This Agreement (“Agreement”) is by and between NEW College Preparatory Academy, Inc., dba NEW College Preparatory Academy, Inc. (“NCPA”), a Texas corporation, its agents, successors and assigns; and you, your heirs, agents, successors and assigns (“You”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of NCPA services – defined as the services, programs, processes, curriculum, mentoring, coaching, counseling, training programs, and other educational and developmental products and services provided by NCPA and it’s affiliates (“Services”) and explains NCPA’s obligations to You and Your obligations to NCPA in relation to the Services You purchase. NCPA operates as an exclusive contractor for The NEW College Preparatory Academy, Inc., the National Homeschool Academy, the Gateway Preparatory School, Inc., and its assigns, for student enrollment, curriculum, mentoring, and related services; and is an exclusive license holder for intellectual property, copyrights, and distribution of proprietary material. Students may be enrolled in any of the listed institutions for credit and matriculation purposes.
This Agreement as well as any additional NCPA policies, procedures, and protocols, together with all modifications thereto, constitute the complete and exclusive agreement between You and NCPA concerning Your use of NCPA’s Services, and supersede and govern all prior proposals, agreements, or other communications. All NCPA policies and agreements specific to particular Service are incorporated herein and made part of this Agreement by reference. By purchasing NCPA’s Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which NCPA may establish from time to time, and any agreements that NCPA is currently bound by or will be bound by in the future. You may view the latest versions of these Agreements here.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with NCPA.
A. GENERAL TERMS APPLICABLE TO ALL SERVICES
1. TERM OF AGREEMENT; MODIFICATIONS.
You agree that NCPA may modify this Agreement and the Services from time to time as educational re-quirements, administrative situations, training methods, and college preparation strategies change. You agree to be bound by any changes NCPA may reasonably make to this Agreement when such changes are made. None of these changes pertain to changes in the sum certain (agreed upon price for Services) during the agreement period without Your consent.
a. If You have purchased Services from NCPA, the term of this Agreement shall continue in full force and effect for the service period of the Agreement You have use the Services and/or continue to use the ser-vices after any agreement period. In the event You terminate, withdraw, or discontinue Your usage, en-rollment, subscription, or any other service relationship with NCPA, You will be responsible to pay any unpaid amounts for the remainder of payments for the agreed upon service period. NCPA will be obligated to refund any amounts You have paid based on the refund policy.
b. You agree that NCPA shall not be bound by any representations made by third parties who You may use to purchase Services from NCPA, and that any statement of a general nature, which may be posted on NCPA’s Web site or contained in NCPA’s promotional materials, will not bind NCPA. NCPA may, at times, offer certain promotions with different charges and features.
c. You agree that You will be responsible for notifying NCPA should You desire to terminate or withdraw Your use of NCPA’s Services. Notification of Your intent to terminate or withdraw must be provided to NCPA according to the withdrawal policy.
2. ACCURATE INFORMATION.
You agree to maintain accurate information by providing updates to NCPA, as needed, while You are using NCPA’s Services. You agree You will notify NCPA within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by NCPA to determine the validity of information provided by You will constitute a material breach of this Agreement.
You agree that NCPA may use and rely on any such information provided by You for all purposes in con-nection with Your Services, subject to NCPA’s Privacy Policy. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if NCPA has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, NCPA has the absolute right, in its sole discretion, to terminate its Services and close Your account.
3. PRIVACY.
You can view NCPA’s Privacy Policy, which is incorporated herein by reference, as it is applicable to all Company Services. The Privacy Policy provides Your rights and Company’s re-sponsibilities with regard to Your personal information. Company will not use Your information in any way inconsistent with the purposes and limitations provided in the Privacy Policy.
4. ACCOUNT SECURITY.
You agree You are entirely responsible for maintaining the confidentiality of Your customer number/login, password, credit card number, and shopper PIN (collectively, the “Account Access Information”). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify NCPA immediately of any unauthorized use of Your account or any other breach of security. You agree NCPA will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by NCPA or another party due to someone else using Your Account Access Information. For security purposes, You will be required to change Your password and shopper PIN every six (6) months, for every NCPA account, subject to NCPA’s password and PIN guidelines. You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. NCPA specifically disclaims liability for any activity in Your account, whether authorized by You or not.
