Terms and Conditions of Use for Companies TERMS AND CONDITIONS OF USE FOR PROFESSIONALS
General
Educational Testing Service (ETS) BV (“ETS BV”) is a Dutch company, registered at the Dutch Trade Register of the Chamber of Commerce under number 34153484, for the purpose of this agreement operating through the French branch office at ETS EMEA, 66 avenue des Champs Elysées, Bât. E, 75008, Paris. This Website is hosted by Easynet (Easynet SAS, 55, Avenue des Champs Pierreux, 92000 Nanterre, France. Tel. +33(0)1.77.49.70.00, http://www.easynet.com/fr/fr/).
ETS Global BV is a fully owned subsidiary of Educational Testing Service (“ETS”), a nonprofit corporation organized under the Education Law of New York, U.S.A., which is the publisher and owner of the examination known as the "Test of English for International
Communication" or “TOEICÒ test”, and all related documentation, files, data, and any intellectual property rights therein.
ETS Global BV provides the Company with access to this Website and the Services and Products available on this Website. Access to and use of this Website is governed by these Terms and Conditions of Use (referred to as the "Agreement"). By accessing or using the Website, the Company indicates its assent to be bound by the Agreement, and its acknowledgment of, and agreement to its terms.
You hereby agree that you have the authority and capacity to enter into a contract on behalf of your company and are duly empowered to act on behalf of your company for the purposes of entering into this agreement. For the avoidance of doubt, by entering into this agreement you, your company, and any other users registering on your company’s behalf will be bound by these Terms and Conditions of Use.
Article 1 Definitions
“Administrator” shall mean the Registered User accessing the Website through the Administrator Profile.
“Company” shall mean the company entering into the Agreement, acting by the Registered User under a Profile.
“Company Account” shall mean the online account allowing a Registered User to access dedicated part of the Website.
“Group Contract” shall mean the contract for the purchase of Products or Services managed by a Group Administrator on behalf of several entities.
“Group Administrator” shall mean the Registered User accessing the Website through the Group Administrator Profile.
“Legal Representative” shall mean the Registered User accessing the Website through the Legal Representative Profile.
“Online Test” shall mean the online test ordered by a Registered User in order to enroll selected individuals who wish to remotely take Online Tests available from ETS Global BV.
“Product(s)” shall mean the tangible product(s) sold by ETS Global BV on the Website such as books, CD’s or other training materials.
“Profile” shall mean any one of the profiles as described in Article 4, which shall be created by ETS Global BV or the Company as the case may be.
“Private Test Session(s)” shall mean the test session(s) which is/are directly ordered by a Registered User in order to enroll selected individuals who wish to take the TOEIC, TOEIC Bridge, TFI and other tests which may be developed by ETS Global BV in the
future.
“Private Test Session Appointment(s)” shall mean the individual test taker seat(s) ordered by a Registered User for a Private Test Session.
“Public Test Session(s)” shall mean the test session(s) which is created by ETS Global BV and to which any individual can enroll to take the TOEIC, TOEIC Bridge, TFI and other tests which may be developed by ETS Global BV in the future.
“Public Test Session Appointment(s)” shall mean the individual test taker seat(s) ordered by a Registered User for a Public Test Session.
“Purchaser” shall mean the Registered User accessing the Website through the Purchaser Profile.
“Reader” shall mean the Registered User accessing the Website through the Reader Profile.
“Registered User” shall mean any person who is granted access to the Website in accordance with its Profile.
“Service(s)” shall mean the services available on the Website such as Test Sessions or Online Tests.
“Territory” shall mean the country where your organization has its statutory seat.
“Test” shall mean the TOEIC, TOEIC Bridge, TFI and other tests which may be developed by ETS Global BV in the future.
“Test Assistant” shall mean a room administrator, proctor or supervisor certified by ETS Global BV to administer a Test session and/or assist during such Test Session.
“Test session(s)” shall mean either Private Test Session(s) and /or Public Test Session(s).
“Website” shall mean this website.
