Terms and Conditions of Sale and Use of Pearson Products
Effective: February 23, 2016
1. Acceptance Of Terms & Conditions
Sales of Pearson Products and Other Publisher's Products (together referred to as "Products") by Pearson's Canada Assessment, Inc. (“Pearson”) and the purchase and use of Products by Customer are conditioned upon acceptance of these Terms & Conditions. Customer agrees to these Terms & Conditions by submission of User Acceptance Form, order(s) for tests or scoring services, or by paying part or all of a Pearson Invoice. These Terms & Conditions constitute the entire agreement between Pearson and the Customer and supersede any purchase order terms associated with a Purchase Order (P.O.) number on any order. If any provision of the Terms & Conditions are found to be illegal or unenforceable, the remaining provisions will be enforced. These Terms & Conditions may not be waived or modified except by prior written agreement signed by a Pearson Vice President. Canadian law will govern these Terms & Conditions.
Pearson warrants that the Pearson Products published directly or under license by Pearson in their standard form, will not infringe any valid, third-party patents or copyrights existing at the time of publication. This warranty does not extend to any Other Publisher's Products or to any infringement arising from the use of the Pearson Products in combination with any systems, software, or equipment, supplied by a third party. If Customer promptly notifies Pearson of an infringement claim concerning a Pearson Product and accords Pearson the right, at its sole option and expense, to handle the defense of the infringement claim, Pearson will indemnify and hold the Customer harmless from/against such infringement claim related solely to that Pearson Product. Pearson may, in its sole discretion, furnish the Customer with a non-infringing replacement product within sixty (60) days or repurchase the remaining unconsumed Pearson Product. EXCEPT AS STATED HEREIN, PEARSON MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS. ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
3. Risk of Loss and Returns
Shipping within Canada is FOB Destination with freight from Pearson warehouse charged to the Customer. Returns are to be made in accordance with the Returns Policy.
4. Limitation of Liability and Limitation on Claims
IN NO EVENT WILL PEARSON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, PURCHASE OR USE OF PEARSON PRODUCTS OR SERVICES. NOT WITHSTANDING ANY OTHER PROVISION OR AGREEMENT BETWEEN
THE CUSTOMER AND PEARSON, PEARSON'S TOTAL LIABILITY TO ANY PARTY, ARISING OUT OF THIS AGREEMENT, PURCHASE, OR USE OF PRODUCTS, EXCEPT AS IT RELATES TO PEARSON'S WILLFUL MISCONDUCT, WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS OR SERVICES.
5. Use of Product
Customer agrees that it is the Customer's responsibility to use any Products in accordance with Pearson's Qualification Policies & User Acceptance Form and applicable professional guidelines. Customer understands and agrees that the Products are intended to be used as tools in the overall assessment process, and are not designed to be used alone or to replace the Customer's professional judgment. Pearson is not responsible for any claims or damages incurred in connection with the Customer's or any third party's use or misuse of the Products. Unless otherwise indicated, Products are not sold for self-guidance, nor to any individual or organization engaged in testing and counseling by any remote method. Users must agree to guard against the improper use of the Products in order to retain the right to purchase those Products. To protect their security and value, Products may not be resold, re-licensed, transferred or otherwise further distributed without prior written permission from Pearson. Reselling on any online site or by any other method is strictly prohibited and will disqualify the reseller from future purchases of Pearson Products or Services. The Customer's purchase of Pearson Products does not grant the Customer a right to reproduce additional copies of materials or content or enter any content into a computer medium, such as non-Pearson scoring system or software. However, if the Customer licenses and uses Pearson reporting software, the Customer may excerpt portions of the output reports, limited to the minimum text necessary to accurately describe the qualified user's significant core conclusions, for incorporation into a written evaluation of the individual, in accordance with the Customer's profession's citation standards, if any.
No adaptations, translations, modifications, or special versions may be made without prior permission in writing from Pearson (see Section 9). Violation of these Terms & Conditions may result in the revocation of a Customer's right to purchase as a qualified Customer.
6. Copyright and Trade Secrets
Pearson Products are protected by various intellectual property laws, including trade secrets, copyright and trademark. Printing or reproducing copyright-protected materials or content, whether the reproductions are sold or furnished free for use, including reproduction of test items, scales, scoring algorithms, scored directions, or other content, is strictly prohibited by law and by these Terms & Conditions. Pearson software outputs, including but not limited to reports, are protected as trade secrets. Customer acknowledges and agrees that the use or disclosure of Pearson trade secrets or confidential information may cause Pearson irreparable harm for which remedies other than injunctive relief may be inadequate. If Customer is required to disclose secure test materials pursuant to a subpoena or court order, please refer to Pearson's Legal Policies.
