Terms and Conditions for working with Optimal Admissions through the online tutoring platform, Wyzant, INC.
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Please read the Terms and Conditions carefully. By participating in Services or by clicking to accept or agree to the Terms and Conditions when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use. If you do not agree to these Terms of Use, you must not proceed with scheduling a session to receive Services.
This consulting agreement ("Agreement”) is made by and among Optimal Admissions LLC (the “Company”), with offices located in South Carolina, and a middle or high school student seeking admission to a college or university ("Student"); and, if the Student is a minor, the parent or guardian who has accepted the responsibility in assisting the Student and the Company in the course of the Student's efforts to obtain admission at a college or university in the United States (the “Responsible Party”). By accepting these terms, you represent and warrant that you have obtained parental or guardian consent to do so and that your parent or legal guardian accepts their role as the Responsible Party.
WHEREAS, the Company has the capability and capacity to provide the services with respect to the college admission process as defined below;
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WHEREAS, the Student and the Responsible Party desire to retain the Company to provide the said services and collaborate with the Company to increase the likelihood of the Student being accepted at a college of their choice;
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WHEREAS, the Parties acknowledge and agree college admission is a subjective process and none of the Parties are guaranteeing an outcome, rather, they are representing they will make reasonable efforts to accomplish the Student's goals;
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WHEREAS, the Parties acknowledge and agree the ultimate responsibility for admission to college rests with the Student and the Company and the Responsible Party are only serving to facilitate the efforts of the Student.
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NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Student and the Responsible Party agree as follows:
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1. Services and Payment. The Student and Responsible Party agree to abide by Wyzant, Inc’s Terms of Use, which can be found here.
1.1 Performance of Service. Schedule for meetings, tasks, and responsibilities will be mutually agreed by the Parties. If the Student needs to cancel or reschedule a scheduled meeting with the Company, a notice of cancellation must be provided by the Student to the Company twenty-four (24) hours prior to the meeting. If the Student does not provide notice within twenty-four (24) hours, the Company may exercise its right to collect full payment for the cancelled meeting or reschedule the meeting at an additional cost to the Student and the Responsible Party.
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1.2 Payment. The Student or Responsible Party will pay the Company for the Services at the rate specified on the Company’s Wyzant profile and will abide by Wyzant’s payment terms.
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2. The Company's Obligations. The Company will:
2.1 Perform the Services in a professional and workmanlike manner and devote adequate resources to meet its obligations under this Agreement;
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2.2 Timely respond to communications from the Student and the Responsible Party;
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2.3 Be accessible to answer questions and perform other Services during the Company's scheduled business hours; and
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2.4 Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Service Provider in providing the Services.
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3. Student Obligations. In addition to Wyant’s Terms of Use, the Parties expressly acknowledge and agree that the application preparation and college admission process is the primary responsibility of the Student. Thus, the Student agrees they will:
3.1 Remain in close communication with the Company regarding any college admission correspondence from colleges and other pertinent information to the college admissions process;
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3.2 Maintain communication with any high school counselor, teacher, or personnel involved in the college admissions process and follow any requirements and/or advice of the high school counseling office. This includes communication from high school personnel regarding the school's college application procedures and internal deadlines for requesting transcripts, letter of recommendation, and other documents received from the high school;
3.3 Provide all high school transcripts, SAT/ACT/PSAT/PLAN or other standardized testing results, and any other documentation that may be helpful to the Company in rendering the selected Services;
3.4 Respond promptly to the Company's requests for information, approvals, or decisions reasonably necessary for the Company to perform Services in accordance with the requirements of this Agreement;
3.5 Provide materials in a timely manner, as the Company may reasonably request to carry out the Services, and ensure the materials are complete and accurate in all material respects;
3.6 Confirm all application deadlines and required application materials including standardized test requirements, essays, applications, letters of recommendation, and application fees;
3.7 Monitor the status of all applications and respond to offers of enrollment;
3.8 Pay the fees associated with submission of admission applications, financial aid applications, and standardized testing;
3.9 Prepare for meetings with the Company by completing any assignments on time and submitting accurate and complete information when requested;
3.10 Communicate with the Company regarding any challenges with respect to meeting deadlines such as illness and other events beyond the Student's control;
3.11 Ensure all portions of college applications or other written work created under the terms of this Agreement are the Student's own work product with the exception of guidance, revisions, or editing the Company or the Responsible Party may provide. Plagiarism or receiving assistance from other individuals who are not a party to this Agreement constitutes a material breach of this Agreement and may result in immediate termination of the Services without a refund at the Company's discretion; and
3.12 Abstain from using any defamatory, obscene, indecent, abusive, offensive, aggressive, harassing, violent, hateful, inflammatory, or other objectional language, or submit any materials containing the aforementioned, either in communications to the Company or in communications with any school, college or university the Student seeks admission to.