“You” or “Your” refers to the Company.
Article 2 Use of the Website
Under this Agreement, ETS Global BV gives You permission to access and use the Website for Your professional use, and to copy, distribute and transmit the content of the Website only to the extent that such copying, distribution, and transmission is automatically done through Your browser software incidentally to using the Website for Your professional use. You may also print a copy of the information displayed on the Website for Your professional use. That means, that except as set forth above, You may not modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, obtained by Your use of the Website or reverse engineer, decompile, disassemble or in any way attempt to create source code from any software contained within the Website. This restriction means, among other things, that You may not mirror on Your own website any portion of the Website or display through Your own website any results pages or other information from the Website without ETS Global BV's prior express permission.
The technology underlying, and content within, the Website is owned by ETS and is protected by copyrights and other intellectual property or proprietary rights. If You use the Website other than as provided above, You may violate applicable (intellectual property) legislation and may be subject to penalties. As between the Company and ETS
Global BV, ETS owns and retains all ownership of the technology underlying and content within this Website, and reserves all rights not explicitly granted to the Company in this Agreement.
When using this Website the Company represents and warrants that:
- the information provided to ETS Global BV is not false or misleading,
- the Company will not violate any applicable law or regulation,
- the Company will not infringe in any manner any copyright, patent, trademark, or other intellectual property right of any third party.
Article 3 Trademarks
TOEIC, TOEIC® test: TEST OF ENGLISH FOR INTERNATIONAL COMMUNICATION™, TOEIC® Listening and Reading, TOEIC® Speaking and Writing tests, TOEIC® 4 skills, TOEIC Bridge™, TOEIC® Practice Online: Speaking and Writing, The TOEFL® test: TEST OF ENGLISH AS A FOREIGN LANGUAGE™, TOEFL® PBT (Paper-Based Testing), TOEFL® iBT (Internet-Based Testing), TOEFL® Practice Online, Test de Français International (TFI™), The TOEFL® ITP (Institutional Testing Programme), CriterionSM Online Writing
Evaluation Service, Online Scoring Network™ (OSN), Educational Testing Service, ETS, ETS Global BV are registered trademarks of ETS.
All rights in the Product names, company names, trade names, trademarks, graphics, logos, page headers, button icons, scripts, Product packaging, trade dress and designs of ETS whether or not appearing in large print or with the trademark symbol, belong
exclusively to ETS and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is
expressly prohibited, and nothing stated or implied on this Website confers on the Company any license or right under any trademark of ETS.
Article 4 Access to the e-store
In order to access the dedicated part of the Website and to be able to purchase Products or Services, You must be a Registered User and have a Company Account.
Upon successful registration and assent to the terms of this Agreement, ETS Global BV will create for the Company the Legal Representative Profile, the Administrator Profile or the Group Administrator Profile. These Profiles will be allocated a login name and password. The Legal Representative Profile may only be utilized by the Company. These password and login are strictly private and confidential and must not be passed on or shared with any third party.
The Administrator and the Group Administrator can create 2 further Profiles attached to the Company Account, which are:
1) Purchaser Profile;
2) Reader Profile.
Each Profile may be held concurrently by the same individual or be created by one individual, who will register as a Registered User under that Profile and who must agree to be bound by the same terms of this Agreement as if it was the Company. Each Registered User will be allocated a login name and password for its individual Profile.
Each Profile may only be utilized by the Registered User registered under that Profile.
The Legal Representative can view the Administrator, the Purchaser, the Reader and the Group Administrator dedicated areas of the Website and is allowed access to the contract management section. The Legal Representative is in charge of the execution and electronic validation of contracts for the purchase of Products and Services.
Depending on which profile the Registered User is attached to, the Registered User is granted a different access to sections and sub-sections of the Website.
1) Administrator
An Administrator can view the Purchasers and Readers area of the Website and access to all areas, except contract management section of the Website. The Administrator can create Registered Users.
