Refer to the separate Terms & Conditions for all PsychCorp products.
Materials and Ordering Information
Scoring & Reporting Services
Terms and Conditions of Use
Supplemental Terms apply to the referenced products:
Policies
Qualification Requirements for Purchase
1. Customer Service Center
Orders are processed at our Customer Service Center in San Antonio, Texas. To obtain prompt service, orders for materials should be sent to the Customer Service Center, P.O. Box 599700, San Antonio, TX 78259-9700. You may also place your order by calling 800-328-5999 or faxing your order to 888-556-2103.
Back to Top
2. Expedited Delivery
Customer Service must receive orders by noon Central Standard Time for Expedited Delivery.
3. Backorders
We make every attempt to maintain sufficient inventory to handle all routine orders without backorders. If a backorder occurs and you desire partial shipment or would prefer that we hold your order until it can be filled in its entirety, please let us know.
4. Confirming Orders
If an order is placed by phone or fax and followed up with a confirming purchase order, please make certain that it is clearly marked as CONFIRMING. This will prevent a duplicate shipment.
5. University Training Program Discount
For the materials covered by these Terms and Conditions of Use, a special training program discount of 40% is granted on the purchase of test materials for use in college or university measurement courses. Click here for more information.
6. Returns, Credits, Adjustments
Pearson guarantees satisfaction with the physical quality of the test materials covered by these terms and conditions. If materials are damaged or defective, they may be returned for exchange or credit at any time. If not defective in manufacturing, resalable test booklets, answer documents, and accessory materials may be returned for credit within 90 days of the invoice date. Only unbroken, resalable packages will be accepted, and packages must show complete name, address, invoice number, and reason for return on all paperwork. All returns (except those resulting from shipment error or manufacturing defects) will be assessed a 10% restocking fee.
Please observe these procedures to ensure prompt handling:
Check your shipment upon receipt. Do not open packages; broken test packages cannot be accepted for credit unless defective.
If you receive incorrect materials or quantities, or damaged or defective items, please call 800-328-5999. You will be connected with a Customer Service Associate who will provide assistance.
7. International Orders
For orders originating outside of the United States , call 210-339-5999, fax 210-339-5998 or email International.EducationalAssessment@pearson.com
8. Embargoes
Please note that at times, Pearson must restrict the sale of certain test materials within specific geographic regions because of various contractual arrangements.
Pearson Scoring Service provides carefully designed score reports. Contact the Scoring Hotline (800-328-5999 or fax 888-556-2103) for information and assistance when ordering scoring services and to resolve scoring problems. (When calling to discuss a scoring problem, be ready to provide the name, address, and zip code from the ”Ship To” section of your Order for Scoring Services). If you have received your reports, also provide the Process Number located at thebottom right of the report.
How toPrepare Your Order
1. Completing Your OSS
An Order for Scoring Services (OSS) listing the services and options available will usually be included in every order of machine-scorable test booklets and answer documents. Complete the OSS and enclose it with your shipment of answer documents. Please call the Scoring Hotline at 800-328-5999 if you need additional OSS forms.
Backto Top
2. Purchase Orders
Your Purchase Order number must be included on the Order for Scoring Services to ensure processing. Your original Purchase Order covering the scoring servicesshould be included with your Order for Scoring Services.
3. Where to Send Answer Documents
All tests covered by these Terms and Conditions are now processed by Pearson and should be sentto:
NCS Pearson, Inc.
Central Scoring Services19500 Bulverde RoadSan Antonio, TX 78259-3701
A label or return envelope directed to Pearson will be included with your shipment of machine-scorable testing materials. Tests covered by these Terms and Conditions should be sent to San Antonio and not to Iowa City.
4. Return of Score Reports for Catalog Orders
Once your shipment has arrived at Pearson, you should allow approximately 15 business days processing time for multiple-choice assessments, providing the shipment is processable when it arrives, plus the transportation time required to shipthe score reports back to you.
Performance assessments, including combination multiple-choice and open-ended assessments, are processed within 28 calendar days for catalog orders. For large open-ended or writing orders with more than 1,000 documents please call theScoring Hotline at 800-328-5999 to schedule processing timelines.
Should an “alert” situation occur in your order, your score reports may be delayed. You will be contacted if a problem arises. We suggest that you schedule meetings topresent and discuss test results only after the reports have arrived.
