Enrollment Planning Service Agreement
1. This Agreement contains the exclusive terms and conditions under which your institution (“You”) may use the Enrollment Planning Service™ (“EPS”). By using EPS and its associated data, You accept the terms of this Agreement.
2. Data License: Pursuant to the terms and conditions contained in this Agreement, the College Board hereby grants to You a non-exclusive, limited, non-transferable (except as indicated otherwise in Section 5), revocable, license to use the Data (as such term is defined in Section 3) solely for the Permitted Use, as such term is defined in Section 8 of this Agreement.
3. Service Overview: EPS provides a web application designed to perform geodemographic analysis and web accessible data reporting from multiple College Board data sources, including SAT, PSAT and AP registration data (“Data”), in addition to institution specific reports on student markets, an institution’s position in those markets, and an institution’s competition. EPS is available in two levels of service – Executive Summary (College Board Reports and Executive Summary) and Interactive (College Board Reports, Executive Summary, Basic Reports, and Interactive Reports). In addition, the Interactive level service provides for the importation of institutional data for use as a data source or for Descriptor PLUS tagging. Client may have up to sixty-five (65) Authorized Users as defined in Section 5.
4. User Eligibility: You represent and warrant that You meet, and at all times during the term of this Agreement will meet, the eligibility criteria, which are located at http://www.collegeboard.com/eps/help/introtoeps/usereligibility/index.html. The College Board may conduct a review of Your eligibility for EPS at any time. You agree to reasonably cooperate with the College Board with regard to such reviews, including promptly providing to the College Board, upon its request, any related documentation. Notwithstanding the foregoing, You shall immediately inform the College Board should You undergo a change relating to the basis upon which you were deemed eligible for EPS, or if You: (i) lose Your accreditation; (ii) become the subject of a regulatory investigation; or (iii) transition from not-for-profit to for-profit status.
5. Authorized Users shall be defined as, and limited to: (i) employees of your organization whom You have authorized in writing to receive and use the Data in accordance with this Agreement (“Employee User”) and (ii) Third Parties for whom You have consented in writing to access the Data (“Authorized Third Parties”). You must establish a separate EPS user account for each Employee User in accordance with College Board procedures, and for authorized employees of those Authorized Third Parties requiring access to the EPS interface. You are responsible for ensuring that Authorized Users use the Data in accordance with this Agreement, and You will be liable to the College Board for any misuse of the Data by an Authorized User.
6. Data Ownership: The Data is, and at all times will remain, the sole property of the College Board. The College Board retains all right, title and interest in and to the Data, and all copies thereof (including, without limitation, all copyrights, trade secrets, trademarks, patents and other similar proprietary rights therein).
7. Client Data: As part of Your using EPS, You will enter queries into the EPS database and import institutional student data (“Institutional Data”). You hereby grant the College Board a non-exclusive, limited license to use Institutional Data in connection with furnishing EPS to You.
8. Use of the Data: You (and Authorized Users) shall use the Data solely for the purpose of analyzing the student marketplace and your institution’s position within such marketplace. (“Permitted Use”). You agree not to copy, publish, release, use, lend, sell, rent or otherwise make available this information to any other institution, organization, or individual without the written consent of the College Board. It is understood that any inappropriate or secondary use of College Board data is prohibited, and violations of this agreement will lead to cancellation of future service and You will be subject to legal action to the fullest extent of the law. This agreement permits Your organization to use the data and reports provided, consistent with guidelines set forth in agreements between students, high schools, colleges and universities, and the College Board. Generally accepted ethical standards for student recruitment will be adhered to.
Additionally, You agree that you will not use the Data to: (i) make or influence individual admissions decisions, and (ii) discriminate against potential applicants on the basis of race, color, creed, national origin, age, sex, and socioeconomic background. Nothing in this agreement, however, shall prevent Your organization from using data and reports provided by EPS in connection with a valid affirmative action program that takes such characteristics into account in furtherance of the permissible goal of attaining a diverse student body.
Executing this Agreement signifies that You have read and understood and agreed to abide by the foregoing, and have ensured that each Authorized User has also read, understood and agreed to so abide.
Client shall comply with College Board’s guidelines on the Uses of College Board Test Scores & Related Data and Guidelines for the Release of Data found at http://www.collegeboard.com/research/home.
