For the purposes of these Terms and Conditions of Use, the term “Customer” used throughout shall mean any school, University, agency, company or individual, whether public or private, purchasing a license to use Versant tests
Acceptance of Terms and Conditions of Use
The purchase of a license for the use of test instruments, related materials, and services covered by these Terms and Conditions of Use are based upon acceptance of the various terms and conditions and adherence to all policies described, which may be modified from time to time. Customers agree to be bound to all terms and conditions effective at the time of order when placing an order for materials, a Purchase Order, a Test Order Form, or by partial or total payment of Pearson’s invoice for any tests, materials, or services ordered. No modification or additions to these terms and conditions are binding upon Pearson unless previously agreed to in writing by an authorized representative of Pearson, including but not limited to any terms that may appear on customer purchase orders.
Prices and Payment
All prices and terms are subject to change without notice and are exclusive of taxes and shipping and handling charges. Customer agrees to accept the credit card billing. Payment is required before Test Identification Numbers (TINs) for the Customer's order are issued. All fees paid by Customer are non-refundable. Customer’s TINs shall be valid for one (1) year from the date of purchase. Each TIN can be used by the Customer once. Pearson reserves the right to cancel TINs if Customer's payments are not current, or if Customer does not comply with all applicable laws.
Taxes
If an account is not currently listed as “tax-exempt,” applicable state and local taxes will be added to the invoice. Customers wishing to be listed as “tax-exempt” for future purchases must send a copy of a tax exempt certificate to: orders@pearsonkt.com
Disclaimer of Warranties
ALL TESTS, TEST IDENTIFICATION NUMBERS (“TIN’S”), PRODUCTS, AND SERVICES PROVIDED BYPEARSON ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND PEARSON AND ITSLICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOTLIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULARPURPOSE AND NON-INFRINGEMENT. PEARSON DOES NOT WARRANT OR MAKE ANYREPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE TESTS, TIN’S OROTHER MATERIALS IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.CUSTOMER AGREES THAT THE USE OF THE TESTS, TIN’S, OR OTHER MATERIALS PROVIDED BY PEARSON IS AT CUSTOMER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVENBY PEARSON OR A PEARSON REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAYINCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THEEXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLYTO LICENSEE.
Confidentiality
Customer acknowledges and agrees the contents of Pearson’s tests may constitute trade secrets, which include confidential and proprietary material, information, and procedures. Customer will not sublicense, rent, lend, transfer, lease, resell or otherwise distribute materials, or authorize or allow disclosure of the contents of a test. Customer acknowledges and agrees that the use or disclosure of trade secrets in a manner in consistent with the provisions of this Agreement may cause Pearson irreparable damage for which remedies other than injunctive relief may be inadequate. Accordingly, Customer agrees that in any request by Pearson to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, Customer will not maintain that such remedy is not appropriate under the circumstances. In addition, Test score information provided by Pearson is for Customer use only and may not be distributed in any form to any person(s) not employed by the Customer, with the exception of the test-taker.
Copyright Notice
All tests and other related materials of Pearson are copyrighted. They are not to be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system without permission in writing from Pearson. The reproduction of any part of Pearson’s copyrighted tests and related materials in any way, whether the reproductions are sold or furnished free for use, is a violation of federal copyright law. No adaptations, translations, modifications, or special versions may be made without permission in writing from Pearson; customers are advised that such adaptations, translations, modifications, or special versions may affect the validity of the tests. Except as set forth herein, nothing in this Agreement shall be construed as granting Customer any right, title, or interest in or to Pearson’s intellectual property.
Limited License
Customer acknowledges and agrees that Customer is purchasing a nonexclusive, nontransferable, revocable, limited license to use the copyrighted material subject to these Terms and Conditions of Use. The purchase of a license for any copyrighted material in no way transfers copyrights or other ownership interests to Customer except for a limited license hereunder. Additionally, Customer shall not (and shall not permit others to)sublicense, rent, lend, transfer, lease, sell or provide to others the copyrighted material except as otherwise provided by these Terms and Conditions of Use.