2) Purchaser
The Purchaser profile is created by the Legal Representative, the Administrator or as the case may be the Group Administrator. The Purchaser orders Products and/or Services and can see all the Products he/she ordered.
3) Reader The Reader can only access the resources sections of the Website.
4) Group Administrator The Group Administrator can view the Administrator's and the Purchaser’s area of the Website. There is a Group Administrator only when there is a Group Contract.
Article 5 Group Contract
A Group Contract unifies the terms and conditions which apply to orders of Products or Services for a designated group of entities, which means that the contract is managed by one entity (the “Leading Entity”) which can be for instance a parent company or a
designated company of a group of entities. In this case, other entities located within the same country can be added from time to time to the Group Contract, they will then be subject to the same terms and conditions which apply to the Leading Entity.
Any change or modification to the Group Contract will automatically be applied to all of the entities included within the concerned group.
A Group Contract is managed by the Group Administrator of the Leading Entity.
Please note that if an entity is added to the Group Contract, the Legal Representative of the group shall validate the contract again, so that it applies to all entities, including the newly added entity.
Article 6 Disclaimer of Warranties and limitation of liability
This Website is provided by ETS Global BV on an "as is" and "as available" basis. ETS Global BV makes no representations and warranties of any kind, express or implied as to the operation of this Website or the information, content, products and services provided
on or through this site.
ETS Global BV disclaims all warranties as to the non-functioning, non-availability or adverse conditions of usage of the Website resulting from incorrect hardware, problems experienced by the Company’s Internet service provider or disruption of the Internet networks or for any other reasons outside the control of ETS Global BV.
Under these conditions, ETS Global BV does not guarantee that the Website shall function without interruption or error. In particular, the use of the Website may be interrupted at any time for the purposes of maintenance, updates or technical improvements, or to develop its content and/or presentation. Whenever possible, ETS Global BV shall inform the Company prior to maintenance works or updates.
Article 7 Privacy and Data Collection
ETS GLOBAL BV’s information practices are further described in its Privacy Policy. ETS global BV’s privacy policy is part of this Agreement, and the Company hereby gives its unequivocal consent for any data collected by ETS Global BV from the Company’s use of the Website to be used by ETS Global BV in accordance with its Privacy Policy. For more detailed information on our Privacy Policy, please click on the following link:
http://www.europe.etseurope.org/home-corpo-default/legal-notices
You should consider any communication that You transmit to ETS Global BV (including, without limitation, questions or answers and comments) as non-confidential, and agree that ETS Global BV will not be liable or responsible if information that belongs to You is intercepted and used by an unintended recipient.
Article 8 Return and Cancellation policy – Postponement
Return policy for Products
If the Company is not satisfied with the purchased Product, it may return the Product within 7 calendar days from the date of receipt, at its own expense, accompanied by its invoice and the return number provided to the Company by ETS Global BV customer service to the e-store from which the Product was bought and to the address indicated by the customer service and in the e-mail which will be sent to You by ETS Global BV customer service.
Should the Company wish to return a purchased Product, please inform ETS Global BV customer service at; contact emea@etsemea.org.
We request that You return the Product by registered post with receipt notice requested and that You purchase insurance with the carrier for the value of the said Product. ETS Global BV shall not reimburse a Product lost during return shipment.
Only new and complete Products will be accepted, returned in their original packaging.
Any Product that has been damaged, or has obvious sign of use or not in its original packaging, or packaging that has been worn beyond simply opening the Product will not be refunded.
Products which can be reproduced such as video or audio recordings (CDs, DVDs, Tapes) will not be refunded if not returned in their original sealed packaging.
Products returned without a return number will not be refunded. If You have lost Your return number ETS Global BV customer service will provide You with a new one upon request.
ETS Global BV will reimburse You by issuing a credit note which will be sent to You within 30 calendar days from the time the Product is received by ETS Global BV. ETS Global BV reserves the right to set off credit amounts against payment due.
In the event of non-authorized or non-conform return of Products, the merchandise will be sent back to You upon request at Your expense. We will request that You send us by check or bank transfer the shipping costs amount before returning the Product to You.
