EducationDynamics Terms and Conditions
EFFECTIVE: November 18, 2015
GRADSCHOOLS.COM STANDARD TERMS AND CONDITIONS
EducationDynamics Holdings, LLC (the Company) desires to provide you (“Advertiser”) with the services described in the attached Quote, and Advertiser wishes to pay Company for the delivery of such services, in each case subject the Quote, which incorporates by reference Company’s standard terms and conditions as set forth herein (the “Standard Terms and Conditions”). Collectively, this Quote and the Standard Terms and Conditions constitute a binding Agreement between Advertiser and Company (the “Agreement”). Company may change the Standard Terms and Conditions at any time upon no less than thirty (30) days prior written or electron ic notice to Advertiser. In the event Advertiser chooses not to abide by the revised Agreement and revised Standard Terms and conditions, Advertiser may terminate this Agreement pursuant to the termination provisions set forth in the Standard Terms an d Conditions; otherwise the revised Agreement and revised Standard Terms and Conditions will be binding upon Advertiser.
1. Terms of Payment. The Company will invoice Advertiser via email for services provided. Advertiser agrees to pay Company in US dollars within thirty (30) days of the date of the invoice. Advertisers who pay via ACH, wire, or other electronic means agree to reimburse Company for any fees that may be incurred as a result of such payment method. Late payments bear interest at the ra te of
1.5% per month, or if less, the highest rate permitted under law, after thirty (30) days have passed from the invoice date. Company may suspend Advertisers listings on Company’s web properties if payment is not received within 7 days following late payment notification by Company. Additionally, Company is entitled to recover any reasonable sums expended in connection with enforcement of this Agreement including but not limited to the collection of amounts not paid when due, including all collection agency f ees and
attorneys’ fees. Payment of any invoice issued under this Agreement shall not be contingent in any manner upon (i) the number of students who subsequently apply for or are enrolled for any period of time in Advertiser’s educational programs , or (ii) the award of financial aid to any such student. If Advertiser is an agency, both agency and agency’s client shall be jointly and severally liable for payment under this Agreement.
2. Services. Subject to the terms of these Standard Terms and Conditions, Company will provide the services described in the Quote (“Services”) to Advertiser. In the event of a conflict between the terms of the Quote and the Standard Terms and Conditions, the Quote shall control with respect to the Services described therein.
(A) Click Qualification. When a prospective student is provided with an opportunity by Company to click-through to Advertiser’s designated website and/or landing page (a “click” or “ad click”), Company will track that user action to the web site and provide to Advertiser a monthly report showing total monthly clicks.
(B) Lead Qualification. When a prospective student is interested in information from Advertiser (through its affiliated and partner universities and colleges) (a “Lead”), Company will collect student contact information on behalf of Ad vertiser. Student information requests will be delivered to Advertiser in a manner agreed upon by the parties in writing. Advertiser may review Company’s lead collection form, including the validation used by Company to prevent invalid or incomplete data from being submitted. On ce approved by Advertiser, the data collected by the form shall be considered valid and complete. Subsequent changes to the lead validation rules (i) must be requested, in writing, by Advertiser at least 14 days prior to the effective date of the change, (ii) are subject to approval by Company and (iii) may impact Per-Lead Fee. Monthly Lead Count as determined by Company will be considered valid. At the request of Advertiser, Company will provide detailed lead data to support the monthly Lead Count. If the phone number and email address are invalid, the lead is invalid and may be returned to company and will be eligible for credit. Advertiser may utilize Insertion Orders to communicate changes to Lead Targets and cost-per-lead price changes, when mutually agreed upon by both parties. Notwithstanding, changes to the lead validation rules communicated via Advertisers insertion orders shall not be deemed valid notification of such changes, even if Insertion Order has been signed by both parties.