If Customer elects to utilize video recording offered as a component of the service, Customer agrees to only utilize the video recording for evaluation of individuals where local laws and regulations allow such video and audio recording. Customer agrees that the collection of audio and video shall be subject to the Versant privacy policy located at https://www.pearson.com/english/versant/versantprivacynotice.html (“Versant Privacy Policy”) and that Customer agrees to comply with the Versant Privacy Policy in its use of any video and audio recordings provided through the service. Pearson has no obligation to verify the identity of the test-takers.
Test-Taker Accounts.
Where test-taker account creation is permitted by Customer, Customer authorizes Pearson to offer the ability for a test-taker to create an account directly with Pearson, which will allow the test-taker to view all Versant test results related to that test-taker, including those test results from Versant tests delivered for Customer. Customer recognizes that the test-taker shall have control over that account under agreement directly with Pearson, and Pearson will utilize that account and data associated with that test-taker to provide services directly to the test-taker as the test-taker chooses outside the scope of this Agreement.
Limitation of Liability
PEARSON SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, EXEMPLARY, INDIRECT,INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST BUSINESS, PROFITS, INCOME, OR GRANTS,OR EXPENSES INCURRED BY CUSTOMER AS A RESULT OF DELAYS OR THE LICENSE OF SUBSTITUTEMATERIALS, ARISING OUT OF THIS AGREEMENT AND/OR THE USE OR MISUSE OF, OR INABILITYOF CUSTOMER TO USE, ANY PRODUCTS OR MATERIALS SUPPLIED HEREUNDER, EVEN IF PEARSONHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. IN ANYEVENT, IN RESPECT OF ANY CLAIM, DEMAND OR ACTION ARISING OUT OF THIS AGREEMENT,CUSTOMER SHALL BE LIMITED TO RECEIVING ACTUAL AND DIRECT DAMAGES IN A MAXIMUMAGGREGATE AMOUNT EQUAL TO THE CHARGES PAID BY CUSTOMER TO PEARSON HEREUNDER FORTHE APPLICABLE PRODUCTS OR MATERIALS ON WHICH THE CLAIM IS BASED.
Indemnity
Customer agrees to defend, indemnify, and hold Pearson and its directors, officers, employees, and agents harmless from and against any claims, demands, losses, damages, causes of actions, and judgments arising out of Customer’s use of the Tests, TINs, its use of personal information and video and audio recordings collected for Customer through the service, or its breach of this Agreement.
Force Majeure
Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, act of God, war, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence.
Notices
Any required notices shall be given in writing to the Customer at the most recent contact information provided by Customer to Pearson. Customers agree that Pearson may send notices by electronic mail as an alternative to conventional mail.
Publicity
Customer grants Pearson permission to list Customer’s name on public customer lists and use Customer’s name and logo in marketing materials or press releases that name Pearson customers.
Governing Law and Venue
These Terms and Conditions of Use, each transaction entered into in connection with this Terms and Conditions of Use, and all matters arising from or related to these Terms and Conditions of Use (including validity and interpretation) are governed by, construed, and enforced in accordance with the laws of the State of Minnesota, without reference to any conflict of law principles.
Limitation of Claims
Customer must bring any action on any claim against Pearson within one (1) year following the date the claim first accrued, or it shall be deemed waived.
Export Law Assurance
If the product(s) ordered from Pearson have been rightfully obtained within the United States, Customer agrees and certifies that neither the products nor any technical data received by the Customer from Pearson will be exported outside of the United States, except as authorized by the laws and regulations of the United States
Entire Agreement
This Agreement contains the entire understanding and agreement between the parties related to its subjectmatter. This Agreement supersedes any and all other agreements and understandings, whether oral or written,related to its subject matter, and may only be amended by a written document signed by both the Customerand Pearson. This Agreement will be binding upon the parties and their respective successors and assigns.