Return of faulty Products
If the Company wishes to return a Product that it considers to be faulty, defective, or that has been incorrectly delivered in accordance with a valid order, it must inform ETS Global BV’s customer service team at contact-emea@etsemea.org and be allocated with
a return number.
Faulty, defective, or incorrectly delivered Products may only be returned at Your expense to the e-store from which they were bought and must be received within 15 calendar days from the date of receipt of the Product by the Company.
We request that You send us the faulty Product by registered post with receipt notice requested and that you purchase insurance with the carrier for the value of the said Product. ETS Global BV shall not reimburse Products lost during return shipment.
Only new and complete Products will be accepted, returned in their original packaging.
Any Product that has been damaged, or has obvious sign of use or not in its original packaging, or packaging that has been worn beyond simply opening the Product will not be reimbursed.
Upon receipt, ETS Global BV will determine whether the Product is faulty, defective, or was incorrectly delivered in accordance with a valid order in line with the Company’s claims.
ETS Global BV will reimburse any Product correctly returned in accordance with the above provisions and which ETS Global BV agrees is faulty, defective, or incorrectly delivered in accordance with a valid order, by issuing a credit note within 30 calendar days, from the time the Product in question is received by ETS Global BV
In the event of non-authorized or non-conform return of Products, the merchandise will be sent back to the Company upon request at the Company’s expense. We will request that You send us by cheque or bank transfer the full shipping costs for returning such Products before returning them to You.
Cancellation of Services by the Company
· Cancellation of Public Test Session Appointment
Should You wish to cancel a Public Test Session Appointment, you may do so –subject to the conditions herein- by following the cancellation process in the area of the Website which is dedicated to you.
Please note that :
- Any Public Test Session Appointment cancelled up to 15 calendar days] prior to the scheduled Test Sessions date will be charged at a cancellation fee of 10% of the purchase price.
- There are NO REFUNDS for any Public Test Session Appointment cancelled less than 15 calendar days] prior to the scheduled Public Test Session date.
· Cancellation of a Private Test Session
You can cancel a Private Test Session, by accessing the area of the Website which is dedicated to You.
Please note that:
- Any Private Test Session Appointment cancelled up to 15 calendar days prior to the scheduled Test Sessions date will be charged a cancellation fee of 10% of the purchase price.
Please note that for technical reasons cancellation of Online Tests is not possible.
Postponement of Service by the Company
· Postponement of Public Test Session Appointment
- Should You wish to postpone a Public Test Session Appointment You may do so for up to 15 calendar days prior to the date of the scheduled Public Test Session by following the postponement process in the area of the Website which is dedicated to you.
- No postponement is possible for Public Test Session Appointment postponed within less than 15 calendar days prior to the scheduled Public Test Session date.
- Any Public Test Session Appointment postponed up to 15 calendar days] prior to the scheduled Public Test Session date will be charged a postponement fee of 10% the purchase price.
· Postponement of Private Test Session
- No postponement is possible for a Private Test Session postponed within less than 15 calendar days prior to the scheduled Private Test Session.
Please note that for technical reasons postponement of Online Tests is not possible.
Cancellation or postponement of Service by ETS Global BV
ETS Global BV reserves the right to cancel or postpone any Test Session without penalty. Should ETS Global BV cancel or postpone a Test Session, You will be informed by e-mail at least 5 calendar days in advance of such cancellation or postponement and given the opportunity to either receive a full refund of the price paid or reschedule a new Test Session date.
ETS GLOBAL BV is not responsible for any loss or damage as a result of a cancellation/postponement of a Test Session. ETS GLOBAL BV shall assume no liability whatsoever in the event a Test Session is cancelled, rescheduled or postponed due to a force majeure event that renders performance of the Test Session impracticable or
impossible. For purposes of this clause, a force majeure event shall include, but not be limited to: Act of God, fire, strike, governmental restrictions and/or regulations, act of war, act of terrorism, disaster; civil disorder and/or riots, suspension, and/or restriction on transportation facilities/means of transportation.