9. CLIENT WARRANTY: You represent and warrant that You have the right to disclose Institutional Data and/or all information transmitted by You to College Board and, where third party information is being provided by You to the College Board, You have obtained all licenses and approvals as may be required for the College Board to use such information in the manner and to the full extent contemplated under this Agreement.
10. Term: This Agreement will become effective on the date of purchase (“Effective Date”) and shall terminate one year later (the “Term”). The Term will automatically be extended for another twelve (12) months and You will be invoiced for another Term, unless prior to the termination date of such Term, You notify the College Board in writing of your desire not to extend use.
11. Termination: The College Board may terminate this Agreement upon written notice to You in the event that: (i) You breach the terms of this Agreement, or (ii) the College Board determines, in its sole discretion, that You are no longer eligible to use EPS; or (iii) the College Board has a reasonable basis to question your or an Authorized Third Party’s use of the Data. Additionally, if You initiate or participate in any legal proceeding against the College Board, the College Board, in its sole discretion, may suspend or terminate all rights, including the right to use the Data during the course of such legal proceedings.
12. Hosting: You will access EPS via a College Board-hosted website. You understand and agree that there is a risk of interruption to websites. Additionally, the website may be suspended from time to time for administrative purposes as necessary, including but not limited to, system maintenance. The College Board may change the technical functionality of the website at any time to the extent necessary to address technical and other business needs of the College Board.
13. Additional User Requirements: In addition to the terms stated herein, You shall comply with the requirements and policies set forth at http://www.collegeboard.com/eps/help/introtoeps/index.html. If there is a conflict between the terms of such policies and the terms of this Agreement, then the terms of this Agreement shall prevail.
14. Authority: Each party hereby represents and warrants to the other that it has the requisite authority to enter into and be bound by this Agreement, that entry into this Agreement has been duly authorized and executed by all necessary action, and that entry into this Agreement does not violate any laws, rules or regulations which govern it or any agreements by which it is bound.
15. GENERAL DISCLAIMER: THE COLLEGE BOARD AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. THE COLLEGE BOARD DOES NOT REPRESENT OR WARRANT TO YOU THAT YOUR USE OF THE DATA WILL MEET YOUR REQUIREMENTS.
16. LIMITATION OF LIABILITY; INDEMNIFICATION: TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COLLEGE BOARD AND ITS AFFILIATES HAVE ANY LIABILITY TO YOU IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTIAL, SPECIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM OR THEORY OF LIABILITY (INCLUDING CLAIMS UNDER CONTRACT, TORT, OR STRICT LIABILITY), NOR LIABILITY FOR LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY OR BUSINESS INTERRUPTION, REGARDLESS OF WHETHER THE COLLEGE BOARD KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
In no event will the maximum liability against the College Board exceed the amount of fees paid by You to the College Board under this Agreement.
To the extent permitted by law, You will indemnify, hold harmless and defend the College Board from and against all liabilities, demands, claims, and fines, including reasonable attorneys’ fees and other costs and expenses of defense and settlement, which the College Board may incur as a result of damages claimed by third parties in connection with this Agreement (collectively, “Damages”) provided, however, that You will not be obligated to indemnify the College Board to the extent Damages are caused directly by the gross negligence or willful misconduct of the College Board.
17. PO Terms: This Agreement supersedes any conflicting terms and conditions contained in a purchase order that might be submitted by your institution to the College Board for the Data.
18. Force Majeure: Neither party shall be considered in default in the performance of its obligations under the Agreement to the extent that performance of its obligations is prevented or delayed by any cause beyond its reasonable control, including without limitation, acts of God; strikes; acts of public enemies; wars; riots; civil disturbances; epidemics; hurricanes; tornadoes; and any other similar acts, events, or omissions.
19. Required Authorization: You represent and warrant that you have obtained any consent that you require from your management, your board of directors and any third parties to the extent consent is necessary to authorize you to enter into this Agreement.
20. Complete Agreement; Governing Law: This Agreement constitutes the entire understanding between the College Board and You with respect to the subject matter hereof and supersedes any prior agreements, understandings, negotiations or offers between the College Board and You. Any modification or amendment of the terms of this Agreement shall not be binding upon either party unless such modification or amendment is in writing signed by both parties. This Agreement shall be construed under the laws of the State of New York. In the event that any provision of this Agreement is deemed invalid or unenforceable, the other provisions of this Agreement shall continue in full force and effect.