Version: September 30, 2014
Unless governed by a separate written agreement with CPP, Inc. ("CPP"), by executing a Professional Services Agreement with CPP, or by otherwise ordering or participating in CPP’s professional services, you agree to be bound by these CPP Professional Services Terms & Conditions ("Terms")
1. Taxes. You shall be responsible for and shall pay all applicable federal, state, and local taxes, duties, fees, charges, surcharges, or other similar exactions (“Taxes”) imposed on or with respect to the services and/or the license or sale of products that are the subject of these Terms, whether such Taxes are imposed directly upon you or upon CPP, and include (but are not limited to): sales and use Taxes, goods and services Taxes, and value-added Taxes. For purposes of these Terms, Taxes do not include any taxes that are imposed on or measured by the net income of CPP.
1.1. Tax Exemption. If you are lawfully exempt from any such Taxes for any lawful reason, CPP will exempt you from such taxes on a going-forward basis once you deliver a duly-executed, signed and dated, valid exemption certificate to CPP’s tax department prior to the start date of your program and CPP’s tax department has approved that certificate. If for any reason a taxing jurisdiction determines that you are not exempt from such Taxes and assesses CPP for such Taxes, you agree to pay CPP such Taxes, plus any applicable interest or penalties. Please send such exemption certificates to:
CPP, Inc.—Attention: Finance/Tax Department
185 N Wolfe Rd.,
Sunnyvale, CA 94086
2. Intellectual Property. In the performance of the services and development of the deliverables, CPP may use CPP works or other products listed in the CPP Catalog. You acknowledge and agree that CPP is the sole and exclusive owner (or licensee of the owner) of the works and other products listed in the CPP Catalog, including the intellectual property rights associated with those works. Nothing contained in these Terms or the Professional Services Agreement you have executed with CPP is intended or shall be construed as granting you any proprietary or intellectual property right, or any right, title to, or interest in CPP’s intellectual property other than the limited rights to use such intellectual property for the duration of the professional services engagement you have ordered, and only then as limited by any terms that govern such use. You agree that you will not, in any manner, at any time, or in any proceeding of any kind in any forum whatsoever, challenge, deny, dispute, or contest: (i) CPP’s (or CPP’s licensor’s, as the case may be) ownership, right, title, and interest in and to CPP’s intellectual property, and/or CPP’s intellectual property rights; or (ii) the validity or registration of CPP’s intellectual property.
3. Confidentiality. You and CPP shall refrain from using any and all Confidential Information (as defined below) of the disclosing party for any purposes or activities other than those specifically authorized by these Terms or the Professional Services Agreement you have executed with CPP. CPP shall not, without your written permission, advertise, publish, or disclose the terms, details, or specifications of any order, the amount of revenue generated from any order, or the fact that it has furnished or contracted to furnish you with products or services. A receiving party shall use a commercially reasonable degree of care to prevent the unauthorized use, reproduction or disclosure of the Confidential Information, which such degree of care shall not be less than the degree of care that receiving party uses to protect its own Confidential Information of a similar nature. For clarification, this does not permit receiving party to allow third parties to whom it generally permits access to a receiving party’s Confidential Information, access to a disclosing party’s Confidential Information. Except as specifically provided herein, a receiving party shall hold Confidential Information in strict confidence, shall use and reproduce the Confidential Information only to the extent reasonably required to fulfill its obligations or rights under this Agreement and shall not disclose Confidential Information to any third party. It shall not be a breach of the obligations of the receiving party if the receiving party provides access to Confidential Information to, and authorizes the use and reproduction of the Confidential Information as is reasonably required to fulfill the Purpose by: (a) the receiving party’s employees and contractors (“Personnel”), provided that receiving party is vicariously liable for the failure of any Personnel to whom Confidential Information is disclosed to comply with receiving party’s obligations hereunder and further provided that the Personnel, who: (i) have a need to know the Confidential Information to fulfill the Purpose; and (ii) have entered into written confidentiality agreements with receiving party with terms that afford no less protection to the Confidential Information than the terms of this Agreement. A receiving party may also disclose Confidential Information if and only to the extent: (i) it is required to do so by law, provided that receiving party uses commercially reasonable efforts (if legally permitted) to give disclosing party sufficient notice to enable it to seek an order limiting or precluding such disclosure (at disclosing party’s expense); or (ii) disclosing party gives its prior written authorization to do so which is signed by either the CEO, CFO or General Counsel of the disclosing party. A receiving party agrees that except to the extent that the disclosing party is expressly precluded by law from prohibiting receiving party from doing so, receiving party shall not alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble, convert into human readable form, or reverse engineer all, or any part, of any materials to which it is provided access by disclosing party. A party may seek injunctive relief to enforce its rights under this Section.