Article 9 Prices and Terms of Payment
The Purchaser can order Products or Services through the Website.
Booking Public Test Session Appointments
The Purchaser must search on ETS Global BV search engine for a Public Test Session which is available. Once the Purchaser has chosen an available Public Test Session he/she shall then register the individual test takers with complete and accurate contact information
When the Public Test Sessions Appointments are ordered, the test takers private account is automatically created by ETS Global BV’s system and passwords sent to their e-mail address.
The Public Test Session Appointments are provided in consideration of a price which appears in a pro forma invoice generated by ETS Global BV. Your order can be amended until Your order is in position “Locked”. Your pro forma invoice becomes final once Your order is displayed under the position “Locked”. A final invoice is then generated by ETS Global BV and sent to You
Your order shall be in position “Locked” 15 calendar days prior to the Public Test Session scheduled date.
Booking Private Test Session
The Purchaser must create a Private Test Session through the Website, indicating all required information indicating all information, including but not limited to, the desirable session date, the expected number of individual test takers, the name(s) of the Test Centre Administrator(s).
Once the Private Test Session has been created, the Purchaser must input the number of expected test takers on the date of the session. If the Purchaser would like to set up the session so that all test takers can have access to details of the session via a private account with ETS, then the Purchaser must register all expected individual test takers in a list format with their complete and accurate contact information (full name and email address). Given the full name and email address, ETS can create a private account where the test taker can access session details.
When the Private Test Session is ordered, if test taker names are indicated in the form by the purchaser, an e-mail will be sent to individual test takers informing them of their newly created private account and of the scheduled Private Test Session. If email
addresses are not listed for test takers, no private account will be created and it will be the responsibility of the Purchaser to inform test takers of the session details.
The orders with less than 3 individual test takers will be invoiced on the basis of 3 tests by ETS Global BV.
The Private Test Session Appointments are provided in consideration of a contractual price which appears in a pro forma invoice generated by ETS Global BV. An order can be amended until displayed under the position “Locked”, 15 days before the session date.
The pro forma invoice becomes final when ETS GLOBAL BV receives the answer sheets for the private session and in any case within 5 days from the scheduled session date. A final invoice is then generated by ETS GLOBAL BV and sent to the Company. This invoice
is accessible in the Client Extranet.
Booking Online Test
Online Tests are purchased in consideration of a price which is displayed in Your shopping cart and becomes final when the Purchaser checks out the Online Tests he/she wishes to order.
Ordering Product
Products are purchased in consideration of a price which is displayed in Your shopping cart and becomes final when the Purchaser checks out the Products he/she wishes to order. The Purchaser can buy Products in bulk with different prices applying to different volume of Products.
In accordance with Article 20, ETS Global BV reserves the right to amend the prices and terms of payment of the Products and Services at any time, taking into consideration the evolution of the cost of such Products and Services. All amended prices and terms of payment shall be effective thirty (30) calendar days after initially posted on the Website.
The Company shall be informed by e-mail of the nature of any such amendment as soon as it is posted on the Website. ETS Global BV will also give the Company the option to terminate an outstanding purchase which is affected by such variation should the Company not agree to a price variation.
Prices indicated on the Company’s invoice are exclusive of all sales taxes and VAT. Delivery costs are indicated to the Purchaser when Products are ordered online and will appear on the final invoice.
Article 10 Test Administrators
At all times Test Administrators certified by ETS Global BV must be present at a Test Session in sufficient numbers to accommodate testing sites and expected individual test takers.
Article 11 Availability
Please note that we will honor Your order when the Products are available in inventory.
In the event that one of the Products ordered is not in inventory, we will contact You no less than 5 calendar days as from Your purchase order date to inform You how long it will be before we are able to deliver the Product. This delay shall not exceed 40 calendar days from Your purchase order date.
Article 12 Delivery and Risk of Loss
The Products bought on the Website will be delivered within 15 business days.