5. NO UNLAWFUL CONDUCT OR IMPROPER USE.
As a condition of Your use of NCPA’s Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to NCPA if, for any reason, NCPA takes corrective action with respect to Your im-proper or illegal use of its Services.
a. NCPA reserves the right at all times to disclose any information as NCPA deems necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in NCPA’s sole discretion.
b. If You have purchased Services, NCPA has no obligation to monitor Your use of the Services. NCPA reserves the right to review Your use of the Services and to suspend the Services if the services have been inactive for more than 120 days. Suspension of services does not relieve You of Your financial re-sponsibilities.
c. NCPA reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against NCPA or any of its affiliates, licensees, subscribers, or partners, without consideration for whether such legal action or threatened legal action is eventually de-termined to be with or without merit. NCPA may review every account for excessive utilization and to terminate or apply additional fees to those accounts that exceed reasonable use levels. This includes access to sequestered password protected and/or monitored access material. NCPA proprietary material is for the exclusive use of its clients and compromising secured access by allowing other parties access using Your access rights constitutes a breach of this agreement and subject to suspension of access and additional fees charged.
d. Except as set forth below, NCPA may also cancel Your use of the Services, after thirty (30) days, if You are using the Services, as determined by NCPA in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. Notwithstanding anything to the contrary herein, in the event NCPA cancels Your Services during the first thirty (30) days after You purchase the Services, You will receive a refund of any fees paid to NCPA in connection with the Services being canceled according to the refund policy. In the event NCPA deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to NCPA if, for any reason, NCPA takes corrective action with respect to Your improper or illegal use of its Services.
6. INTELLECTUAL PROPERTY.
You agree that NCPA and/or its licensors holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
a. You understand and agree that all content and materials contained in this Agreement, other policies, the NCPA web site, and any affiliated web sites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of the United States, as well as any other applicable proprietary rights and laws, and that NCPA or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of NCPA and/or its licensor. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
7. USE OF NALS SOFTWARE.
Software is defined as any digital or electronic products or services provided to You by NCPA. If You have licensed software from NCPA, NCPA grants You a limited, non-exclusive, nontransferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time per user.
a. You agree to not alter or modify the Software. You agree You are not authorized to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorized to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
b. NCPA and/or its licensors reserve all rights to the Software. The Software and any copies You are au-thorized to make are the intellectual property of NCPA and/or its licensors. The source code and its or-ganization are the exclusive property of NCPA and/or its licensors and the Software is protected by copy-right, including United States Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by NCPA and/or its licensors.
c. NCPA PROVIDES THIS SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MER-CHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. FEES AND PAYMENT.
If You signed up for a monthly payment plan, Your monthly billing date will be the first business day of the month after the month You purchase the Services and make the corresponding application, administrative, enrollment, subscription and/or initial payment, as applicable.
If You signed up for an annual payment plan, Your payment will be made at the time of purchase.
a. If for any reason NCPA is unable to charge Your Payment Method for the full amount owed NCPA for the Services provided (monthly or annually), or if NCPA is charged a penalty for any fee it previously charged to Your Payment Method, You agree that NCPA may pursue all available remedies in order to obtain payment. If You pay by credit card or bank debit card (“card”) and if for any reason NCPA is unable to charge Your card with the full amount of the Services provided, or if NCPA is charged back for any fee it previously charged to the card You provided, You agree that NCPA may pursue all available remedies in order to obtain payment. You agree that there is a fee charges for declined card payments and/or returned checks. These are included in the payment policy.
b. You agree that among the remedies NCPA may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any Services provided to You on Your behalf. NCPA reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal and Certegy, Inc., and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You. You may change Your Payment Method at any time by contacting NCPA via email. For NCPA Marketplace orders where payment has not been received or NCPA has received a chargeback for any portion of the transaction, You understand that in addition to any administrative fees NCPA may charge for the handling of the chargeback, the seller may also pursue all available lawful remedies to collect payment plus applicable fees, or obtain the lost merchandise. NCPA is not responsible for the actions of the sellers.
