s Trademark Guidelines (a current version of which is available at https://www.cpp.com/Pdfs/Trademark_Guidelines.pdf, and which may be amended from time to time by CPP) at all times. You agree not to use any CPP trademark as part of any domain name or in any manner that may create a likelihood of confusion.
4. Intellectual Property. CPP reserves all rights in the Electronic Products and CPP’s other intellectual property. Other than the limited grant of license contemplated by these Terms, no transfer of rights or other license is intended by this Agreement. You agree not to challenge CPP’s ownership of the Electronic Products and you agree not to take any action inconsistent with or detrimental to CPP’s proprietary rights in the Licensed Content.
4.1. Non-Infringement. To CPP’s knowledge, the Electronic Products do not infringe upon or violate any third party’s intellectual property rights.
5. Fees & Payment Terms.
5.1. Fees. The limited license granted by these Terms is conditioned upon your payment of the specified fee for each such Electronic Product. Fees are specified in CPP’s various websites, catalogs, and services. You agree to pay all such fees prior to making use of any Electronic Product.
5.2. Taxes. You shall be responsible for and shall pay all applicable federal, state and local taxes, duties, fees, charges, surcharges or other similar exactions (hereinafter called “taxes”) imposed on or with respect to the services and/or the license or sale of products that are the subject of these Terms whether such taxes are imposed directly upon you or upon CPP, and include, but are not limited to, sales and use taxes, goods and services taxes and value added taxes. For purposes of this Section, taxes do not include any taxes that are imposed on or measured by the net income of CPP. If you are exempt from any such taxes for any reason, CPP will exempt you from such taxes on a going-forward basis once you deliver a duly executed, signed and dated valid exemption certificate to CPP’s tax department and CPP’s tax department has approved such exemption certificate. It is your responsibility to keep such exemption certificate current; once expired, CPP will resume charging taxes. Please send such exemption certificates directly to:
ATTN: Finance – Tax Department 185 N Wolfe Rd.,
Sunnyvale, CA 94086
If for any reason a taxing jurisdiction determines that you are not exempt from such taxes and assesses CPP for such taxes, you agree to pay CPP such taxes, plus any applicable interest or penalties.
5.3. Returns & Exchanges. All sales or licenses of electronic documents, videos, discs, and electronic presentations are considered final and are not eligible for return. CPP reserves the right to discontinue scoring any assessment or reports, including prepaid answer sheets, and any online assessments or reports or outofprint product without notice to you.
6.1. Termination by CPP. If you materially breach this Agreement and do not cure such breach within thirty (30) days of being notified by CPP, then CPP may revoke the license granted to you under these Terms and terminate these Terms. You will not be given a refund or credit in the event that CPP terminates these Terms for your uncured breach.
6.2. Termination by You. You may terminate these Terms (and thereby revoke your license) for any reason by providing CPP with thirty (30) days’ notice. You will not be given a refund or credit in the event that you terminate these Terms.
6.3. Effects of Termination or Expiration. Should these Terms terminate or expire for any reason,then:
6.3.1. Halt Use of Electronic Products. You shall immediately cease and desist from making any use of the Electronic Products.
6.3.2. Destruction & Certification. You shall destroy any remaining physical manifestations of the Electronic Products that remain in your possession or control, and shall provide certification of such destruction to CPP upon CPP’s written request.
7.1. Electronic Signatures. These Terms may be executed by electronic signatures.
7.2. Counterparts. These Terms may be executed in two or more counterparts, each of which is an original, and all of which constitute only one agreement between the parties.
7.3. Severability. If any provision of these Terms is illegal or unenforceable, that provision is severed from these Terms and the other provisions remain in full force.
7.4. Governing Law. These Terms are to be governed by and construed in accordance with the laws of California, without regard to its conflict of laws principles. However, if you are a governmental agency or public educational institution that is prohibited by law from agreeing to this choice of governing law, then these Terms shall be governed and construed in accordance with the laws of the state of relevant jurisdiction for that governmental agency or public educational institution.