3.13 If the Company's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Student, the Company will not be deemed in breach of its obligations under this Agreement or otherwise liable for costs, charges, or losses sustained or incurred by the Student, in each case, to the extent arising directly or indirectly from such prevention or delay.
4. Results Disclaimer. The Parties agree that the Company cannot and does not guarantee that the Student will attain a specific result or obtain admission into any college or university, and the Student and the Responsible Party accept the risk that results differ for each individual and depend on each individual's background, dedication, and other variables unique to each college or university and fully agree that there are no guarantees as to the specific outcome or results from using the Services. The ultimate responsibility for admission to college rests with the Student​.
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5. No Warranties.
5.1 Except for the express warranties in this Agreement, the Company hereby disclaims all warranties, either express, implied, statutory, or otherwise under this Agreement and makes no representations, warranties, or guarantees of admission to any college or university or any particular results. Services, products, offerings, content and materials provided by the Company in connection with rendering Services are provided "as is" on an "as available" basis and without warranties other than the express warranties in this Agreement. The Company's members, managers, affiliates, licensors, service providers, employees, agents, officers, or directors, disclaim all warranties, express or implied, including implied warranties of merchantability and fitness for a particular purpose, title, compatibility, security, accuracy, or non-infringement. The Company does not warrant or make any representations regarding the use of the Services or the results of the Services, products, offerings, content, or materials in terms of their correctness, accuracy, reliability, usefulness, or otherwise. No advice or information obtained from the Company will create any warranty not expressly provided for in this agreement.
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​6. Intellectual Property.
6.1 The Company is and will be the sole and exclusive owner of all intellectual property rights of the Company, including, but not limited to any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection of the Company (collectively, "Intellectual Property Rights").
6.2 All work product prepared and delivered by the Company to the Student under this Agreement in the course of performing the Services, including, without limitation, any feedback, input, revisions, edits, amendments, suggestions with respect to improvements, drafts and other similar materials pertaining to the Services ("Deliverables") will become the property of the Student upon full payment of all moneys owed to the Company. At all times, prior to payment in full, ownership of the Deliverables will remain with the Company.
6.3 As between the Company and the Student, the Company is, and will remain, the sole and exclusive owner of all right, title, and interest in and to all documents, data, know-how, methodologies, techniques, software, and other materials developed or acquired by the Company prior to the date hereof or independently of the performance of any Services hereunder ("Pre-Existing Materials"), including all the Intellectual Property Rights therein. the Company is, and will remain free to use, perform, display, reproduce, distribute, modify, make derivative works of, make, sell, offer to sell, import, and otherwise exploit such Pre-Existing Materials, including, without limitation, in connection with any other projects and/or and services performed for any other customers.
6.4 The Company name and all related names, logos, slogans, product and service names, and designs, are trademarks of the Company or its affiliates or licensors. The Student and the Responsible Party agree not to use any such marks without the prior written permission of the Company. Any other names, logos, product and service names, designs, and slogans represented on the Company website or in materials provided by the Company are the trademarks of their respective owners.
6.5 The Parties expressly agree and recognize the Company's Intellectual Property Rights in its Deliverables are critical to the Company's business and its ability to operate successfully. As such, the Parties agree that the delivery of any Deliverables does not grant the Student or Responsible Party any right to share any of the Deliverables with any third party. The Student and the Responsible Party expressly agree that all Deliverables will be maintained in a confidential manner and neither the Student nor the Responsible Party will disseminate, disclose, or otherwise transfer any of the Deliverables, whether in full or in part, in a hard or an electronic form, verbally or in writing, to any third party, including, but not limited to, other students seeking college admission, parents, legal guardians, or relatives of students seeking college admission, and any other party not subject to this Agreement. Notwithstanding the above, the Parties acknowledge that the Student may use the Deliverables only for the purpose of submitting the Student's own applications to colleges and/or universities, consistent with the terms of this Agreement. The violation of this provision will be deemed a material breach of the Agreement.