c. You agree that You are solely liable for arranging that Your Services are renewed, and that NCPA shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services without your permission unless you pre-authorize renewal.
d. While all transactions are processed in US dollars, NCPA may provide an estimated conversion price to currencies other than US dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. NCPA makes no representations or warranties that the estimated price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price and the price paid and any subsequent refund. In addition, you may be charged VAT, GST or other localized taxes, based on the country indicated in Your billing address section. Any amounts to be charged will appear during the checkout process.
9. REPRESENTATIONS AND WARRANTIES.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorized by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s trademark or trade name.
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL NCPA BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCI-DENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF NCPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some states may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such states, NCPA’s liability is limited to the full extent permitted by law. You agree that in no event shall NCPA’s or any of its affiliates, licensees, subscribers, or partners, the maximum aggregate liability exceed the total amount paid by You for the particular Service in dispute purchased from NCPA or any of its affiliates, licensees, subscribers, or partners.
11. DISCLAIMER OF WARRANTIES.
NCPA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IM-PLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NCPA MAKES NOT WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNIN-TERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. NCPA DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, AC-CURACY, RELIABILITY, OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THAT FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
12. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless NCPA and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with NCPA whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from NCPA or Your breach of this Agreement or incorporated agreements and policies.
a. You agree to indemnify and hold NCPA harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or willful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should NCPA be notified of a pending law suit, or receive notice of the filing of a law suit, NCPA may seek a written confirmation from You concerning Your obligation to indemnify NCPA. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that NCPA shall have the right to participate in the defense of any such claim through counsel of its own choosing. You agree to notify NCPA of any such claim promptly in writing and to allow NCPA to control the proceedings. You agree to cooperate fully with NCPA during such proceedings.
b. You agree to cooperate fully with NCPA during such proceedings. You agree You will not be entitled to a refund of any fees paid to NCPA if, for any reason, NCPA takes corrective action with respect to Your improper or illegal use of its services. You also agree that if NCPA is notified that a complaint has been filed with a governmental, administrative or judicial body, regarding the account of Yours with NCPA, that NCPA, in its sole discretion, may take whatever action NCPA deems necessary regarding further modification, assignment of and/or control of your account to comply with the actions or requirements of the governmental, administrative or judicial body until such time as the dispute is settled.
13. GOVERNING LAW, VENUE; WAIVER OF TRIAL BY JURY.
This agreement shall be deemed entered into in the State of Texas. You agree that the laws and judicial decisions of Collin County, Texas, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Collin County, Texas. For the adjudication of disputes involving federal issues, You agree to submit to jurisdiction and venue in the 5th U.S. District Court for the Eastern District of Texas.
You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree to comply with the Grievance Policy and Conflict Resolution policy.
14. NOTICES.
You agree that all notices (except for notices concerning breach of this Agreement) from NCPA to You may be posted on our Web site. Notices concerning breach will be sent either to the email or postal address You have on file with NCPA. In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to NCPA shall be made either by email, sent to the address provided on the NCPA Web site, or first class mail to NCPA’s address at:
NEW American Learning Solutions, Inc., 7533 Daffodil Way, Frisco, TX 75034.
15. HEADINGS.
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
16. ENTIRE AGREEMENT.
You agree that this Agreement including the policies and agreements it refers to (i.e. our Conflict Resolution Policy, etc.) constitute the complete and only Agreement between You and NCPA regarding the Services contemplated herein.
17. SEVERABILITY.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
18. WAIVER.
The failure of NCPA to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of NCPA thereafter to enforce such provisions.
19. FORCE MAJEURE.
NCPA will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service in-terruptions. You agree not to hold NCPA liable for any of the consequences of such interruptions.
20. SURVIVAL.
Sections 1, 6, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination or cancellation of this Agreement.
21. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.