7.5. Venue. All court actions arising out of or relating to these Terms will be heard and determined in the state or federal courts of Santa Clara County, California, and each party submits and agrees to the exclusive jurisdiction and venue of such courts for such actions. However, if you are an educational institution that cannot agree to this choice of venue, then all court actions arising out of or relating to these Terms will be heard and determined in the state or federal courts of the state of relevant jurisdiction for that educational institution.
7.6. Entire Agreement. These Terms contains the entire agreement between the parties hereto relating to the Electronic Products. All prior or contemporaneous written or oral agreements, representations, warranties, statements, or understandings by and between the parties, whether express or implied, with respect to the subject matter contained herein, are superseded by these terms.
7.7. Anti-Delegation. Any license granted under these Terms is personal to you. You may not delegate any of your duties, or sell, transfer, assign, sublicense, or otherwise dispose of the license granted by these Terms without CPP’s prior consent, whether by operation of law, merger, or by the sale or transfer of all or substantially all of its assets or voting securities in any other manner. Any purported assignment or transfer of the license granted under these Terms made without CPP’s prior written consent shall be void.
7.8. LIMITATION OF LIABILITY. IN NO EVENT SHALL CPP’S LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY LICENSEE UNDER THESE TERMS. UNDER NO CIRCUMSTANCES SHALL CPP BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY LICENSEE OR ANY THIRD PARTY, INCLUDING (BUT NOT LIMITED TO) LOSS OF INFORMATION, PROFITS, BUSINESS OPPORTUNITIES OR GOODWILL, EVEN IF CPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
7.9. NO EXPRESS OR IMPLIED WARRANTY. THE LICENSED CONTENT ARE PROVIDED “ASIS.” CPP MAKES NO REPRESENTATION OR WARRANTY REGARDING THE LICENSED CONTENT OTHER THAN THOSE SPECIFIED IN THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, CPP DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY.
7.10. Indemnification by CPP. If a thirdparty makes an intellectual property claim against you, CPP will defend, indemnify, and hold you harmless against the intellectual property claim and pay all costs, damages, and expenses (including reasonable legal fees) finally awarded against you by a court of competent jurisdiction or agreed to in a written settlement agreement signed by CPP arising out of such intellectual property claim, provided that (i) you promptly notifies CPP in writing after your receipt of notification of a potential claim; (ii) CPP may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) you provide CPP, at CPP’s request and expense, with the assistance, information, and authority necessary to perform CPP’s obligations under this Section. If you have services provided by other service providers that are subject to the intellectual property claim, then CPP’s obligation will be to pay a pro rata portion of such damages, costs, liabilities, or expenses, based on the percentage of your total end users for whom CPP has provided the claimed infringing services. CPP shall not be bound or materially prejudiced without its prior written consent. If, due to an intellectual property claim or the threat of an intellectual property claim, (i) the Electronic Products provided by CPP are held by a court of competent jurisdiction, on in CPP’s reasonable judgment may be held to infringe by such a court, or (ii) you receive a valid court order enjoining Licensee from using the Electronic Products, or in CPP’s reasonable judgment you may receive such an order, CPP shall in its reasonable judgment and at its expense, (a) replace or modify the Electronic Product to be non-infringing without materially reducing the functionality of the Electronic Product; (b) obtain for you a license to continue using the Electronic Product; or (c) if non-infringing Electronic Product or a license to use cannot be obtained on a commercially reasonable basis, either party may terminate the use of the infringing Electronic Product without any liability.
7.11. No Waiver. No failure or delay by either party in exercising any right under these Terms shall constitute a waiver of that right. Other than as expressly state herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
7.12. Survival. The following provisions shall survive any termination or expiration of these Terms:
7.12.1. Section 4, Intellectual Property;
7.12.2. Section 5, Fees & Payment Terms;
7.12.3. Section 6.3, Effects of Termination or Expiration; and
7.12.4. Section 7, General Provisions.