(C) Duplicate Leads. Prior to invoicing, Company will use a computerized duplication review process that compares each Lead to all Leads previously sent to Advertiser by Company within a prior thirty (30) day period, and mark any Leads with the same email address, or the same combination of first name, last name zip code, and education program of interest as duplicates. Company will not charge Advertiser for any such duplicate Leads on its monthly invoices. Leads that Advertiser has received from anot her party (other than Company) will not be considered Duplicate Leads. Notwithstanding this, upon receipt of sufficient documentation (including date, time and verifiable original source of Lead) that a Lead was previously submitted to Advertiser by a third party (a “Pr evious Lead”) Company will issue a credit to Advertiser for that Lead on the next monthly invoice, provided that Previous Leads must have been delivered to Advertiser within a time period no greater than 24 hours prior to Company delivered Lead, and must be submitted to Company for credit within ten days of Advertiser’s receipt of the invoice associated with Previous Lead. Leads where Company was the first to deliver an inquiry are not eligible for a credit, and Previous Leads delivered to Advertiser through affiliate netwo rks, co- registration, and incentive-based promotion are also not eligible for credit. Company reserves the right to verify Previous Leads’ validity with relevant original lead source.
(D) Lead Targets. If this Agreement indicates a “firm cap” related to monthly Lead Target, Company may deliver, and Advertiser agrees to pay for, an amount equal to the specified Lead Target, plus up to ten percent (10%) over that amount. Should overage exceed 10%, responsibility of those leads and their cost are with the publisher; unless Advertis er said leads at which point they are deemed billable by Company. Advertiser may increase Lead Targets at any time. Reductions to Lead Target a) may not occur
during the Initial Period (see Section 6 “Termination” below) b) may not reduce the prior Lead Target by more than 10% per month, c) will become effective during the next calendar month, and d) must be communicated to Company at least 14 days prior to the s tart of a new calendar month. Reductions of greater than 10% will automatically grant Company the right, at its sole discretion, to terminate this Agreement by providing 10 days advance notice to Advertiser.
3. Campaign Types. Company will provide the Services in accordance with the following campaign types. Based on the campaign type(s) selected in the Quote, the following terms will apply.
A. Click Only: When a prospective student is provided with an opportunity by Company to click-through to Advertiser’s designated website and/or landing page (a “Click”), Company will track that user action to the web site and provide to Advertiser a monthly report showing total monthly Clicks and total campaign to date Clicks.
B. Lead Only: When a prospective student is interested in information from Advertiser (through its affiliated and partner universities and colleges), Company will collect student contact information on behalf of Advertiser (a “Lead”). Leads will be delivered to Advertiser either through posting to a CRM or email delivery.
C. Hybrid: A campaign which includes Leads and Clicks.
D. Branding Only: Campaigns designed to feature the Advertiser’s logo on its program listing. There are no related Click or Lead services for Branding Only campaigns, and such campaigns will not receive traffic and/or full information on student inquiries.
E. Display: Company will run Advertiser’s designated placement in a position and time frame agreed upon in the Quote.
Payment for Display Services can be made on a flat-fee, or CPM (“cost per thousand”) basis. With respect to Display Services paid on a CPM basis, Advertiser will pay Company based on the number of impressions delivered and agreed per the CPM rate. Undelivered impressions can run until fulfilled with Advertiser’s approval.
F. Email Deployment: Company will send Advertiser’s campaign to a list of email addresses as set forth in the Quote.
All materials to be included in an Email campaign must be provided by Advertiser to Company at least two (2) weeks prior to deployment date.
G. E-Newsletters: Graduate-specific information emailed to full subscriber list, which includes 5 share-of-voice positions for Advertiser information
4. Delivery Rate Company will attempt (but does not guarantee) to deliver services at desired Delivery Rate designated on the Quote. If the agreed Service volume or budget is NOT achieved within the service period designated on the Quote, Advertiser has the option of extending the service period until the previously agreed volume or budget is achieved (running until fulfilled), or receive a credit towards future advertising. The foregoing will be Advertiser’s sole and exclusive remedy in the event of such under- delivery. Company at its discretion may deliver more services than contracted over the contract period.
i. ASAP: This method delivers leads and clicks as fast as site traffic allows. Once the clients volume/budget target has been exhausted, the listings will be classified as “Fraid” (see definition), until the agreement date has expired.
ii. Normalized: This method sets a cap on the number of leads delivered to a client in a given month; the Company will attempt to pace the campaign as evenly as possible based on the client’s specified budget or volume target. If at any time during the month, the amount of leads delivered exceeds the expected budget/volume delivered to date, the Company may move the campaign to a Fraid status (see definition) until the pace of the campaign budget/volume stabilizes, or the agreement date has expired.
iii. Soft Cap: This method has characteristics of both a normalized and an ASAP campaign. Leads are delivered on a normalized basis, but with greater flexibility to deliver additional volume; taking advantage of site traffic seasonality. Campaign may go into Fraid status as it attempts to reach budget/volume target.