ETS Global BV will only deliver products within the Territory to the address indicated by the Purchaser when it places an order.
All Products purchased from the Website are transported and delivered to You by an independent carrier not affiliated with, or controlled by, ETS Global BV. Title to Products purchased on the Website, as well as the risk of loss for such Products, passes to You
when ETS Global BV delivers these items to the carrier.
Article 13 Control over features, functions and Access to the Website
ETS Global BV reserves the right to change any information, features and functions of the Website without prior notice.
ETS Global BV may deny the Company or any Registered User using one of the Company’s Profiles access to all or part of the Website without prior notice if it or any of the Registered Users using one of the Company’s Profiles engages in any conduct or activity that ETS Global BV determines, in its sole discretion, violate this Agreement, the rights of ETS Global BV or the rights of any third party, or is otherwise inappropriate.
The Company shall indemnify ETS GLOBAL BV for any loss or damage arising out of or in connection with the use by the Company or any Registered User using one of the Company’s Profiles of the Website or otherwise in connection with this Agreement.
Article 14 Duration
This Agreement is a one (1) year term agreement.
Article 15 Termination
If either party defaults in the performance of its obligations hereunder, the other party may terminate this Agreement with thirty (30) days prior written notice to the defaulting party. If within the thirty (30) days prior notice period, the defaulting party has not
remedied the default, then this Agreement shall terminate.
ETS GLOBAL BV shall be entitled to immediately terminate the Agreement upon notice to the Company if the Company commits a material breach of this Agreement. A breach of articles 3 and 9 are considered material breach for purpose of this article.
Article 16 Late Payments
The Company will make all payments to ETS Global BV in Euros according to the applicable payment terms after the date of each invoice. Interest will be payable upon all amounts not paid on the due date at the statutory rate as provided for in Article 6:119
Dutch Civil Code.
Article 17 Choice of Law, Waiver and Severability
This Agreement shall be governed by the laws of France without regard to its conflict of law provisions. ETS Global BV's failure to exercise or enforce any right or provision of the Agreement will not be deemed to be a waiver of such right or provision. If any provision
of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
Article 18 Jurisdiction
You agree to submit to the exclusive jurisdiction of the competent court in France for any dispute arising from this Agreement, including, without limitation, the validity, interpretation or a breach of this Agreement.
Article 19 No Assignment
Unless expressly authorized in this Agreement, the Registered User may not assign or delegate any of its rights or obligations under this Agreement.
Article 20 Amendment
ETS Global BV may amend this Agreement at any time by posting the amended terms on its Website. Except where stated otherwise, all amended terms are automatically effective 15 calendar days after they are initially posted on the Website. This Agreement may not be otherwise amended except in a written document signed by You and ETS Global BV.
Article 21 No Agency or Partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement.
Article 22 Entire Agreement
Notwithstanding the existence of an agreement letter, this Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this
Agreement. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
Article 23 Force Majeure
Any delay or failure of performance by either party pursuant to this Agreement shall not be considered a breach of this Agreement if and to the extent caused by an event of force majeure, including without limitation fire, flood, earthquake, tsunami or other natural disaster, any regulation or law of any applicable governmental authority, terrorist act, act of war, civil commotion, labor disturbance, epidemic, sabotage, failure of the public utilities or international carriers. A party experiencing an event of Force Majeure, shall, as promptly as reasonable under the circumstances, notify the other party of the
occurrence of said event and make every commercially reasonable effort to find a workaround solution.
Article 24 Details ETS Global BV
If you have any questions, please contact ETS Global BV as follows:
ETS EMEA
66 avenue des Champs Elysées, Bât. E
75008 – Paris
France
Tel: +33 (0) 1 40 75 95 20
Fax: +33 (0) 1 42 22 02 35
Or by e-mail: contact-emea@etsemea.org
- Should You wish to postpone a scheduled Private Test Session You may do so for up to 15 calendar days prior to the date of the scheduled Private Test Session by following the postponement process in the area of the Website which is dedicated to you.
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