3.1. Definition. “Confidential Information” means any information in whatever form or medium (and includes any copies of such information that a receiving party is authorized to make hereunder) that is:
3.1.1. proprietary or confidential to disclosing party or to its respective customers, suppliers, or other business partners including, without limitation, information that is embedded in, or related to, the disclosing party’s services or products or the development, testing, or commercial exploitation thereof;
3.1.2. is either specifically identified as confidential prior to or at the time of its disclosure or would generally be considered confidential in the parties’ respective industries;
3.1.3. confidential and either directly or indirectly disclosed to the receiving party, or to which the receiving party is otherwise provided access by the disclosing party or on behalf of the disclosing party; or
3.1.4. the fact or subject matter of the discussions between the parties that are taking place.
3.2. Exclusions. The following shall not be considered “Confidential Information:”
3.2.1. Information that a receiving party can establish was lawfully in the receiving party’s possession before receipt from the disclosing party and is without restriction as to use or disclosure;
3.2.2. Information that a receiving party can establish is or becomes a matter of public knowledge through no fault of the receiving party;
3.2.3. Information that a receiving party can establish was independently developed or discovered by the receiving party without reference to, or use of, any of the Confidential Information of the disclosing party; or
3.2.4. Information that a receiving party can establish is rightfully acquired by the receiving party from a third party whom the receiving party reasonably believes, after due inquiry, has the right to disclose such information and who provides the information without restriction as to use or disclosure.
4. Notices. Any notice to CPP or other communication required or permitted under these Terms or a Professional Services Agreement executed by you and CPP shall be in writing and to the address provided below. CPP may amend this address from time to time without notice to you.
CPP, Inc.—Attention: Finance/Tax Department
185 N Wolfe Rd.,
Sunnyvale, CA 94086
5. Relationship of Parties. The parties are independent contractors. You do not have any power, right, or authority to bind CPP or to assume or create any obligation or responsibility, express or implied, on behalf of CPP or in CPP’s name. Nothing in these Terms or the Professional Services Agreement you have executed with CPP shall be construed as creating the relationships of employee and employer, franchisee and franchisor, master and servant, or principal and agent between you and CPP.
6. LIMITATION OF LIABILITY. YOU UNDERSTAND AND AGREE THAT CPP’S LIABILITY TO YOU, REGARDLESS OF LEGAL THEORY, SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT IN ANY CIRCUMSTANCE EXCEED THE RETURN OF THE AMOUNT OF FEES PAID TO CPP UNDER YOUR PROFESSIONAL SERVICES AGREEMENT. UNDER NO CIRCUMSTANCE SHALL CPP BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY YOU OR ANY THIRD PARTY, INCLUDING (BUT NOT LIMITED TO) LOSS OF INFORMATION, PROFITS, BUSINESS OPPORTUNITIES OR GOODWILL, EVEN IF CPP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CPP CANNOT AND SHALL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR YOUR DECISIONS BASED ON INFORMATION PROVIDED IN THE PROFESSIONAL SERVICES OR DELIVERABLES NOR FOR ANY NEGATIVE IMPACT ON BUSINESS PROCESSES FROM RECOMMENDED ORGANIZATIONAL DEVELOPMENT STRATEGIES. CPP PROVIDES ANY SUCH RECOMMENDATIONS FOR INFORMATIONAL PURPOSES ONLY. THE USE OF ANY SUCH STRATEGIES IS DONE COMPLETELY AT YOUR OWN RISK.
7. Severability. If any provision of these Terms is declared invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed not to be part of these Terms and the parties agree to remain bound by all remaining provisions.
8. Entire Agreement. These Terms, in conjunction with the Professional Services Agreement you have executed with CPP and any other terms incorporated into that agreement by reference, supersede any arrangements, understandings, disclosures, promises, or agreements made or existing between the parties prior to their execution, and constitute the entire understanding between the parties with respect to this subject matter.
9. Modification. CPP may modify these Terms from time to time without notice to you, and you agree to be bound by such updated versions of these Terms.
10. Governing Law. These Terms, as well as the Professional Services Agreement you have executed with CPP, shall be governed by the laws of the state of California without regard to its conflicts of laws principles. You hereby irrevocably waive any objection on the grounds of venue, forum non-conveniens, or any similar grounds and irrevocably consent to service of process by mail or in any other manner permitted by applicable law and consent to the jurisdiction of the courts of the state of California as applicable. However, if you are a government entity or government sponsored educational institution that is prohibited by law from agreeing to this Section, then these Terms, as well as the Professional Services Agreement you have executed with CPP, shall be governed by the laws of the state in which you are located, without regard to its conflicts of laws principles.
11. Trademark Notice. Myers-Briggs Type Indicator, Myers-Briggs, MBTI, Step I, Step II, Step III, Introduction to Type, and the MBTIlogo are trademarks or registered trademarks of the Myers & Briggs Foundation, Inc. in the United States and other countries. California Psychological Inventory, CPI, CPI 260, FIRO, FIRO-B, FIRO Business, SkillsOne, Strong Interest Inventory, and the CPI 260, CPP, FIRO, FIRO-B, FIRO Business, Strong Interest Inventory, and TKI logos are trademarks or registered trademarks of CPP.