5. Value Added Offerings: If set forth in the Quote, Company may offer Advertiser certain services other than those set forth above (“Value Added Offerings”). Value Added Offerings must be redeemed within the original contract period set forth in the Quote; any unredeemed Value Added Offerings will expire if unused during the original contract period set forth in the Quote.
6. Company's Representations and Warranties. Company represents and warrants as follows: (A) Company has the right to operate Company’s Web sites, newsletters, and other methods at the Company’s discretion, and Advertiser’s advertisements will appear as provided in this Agreement. Company, in its sole and complete discretion, may refuse the use of any advertisement t hat it deems inappropriate for any reason or no reason. Company, in its sole and complete discretion may remove or adjust promotion of listings in an attempt to limit the number of student inquires to stay within the Advertiser’s Monthly Click Target, or for any reason the
Company deems necessary. (B) Company is in compliance with all relevant privacy laws and regulations and that it shall provide notice for, and clearly disclose, its privacy policies and practices to visitors to its Web site(s), including its policies and prac tices with respect to the collection of information on consumers who may visit its Web site(s). (C) Company will be responsible for assuring Advertisements link through to the “Linking URL” specified for each program above and for sending inquiries to the email address indicated b y the Advertiser in the Company’s update system.
8. Termination. There is a minimum initial campaign period of sixty (60) days (“Initial Period”) and a one thousand dollar ($1,000) minimum fee under this Agreement. Advertiser may cancel this Agreement any time after the Initial Period upon thirty (30) days prior written notice to Company; provided, however, that if Advertiser terminates before reaching the $1,000 threshold, the balance shall be due and payable immediately upon such termination. Company may cancel any advertisement at any time, for any reason or for no reason, in which case Company will return to Advertiser the portion of payment made, if any, that relates to the period after cancellation and prior to the End Date. Except for such return payment, the Company will have no liability in connection with any such cancellation. Upon the termination or expiration of this Agreement, Company shall be entitled to immediate payment for all work performed including work completed but not yet invoiced.
9. Confidential Information. “Confidential Information” means any proprietary information or trade secrets of each party but does not include information which: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain thro ugh a source other than the receiving party; (b) was rightfully known to the receiving party as of the time of its disclosure; ( c) is independently developed by the receiving party; (d) is lawfully obtained by the receiving party from a third party that has the right to make such disclosure and who is not in breach of an agreement to keep such information confidential; or (e) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority. Each party agrees to secure, protect and maintain the confi dentiality of the Confidential Information of the other party using at least as great a degree of care as it uses to maintain the confidentiality of its own information of a similar nature or importance, but in no event less than reasonable care. Neither party shall use any Con fidential Information received from the other party except as may be necessary in its performance under this Agreement, and neither party shall disclose any such Confidential Information to any third party without the other party’s prior written consent, unless require d to do so by court order or other operation of law. The parties acknowledge that unauthorized use by a party of the other party’s Confidential Information will diminish the value of such information and that breach of this obligation may cause irreparable harm and ent itle the non- breaching party to seek injunctive relief to protect its interest herein, in addition to any other monetary or other remedies it may be entitled to hereunder.
10. Indemnification. Each party (the “Indemnifying Party”) agrees to hold harmless, indemnify and defend the other party (the “Indemnified Party”) from and against any losses, damages, costs and expenses (including reasonable attorneys' fees and costs) arising out of or relating to any claims: (i) that the Indemnifying Party breached or allegedly breached its confidentiality obligations hereunder; (ii) that the Indemnifying Party breached its warranties or representations as set forth herein; and (iii) with re spect to Advertiser as the Indemnifying Party, claims relating to Advertiser’s (or if Advertiser is Agency, then Agency’s Client’s) business, education programs, content or trademarks. The Indemnifying Party's obligations are conditioned upon the Indemnified Party: ( i) giving the Indemnifying Party prompt written notice of any claim, action, suit and proceeding for which the Indemnified Party is seeking indemnity; (ii) granting complete control of the defense and settlement to the indemnifying party; and (iii) providing, at the Indemnifying Party's expense, reasonable assistance in the defense or settlement thereof. In any event, the Indemnified Party shall have the right to
participate, at its own expense, in the defense or settlement of any claim, action, suit and preceding that is the subject of an indemnification obligation. If any settlement results in any ongoing liability to, or prejudices or detrimentally impacts either party, and such obligation, liability, prejudice or impact can reasonably be expected to be material, then such settlement shall require the party's written consent, which consent shall not be unreasonably be withheld.