6.6 To the extent the Company has obtained legal right and authority to use additional materials developed by others and documentation and materials with the public interest, those items will remain owned by their respective copyright holders or in the public domain.
7. Majority. Any Student entering into this Agreement under the age of eighteen (18), is required to have a Responsible Party be a co-signor to the Agreement. By signing up for Services without a Responsible Party, the Student represents, under penalty of fraud, they are at least eighteen (18) years of age. If a Responsible Party is co-signing this Agreement with the Student, the Responsible Party represents, under penalty of fraud, they are the legal parent or guardian of the Student. To the extent this Agreement is signed by a Student under the age of eighteen (18) and to the extent Services are delivered to and participation continues by the Student after the Student's eighteenth (18th) birthday, this Agreement is deemed to be ratified by the Student by virtue of the delivery of Services and the participation of the Student after their eighteenth (18th) birthday.
8. Confidential Information. From time to time during the term of the Agreement, either Party may disclose or make available to the other Party information about each other, including, but not limited, its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party will not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party will promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information will survive the termination or expiration of this Agreement.
9. Indemnification. The Student and any Responsible Party agree to indemnify and hold harmless the Company from all claims, losses and expenses, and fees including attorneys' fees, costs and judgments that may arise in connection with any breach of this Agreement by either, or both of them. To the fullest extent provided by law, in no event will the company, its affiliates, members, managers, directors, officer, or their licensors, service providers, employees, agents be liable for any direct, indirect, incidental, special, consequential, exemplary or punitive damages, or any other damages whatsoever, including but not limited to, damages for personal injury, pain and suffering, emotional distress, death, and whether caused by tort (including negligence), breach of contract, or otherwise, even if foreseeable, arising out of or resulting from, (a) the use or the inability to use the services; (b) the use of any content; (c) any other matter relating to the services; or (d) violation of this agreement. The student and the responsible party expressly agree that if either of them is dissatisfied with the services, their sole and exclusive remedy is to discontinue using the services. Notwithstanding the foregoing, the sole and maximum liability of the company, its affiliates and its or their respective third-party service providers, licensors and suppliers under all circumstances for all damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence), or otherwise) will not exceed the amount paid under this agreement, if any, for our services. If any portion of this limitation of liability is found to be invalid, liability is limited to the fullest extent permitted by law. The student and the responsible party expressly agree that this limitation of liability represents a reasonable allocation of risk and is a fundamental element of the basis of the bargain between the company and the student and the responsible party. The services would not be provided without such limitations. The student and the responsible party, on behalf of themselves, their personal representatives, and their heirs, hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify the company, its affiliates, their licensors, service providers, employees, agents, officers, or directors, successors and assigns from any and all claims, actions or losses for bodily injury, property damage, wrongful death, emotional distress, loss of services or other damages or harm.
10. Entire Agreement. This Agreement, together with any related exhibits, schedules, attachments, appendices, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
11. Amendments. No amendment, modification, rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
12. Survival. The rights and obligations of the Parties set forth in Section 1 with respect to any outstanding payment due to the Company, Section 6, Section 8 and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
13. Assignment. Student or Responsible Party will not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section will be void. The Company may assign any of its rights or delegate any of its obligation to any affiliate or to any person acquiring all or substantially all of the Company's assets or membership interests.
14. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. Nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Governing Law and Dispute Resolution. This Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of South Carolina without giving effect to any choice or conflict of law provision or rule. The Parties agree that, in the event of a dispute, act in good faith to settle their differences in a collaborative manner. In the event, that they cannot do so, the party may bring said lawsuit in a court of competent jurisdiction in Spartanburg, South Carolina. Further, the prevailing party shall be awarded reasonable attorney’s fees and cost.
17. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
18. Waiver. No waiver by any Party of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving.
19. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under this Agreement, including, without limitation, Section 6 and/or Section 8, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
20. Force Majeure. Either Party will be excused from any delay or failure of the performance as required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control including, but not limited to, acts of God, acts of war, fire, insurrection, laws, proclamations, edicts, or other ordinances or regulations, strikes, lockdowns or other serious labor disputes, riots, earthquakes, floods, explosions, or other acts of nature including, but not limited to, pandemics. Delay or failure of performance will be excused if the employee or person assigned to perform the Services for the Company is rendered unable to do so by virtue of medical condition or death. If any of these events occur for more than fourteen (14) days, any Party will exercise their right to cancel the obligations hereunder and the fees paid will be allocated based on the services performed.