Terms and Conditions of Sale and Use of Pearson Products

1. ACCEPTANCE OF Ts & Cs^a.

Sales by Pearson's Diagnostic and Special Needs Assessment group^b and the purchase and use of the Products^c by Customer^d are conditioned upon acceptance of these Ts & Cs. Customer agrees to these Ts & Cs by submission of user qualifications, order(s) or by paying part or all of a Pearson Invoice. These Ts and Cs constitute the entire agreement between Pearson and the Customer and supersedes any purchase order terms associated with a Purchase Order (P.O.) number on this order. If any provision of the Ts & Cs is found to be illegal or unenforceable, the remaining provisions will be enforced. The Ts& Cs many not be waived or modified except by prior written agreement signed by a Pearson Vice President. Minnesota law will govern this agreement, however issues involving copyright and patent will be resolved under U.S. Federal Law and U.S. Federal Court interpretations thereof. Neither the Customer nor Pearson intends there to be any third party beneficiaries to this Agreement.

2. Warranty

Pearson warrants that the products published directly or under license by Pearson ("Pearson Products") in their standard form will not infringe any valid third-party U. S. patents or copyrights existing at the time of publication. This warranty does not extend to any non-Pearson Product, books or to any infringement arising from the use of the Pearson Products in combination with systems, software, or equipment, not supplied by Pearson. If the customer promptly notifies Pearson of such an infringement claim 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 Pearson Products. Pearson may, in its discretion, furnish the customer with non-infringing replacement products within sixty (60) days or repurchase unconsumed Products. EXCEPT AS STATED HEREIN, PEARSON MAKES NO 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

WITHIN THE US, Risk of Loss is FOB Destination with freight from Pearson warehouse charged to the Customer. Qualifying product returns receive full credit within 6 months of purchase. Required information includes 1) proof of purchase (Pearson invoice or packing list), 2) reason for return, 3) customer account number, name, and phone number, and 4) return addressed to Pearson, ATTN: Returns Department, 199 Pearson Parkway, Lebanon, Indiana, 46052.

Materials must be currently sold and in clean, saleable condition (unused and undamaged), in unopened sets or packages, as originally purchased.

Materials and software administrations returned after 30 days but prior to 6 months after purchase are subject to a handling charge of $25.00 per returned parcel. Materials damaged in transit or defective software must be returned for exchange within 30 days from the date of shipment from Pearson.

Important note: Lost, damaged or stolen report counters and unused administrations will not be replaced free of charge. All sales of scanning hardware are final.

4. Limitation of Liability

IN NO EVENT WILL PEARSON BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR PURCHASE OR USE OF THE PRODUCTS OR SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OR AGREEMENT BETWEEN THE CUSTOMER AND PEARSON, PEARSON’S TOTAL LIABILITY TO ANY PARTY, ARISING OUT OF THIS AGREEMENT OR 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

The Customer agrees that it is the Customer's responsibility to use any Products in accordance with Pearson Qualification Requirements and applicable professional guidelines^f. The 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.

6. Copyright and Trade Secrets

Pearson Products are protected by various intellectual property laws, including trade secrets, copyright and trademarks. Printing or reproducing copyright-protected materials or content, including reproduction of test items, scales, scoring algorithms, scored directions, or other content, is prohibited by law and by these Ts & Cs. Pearson software outputs, including but not limited to reports, are protected as trade secrets. Trade secrets are not permitted to be disclosed in response to requests made pursuant to HIPAA^g or to any other data disclosure law that exempts disclosure of information or documents protected as trade secrets. The Customer's purchase of Pearson Products does not grant the Customer a right to reproduce additional copies of materials or the content or enter content onto a computer medium, such as non-Pearson scoring systems or software. However, if the Customer licenses and uses Pearson 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. The Customer may not, under any circumstance, copy or reproduce the text or graphic image of any test item.

7. Indemnification

To the extent permitted by law, the 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 Ts & Cs and the obligations and warranties contained in them.

8. Payment

Pearson accepts payment by check, money order, or Visa, MasterCard or American Express credit cards. Payment must accompany order. Pearson will invoice institutional Customers if orders are received on official purchase orders with tax exempt certificate on file at Pearson (if applicable). 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 1-1/2% per month or the maximum permitted by law, whichever is less. The Customer is responsible for any attorneys’ or collection fees incurred by Pearson in collecting charges not paid when due. Payment must be made in U.S. dollars. Purchasers are responsible for all taxes and tariffs related to intercountry shipments. Pearson will collect and report state and local taxes applicable to the Customer's shipping address.

9. Definitions and Notes

^a "Ts & Cs" means Pearson conditions of sale and use and the qualifications and return policies referenced in these Ts & Cs. A printed copy of the Ts & Cs, including the referenced policies, is available by calling 800.627.7271, ext. 3225.

^b Pearson' Diagnostic and Special Needs Assessment group is a business of NCS Pearson, Inc. Both organizations are included in the term "Pearson."

^c "Product(s)" means assessment instruments (including those formerly published by AGS Publishing) and related materials (including but not limited to software, administration and user reference materials, manipulatives, reports and services.)

^d "Customer" means the purchaser and qualified user of the Product, who are individually and collectively referred to as "Customer."

^e "Website" means PearsonAssessments.com

^f "applicable professional guidelines" include but are not limited to the Standards for Educational and Psychological Testing, published by the American Educational Research Association (AERA), American Psychological Association (APA), and the National Council on Measurement in Education (NCME), Pearson software license (if applicable) and all federal, state, and local laws and regulations, including, but not limited to HIPAA and FERPA. Use of psychological tests in employment-related situations may be subject to certain laws including Title VII of the Civil Rights Act of 1964, as amended; the Americans with Disabilities Act of 1990, as amended; and other federal, state, and local laws and regulations.

^g See HIPAA:Frequently Asked Questions.