BY SUBMITTING THE NACAC COLLEGE CONNECTION ORDER FORM OR ACCESSING OR USING ANY PART OF THE LICENSED INFORMATION, CUSTOMER AGREES TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ORDER, ACCESS OR USE THE LICENSED INFORMATION.
Customer wishes to secure a limited license to use one or more defined lists of contact information for United States students who have registered for one or more of NACAC’s Virtual College Fairs (“Licensed Information”) and NACAC wishes to grant such license, which is related to NACAC’s mission of serving students as they make choices about pursuing post-secondary education.
Licensed Information is identified in requests entered into NACAC’s College Connections Order Form from time to time by Customer. All accepted Orders for Licensed Information are subject to the terms and conditions of such Orders, which are incorporated by reference into this Agreement, and the following terms and conditions:
- NACAC grants to Customer a nonexclusive, non-transferable, limited license (“License”) to use the Licensed Information specified in an Order for the duration specified in the Order, solely as permitted and for the purposes identified in the Order (“Licensed Use”). Customer will pay NACAC in accordance with the Order.
- NACAC retains ownership including copyrights and other intellectual property rights in and to the Licensed Information, and Customer obtains only such licensed rights as are explicitly granted in this Agreement and in the applicable Order. Customer acknowledges and agrees that the Licensed Information is proprietary to NACAC and that Customer will not contest the validity of NACAC’s rights in or ownership of the Licensed Information in any way.
- The Licensed Information is made available to Customer on a confidential basis solely for Customer’s internal use. The Licensed Information may not be disclosed or otherwise made available in whole or in part to any third party, in any manner, directly or indirectly (such as use of Licensed Information to generate any statistical or other information that is or will be provided to third parties), including as the basis for providing recommendations to others; provided, however, that Customer may provide the Licensed Information to a third-party processor engaged by Customer (such as a letter shop or service bureau) solely for processing the Licensed Information on Customer’s behalf for the Licensed Use, so long as Customer requires such processor to agree to maintain the confidentiality of the Licensed Information and not to use the Licensed Information except for Customer’s behalf, or permit others to access or use the Licensed Information. Customer is responsible for any misuse of the Licensed Information by any such third party processor. Customer agrees to reimburse NACAC for all costs which NACAC may incur in enjoining unauthorized third parties from using the Licensed Information in all cases where such unauthorized parties gained access to the Licensed Information from Customer or any of Customer’s vendors. Customer may not alter or modify the Licensed Information, or create any derivative works embodying the Licensed Information in whole or in part.
- Customer must maintain security procedures and practices sufficient to protect the Licensed Information from unauthorized access, destruction, use, modification or disclosure. Customer shall provide NACAC prompt written notice upon discovery or notification of any actual or potential unauthorized access to or use of the Licensed Information (a “Security Breach”) and immediately and at its own expense investigate and take all steps to identify, prevent and mitigate the effects of any Security Breach, and to comply with applicable state and federal laws applicable to the Security Breach. Customer shall promptly provide to NACAC a detailed description of the incident, the Licensed Information accessed, the identity of any affected students, and such other information as NACAC may request concerning the Security Breach, Customer shall conduct any recovery necessary to remediate the impact and bear any cost or loss NACAC may incur as a result of a Security Breach, including any cost associated with NACAC notifying any affected students.
- All physical copies of the Licensed Information shall either (a) be returned to NACAC within thirty (30) days of the expiration or earlier termination of this Agreement; or (b) be destroyed; and all electronic files containing the Licensed Information shall be deleted from Customer’s computer system and/or stored records. At NACAC’s request, Customer shall provide NACAC with a letter, signed by an officer of Customer, certifying that Customer has ceased using the Licensed Information and has either returned to NACAC or destroyed all physical copies of the Licensed Information, and has deleted all electronic copies from Customer’s computer system and/or stored records. In the event Customer retains Licensed Information beyond the expiration or termination of this Agreement, NACAC reserves the right, in addition to its other rights and remedies, to charge Customer, and Customer agrees to pay, a “holdover” license fee equal to the original license fee paid by Customer for each holdover period that is equal in duration to the original licensed period.
- In the event of a material breach of Section 3 or 4 of this Agreement, NACAC may immediately terminate this Agreement without prior notice. In the event of material breach of any other part of this Agreement by Customer or NACAC, the non-breaching party may terminate this Agreement if such breach is not cured within thirty (30) days of written notice of breach. Termination of this Agreement will result in a termination of all outstanding Orders and licenses granted to Customer.
- NACAC warrants that the Licensed Information will substantially conform to its description. NACAC will replace defective media provided you return the item to NACAC within twenty (20) days of the date of the applicable Order. If NACAC is unable to replace the defective media NACAC will refund the license fee. These are Customer’s exclusive remedies for any breach of this warranty.
- Customer will use the Licensed Information in compliance with all applicable local, state, federal laws, rules, regulations or requirements, and will not use Licensed Information as a factor in establishing an individual’s eligibility for (i) credit or insurance to be used primarily for personal, family, or household purposes, or (ii) employment.
NACAC represents that, to the best of its knowledge, the Licensed Information has been collected and compiled in accordance with all applicable laws, but NACAC does not guarantee that the Customer’s use of the Licensed Information will meet the requirements of any applicable federal or state law, rule or regulation including but not limited to wireless suppression lists, the CAN-SPAM Act, and “Do Not Call” lists, and Customer shall be responsible for ensuring that its use of the Licensed Information is compliant with all applicable laws.
Customer assumes liability for all content of its communications to students identified in the Licensed Information. Customer will indemnify and hold harmless NACAC from and against any loss, expense, or representative’s liability (including reasonable attorney’s fees and costs) resulting from Customer’s use of the Licensed Information, including, without limitation, violations of applicable law, false advertising claims, or any other claims whatsoever. Customer agrees that NACAC will have the right (but not the obligation) to monitor Customer’s use of the Licensed Information. NACAC may seed the Licensed Information with contact information for NACAC’s in order to monitor and detect improper use.
- While NACAC endeavors to keep its database current and to promote data accuracy, Customer acknowledges that the Licensed Information will contain a degree of error. NACAC does not make any warranty, either express or implied, as to the accuracy, completeness, correctness, merchantability or fitness for a particular purpose of any of the information contained within the Licensed Information and all warranties arising from course of dealing usage or trade practices. In no event will NACAC be liable for indirect, special, incidental or consequential damages (including loss of profits) incurred by Customer or any other party, even if NACAC has been advised of the possibility of such damages. In no event will NACAC be liable for any damages arising out of Customer’s use, non-use or interpretation of or inability to use the Licensed Information. If, notwithstanding the foregoing, liability can be imposed on NACAC, then Customer agrees that NACAC’s liability to Customer shall be limited to the amount paid by Customer for the license herein granted.
- Customer may identify NACAC as the source of contact information for the students contacted through Customer’s licensed use of the Licensed Information; provided, however, Customer may not claim or imply in any of its communications that NACAC endorses or approves of any of Customer’s products or services, or of any views expressed therein.
- This Agreement is governed by and construed in accordance with the laws of the State of Virginia, without regard to choice of law provisions. Any disputes arising out of this Agreement that cannot be resolved by the parties will be brought in state or federal court located in Arlington, Virginia.
- NACAC shall have the right at any time to add to or modify the terms of this Agreement, by delivering such amended terms to Customer by email at the address provided to NACAC by Customer. Orders submitted after the date of such amendment shall be subject to the terms of this Agreement as amended. The terms of this Agreement and of each Order constitutes the entire agreement between the parties with respect to such Order.