11. DISCLAIMER OF WARRANTY. THE WARRANTIES CONTAINED HEREIN ARE THE ONLY WARRANTIES MADE BY THE PARTIES HEREUNDER. EACH PARTY MAKES NO OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT PROVIDE ANY WARRANTY THAT OPERATION OF ANY SERVICES HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE.
12. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY: (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FOR THE OPERATION OR USE OF CONTENT OR SERVICES, SUCH DAMAGES ARISING FROM OR RELATED TO LOSS OF OR DAMAGE TO DATA OR PROGRAMMING, LOSS OF REVENUE OR PROFITS OR OTHER BENEFITS, AND CLAIMS BY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES PAID BY ADVERTISER TO COMPANY FOR SERVICES HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE A CLAIM IS RAISED HEREUNDER. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.
13. Miscellaneous. No conditions other than those set forth in this Agreement or these Standard Terms and Conditions shall be binding on Company unless expressly agreed to in writing by the Company. No modifications to these Terms and Conditions shall be binding upon the Company without the express, written consent of the Company. In the event of any inconsistency between the provisions in any Quote or insertion order and the Standard Terms and Conditions, the Standard Terms and Conditions shall con trol, unless explicitly waived in such Quote or insertion order. These Standard Terms and Conditions, together with the Quote or insertion order, constitutes the Agreement between the parties. The Agreement (i) may be amended only by written Agreement executed by an authorized representative of each party (except as provided in Section 12 below); and (ii) constitutes the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, b etween the parties. The parties agree that Company shall have the right to reference and refer to its work for and relationship with Advertiser for marketing and promotional purposes. The parties agree that their relationship hereunder is that of independent contractors. N either party shall be deemed to be the agent, partner, joint venture, franchisor-franchisee, nor employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf other than as set forth in this Agreem ent or these Standard Terms and Conditions. This Agreement shall be governed by and construed in accordance with the law of the State of New Jersey without reference to any principles of conflicts of laws which might cause the application of the laws of a nother state. Any action instituted by either party arising out of this Agreement shall only be brought, tried and resolved in the applicable federal or state courts having jurisdiction in Hudson County, New Jersey, USA. EACH PARTY HEREBY CONSENTS TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE COURTS, STATE AND FEDERAL, HAVING JURISDICTION IN HUDSON COUNTY, NEW JERSEY, USA.
14. Reservation of Company Right to Revise the Terms of the Agreement and the Standard Terms and Conditions. Notwithstanding anything to the contrary herein including but not limited to Section 11 above, the Parties agree that subsequent to Initial Period, Company may revise this Agreement and these Standard Terms and Conditions upon thirty (30) days prior written or electronic notice to Advertiser. Such revisions may include but are not limited to changes to: (i) the Per Click Fee, (ii) the Terms of Payment, and (iii) Click Qualification. In the event Advertiser chooses not to abide by the revised Agreement and revised Standard Terms and Conditions, Advertiser may terminate this Agreement according to the termination provisions herein.
EFFECTIVE: November 18, 2015
Fraid: The program listing remains branded on the site, but the listings will appear without a visit site button and the client will only receive partial inquiries (mailing address only)., A campaign goes into Fraid status when a normalized or uncapped campaign is overpacing and/or when a contract volume/budget target is met before the official end date of the campaign
CPM: Cost Per Thousand Impressions Display advertising. Company will bill Advertiser based on number of impressions delivered in specified time period at the billable CPM Rate agreed upon on the Quote.
Quote: Document sent by the Company outlining the Campaign Type, Service Period, and Delivery Rate for a specific purchase by the Advertiser