Marketing Services Agreement Standard Terms
These Marketing Services Agreement Standard Terms apply to the Marketing Services Agreement (“Agreement”) that incorporates these terms between TPR Education, LLC d/b/a The Princeton Review or one of its affiliates, including Higher Edge Marketing Services, Inc. (“TPR”) and the entity ordering the products or services identified in the Agreement (“Customer”).
- Fees: TPR will invoice Customer for any fees in the Agreement upon execution of the Agreement, unless otherwise provided in the Agreement. Customer will pay TPR within 30 days of invoice receipt, unless otherwise provided in the Agreement. All fees are nonrefundable. All fees are net of taxes, except for taxes on TPR’s income. If Customer is exempt from taxes, Customer will provide its state tax exemption certificate.
- Content: Customer will provide required content for all products and services ordered (“Customer Content”) in advance of TPR’s deadlines. All Customer Content will be subject to TPR’s approval. Customer hereby grants to TPR a world-wide, nonexclusive license to display, distribute, reproduce, and use the Customer Content in connection with the products and services ordered and to display, distribute, reproduce, and use the trademarks, service marks or trade names of Customer (“Customer Marks”) as required to provide the products and services ordered.
- Representations: Customer represents and warrants to TPR that Customer owns the rights and interests in and to the Customer Content and Customer Marks necessary to grant the license above and that the Customer Content and Customer Marks do not infringe any copyright, privacy, trade secret or other right of any third party.
- Termination and Suspension : Either party may terminate the Agreement upon written notice to the other party if the other party commits a material breach of the Agreement that remains uncured for 30 days following written notice of the breach. TPR may suspend the delivery of the products and services ordered if any amounts due remain unpaid 30 days after the due date.
- LIMITATION OF LIABILITY: TPR WILL NOT BE LIABLE TO CUSTOMER OR TO ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, OF ANY CHARACTER, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN IF TPR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TPR’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT RECEIVED BY TPR FROM CUSTOMER UNDER THE AGREEMENT IN THE 12 MONTH PERIOD PRECEDING CUSTOMER’S CLAIM.
- Notices: Any notice required or permitted to be given under the Agreement will be given in writing in the English language, and deemed delivered if sent by: (i) personal delivery, with proof of delivery; (ii) expedited delivery service (e.g.; FedEx), with proof of delivery; or (iii) registered or certified U.S. mail, return receipt requested. Such notices or communications will be sent to Customer to the address provided in the Agreement and to TPR to the attention of General Counsel at 110 E. 42nd Street, 7th Floor, New York, NY 10017 or to such other address as either party will designate by notice to the other.
- Intellectual Property: Customer acknowledges and agrees that the Agreement in no way conveys any right, title or interest in any TPR content or publications, whether printed or electronic, including, without limitation, any statutory or common law copyright, privacy, trade secret or other intellectual property right patents embodied therein or associated therewith.
- Miscellaneous Provisions: The terms in any purchase order (other than the services, quantities, and prices) will not be binding on TPR. No provision of the Agreement will be deemed waived unless waived in writing. Sections 1, 5-8, and any other provisions which would reasonably be expected to survive the termination or expiration of the Agreement will so survive. Neither party will be responsible for any delay in performance or failure to perform due to causes beyond its reasonable control. No joint venture, partnership, employment or agency relationship exists between the parties as a result of the Agreement. The Agreement may not be assigned by either party without the prior written consent of the other party; provided that TPR may assign its rights and obligations under the Agreement to an affiliate or in connection with a merger, reorganization, consolidation, or sale of all or substantially all of its ownership interests or assets. Subject to the preceding sentence, the Agreement shall be binding upon the parties and their permitted successors and assigns. There are no intended third party beneficiaries of the Agreement. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Agreement will be governed by the laws of the laws of the state where Customer is located, without regard to its conflicts of law principles. If any provision of the Agreement is held invalid or unenforceable, the other provisions of the Agreement will remain in full force and effect and, so far as is reasonable and possible, effect will be given to the intent of the provision held invalid or unenforceable. The Agreement comprises the entire agreement between the parties, and supersedes all prior or contemporaneous oral or written negotiations, understandings, and agreements between the parties, concerning the subject matter of the Agreement.