7. Test Security
Customer agrees to comply with the following basic principles of minimum test security:
- Test takers must not be coached using the test or receive test answers before beginning the test.
- Test materials (text or graphic image) may not be reproduced in any manner electronically or otherwise without the prior written permission of Pearson.
- Access to test materials must be limited to qualified persons with a responsible, professional interest who agree to safeguard their use.
- Test materials and scores may be released only to persons qualified to interpret and use them properly.
- If a test taker or the parent of a minor child who has taken a test wishes to examine test responses or results, the parent or test taker may be permitted to review the test and the test answers in the presence of a representative of the school, college or institution that administered the test.
- Test materials must not be resold, re-licensed, transferred or otherwise redistributed for any purpose without prior written permission from Pearson.
Universities, schools, organizations, businesses, clinics, and hospitals are subject to the guidelines set forth above and must have appropriately qualified individuals on staff in order to purchase test materials. These individuals must complete a Customer Registration Form or provide information as to their qualifications. Orders not accompanied by this documentation may not be processed.
Qualified customers should comply with the requirements of their respective institutions concerning the use of purchase orders. Pearson Canada Assessment Inc. may not be able to process orders without the appropriate purchase order(s) or other documentation required by the institution.
No educational materials will be shipped to a home address. If you are a homeschooler, please contact Customer Care for advice. There are homeschool agencies that provide testing services in programs approved by Pearson Canada Assessment Inc.
To the extent permitted by law, Customer agrees to hold harmless, indemnify and defend Pearson from and against any and all claims, charges, demands, damages, liabilities, losses, expenses, and liabilities of whatever nature and howsoever arising (including but not limited to any legal or other professional fees and the costs of defending or prosecuting any claim and any loss of profit, goodwill, and any other direct or consequential loss) incurred or suffered by Pearson directly or indirectly by reason of any act or omission that the Customer commits in breach of these Terms & Conditions and the obligations and warranties contained in them.
9. Requests for permission to license Pearson Intellectual Property
Reproduction of any purchased materials requires the prior written consent of Pearson Canada Assessment Inc. Questions and answers, including practice questions and answers, may not be reproduced without written permission, regardless of the number of lines or items involved. Test copies may not be bound in theses or reports placed in libraries, generally circulated, or accessible to the public, or in any article or text of any kind.
Pearson will consider requests for permission to reproduce, modify, adapt, or translate part or all of any copyrighted publication and will also consider the granting of licenses for use of our copyrighted materials. Requests to reproduce, translate, adapt, modify, or make special versions of these publications should be submitted via our Request for Permissions Form.
Once approved, any reproduction must include acknowledgement of the source, including author, test, publisher, and copyright notice.
Pearson accepts credit card payments through our e-commerce portal and call center. Credit card information is not accepted via postal/mail, facsimile, or email.
Pearson accepts payment by check, money order, or Visa, MasterCard or American Express credit cards. All invoices are payable net 30 days. Prepayment is required for all new accounts. Charges not paid when due are subject to a late charge accruing from the due date of 1.5% per month or the maximum permitted by law, whichever is less. The Customer is responsible for any attorney's or collection fees incurred by Pearson in collecting charges not paid when due. Payment must be made in Canadian dollars. Pearson will collect and report federal and provincial taxes applicable to the customer's shipping address. If your account is not currently listed as "tax exempt", applicable federal and provincial taxes will be added to your invoice. If you wish to be listed as "tax exempt" for future purchases, please send a copy of your tax exempt certificate to Customer Care.
11. Modifications of Terms and Conditions
Pearson reserves the right to amend pricing and these Terms & Conditions at any time without prior written notice. Pearson, without any penalty or liability, reserves the right to (a) publish or replace current products with new, revised, or updated products at any time; and (b) place any product "out of print" or discontinue offering the product for purchase. The most current Terms & Conditions will be posted at Pearson's Website.
12. Definitions and Notes
"Terms & Conditions" means Pearson Terms and Conditions of Sale and Use and the Qualifications and return policies referenced in these Terms & Conditions. A printed copy of the Terms & Conditions, including the referenced policies, is available by calling 800.627.7271. These terms may be viewed in 12 point type at our Website.
"Pearson Product(s)" means assessment instruments and/or materials (including but not limited to software, administration and user reference materials, manipulatives, reports and services) published by Pearson.
“Other Publisher's Product" means assessment instrument(s) and/or material(s) (including but not limited to software, administration and user reference materials, manipulatives, reports and service) not published by Pearson.
"Pearson" means the Pearson Canada Assessment, Inc. business unit of NCS Pearson, Inc.
"Customer" means the purchaser and qualified user of a Product, who are individually and collectively referred to as "Customer."
"Website" means PearsonClinical.ca.
"applicable professional guidelines" means the guidelines as established by the professional association for which the test is intended.