Unless you request the return of answer documents on your OSS, answer documents are retained for 60 days and then destroyed. Please indicate on the OSS if answer documents are to be returned. There is an additional charge forthe return of answer documents.
5. Questions About Your Score Reports (Score reports are notreturnable unless defective.)
If you have any questions about the score reports or their interpretation, contact theScoring Hotline for assistance at 800-328-5999, Fax 888-556-2103, or e-mail Scoring.Hotline@Pearson.com.
6. Special Coded Information
Test Booklets and Answer Documents include a numeric “Other Information” grid of six, eight, nine, or 10 columns. This feature may be used to record numerically coded information about each pupil. If you need help using this section, contactthe Scoring Hotline for assistance. (800-328-5999 or fax 888-556-2103)
Each column of digits can have a unique designation, determined by the school system. The numeric values of the codes marked in the “Other Information” section will be included, at no additional charge, in the various student reports generatedand on CD-ROMs and diskettes.
Effective: January 1, 2009
IMPORTANT NOTE: These Terms and Conditions of Use apply to the products and services listed on this website (Site), unless otherwise noted.
These Terms and Conditions of Use are subject to change; the Terms and Conditions of Use posted and applicable at the time of order shall govern each order.
For the purposes of these Terms and Conditions of Use, the term “Customer” used throughout shall mean any district, school, agency, company or individual, whether public or private, purchasing a license to use any of the materials in this catalog.
1. Acceptance of Terms and Conditions of Use
The purchase of a license for the use of test instruments, related materials, and services covered by these Terms and Conditions of Use are based upon acceptance of the various terms and conditions and adherence to all policies described, which may be modified from time to time. Customers agree to be bound to all terms and conditions effective at the time of order when placing an order for materials, signing the applicable Pearson Qualifications Form, a Purchase Order, a Test Order Form, an Order for Scoring Services, or by partial or total payment of Pearson’s invoice for any tests, materials, or services ordered. No modification or additions to these terms and conditions are binding upon Pearson unless previously agreed to in writing by an authorized representative of Pearson, including but not limited to any terms that may appear on customer purchase orders.
2. Prices
All prices and terms are subject to change without notice and are exclusive of taxes and shipping and handling charges.
Terms are Net 30 Days. No discounts are offered for cash payments or prompt payment.
3. Taxes
If an account is not currently listed as “tax-exempt,” applicable state and local taxes will be added to the invoice. Customers wishing to be listed as “tax-exempt” for future purchases must send a copy of a tax-exempt certificate to our Customer Service Center, Attn: Account Maintenance, P.O. Box 599700, San Antonio, TX 78259-9700.
4. Shipping and Handling
Test materials are shipped by traceable means via ground delivery unless first class, air, or special delivery is requested. Orders that include a specific delivery date will be treated as authorizing air or special delivery charges if accelerated shipping (or delivery) is needed to meet the required date. A handling charge of 8.5% will be added to orders for materials or scoring services to cover picking, packing, assembly and shipping costs. Software shipping and handling charges may vary. This charge will be listed on the invoice as “Shipping and Handling.” Please allow 10 days for delivery of test materials after receipt of an order.
Shipping and handling charges are subject to change without notice. For orders placedthrough the website for the products and services covered by these Terms and Conditions of Use, the minimum shipping charge is $10.00.
5. Limited Warranty
Pearson warrants that the products covered by these Terms and Conditions of Use will be manufactured in usable quality. PEARSON MAKES NO OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. REPLACEMENT OF MATERIALS, OR REFUND OF ALL OR A PORTION OF THE LICENSE PRICE (BASED UPON THE SALABLE CONDITION OF THE MATERIALS), AT PEARSON’S SOLE OPTION AND IN ACCORDANCE WITH THE PRODUCT RETURNS POLICY, CONSTITUTES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY.
Some jurisdictions restrict certain limitation of warranties, so some or all of the above limitations may not apply to all customers.
6. Confidentiality
Customer acknowledges and agrees the contents of Pearson’s tests may constitute trade secrets, which include confidential and proprietary material, information, and procedures. Customer will not sublicense, rent, lend, transfer, lease, resell or otherwise distribute materials, or authorize or allow disclosure of the contents of a test instrument protocol, including test questions and answers, or normative data, except under the limited circumstances described in the section titled “Maintenance of Test Security,” or as otherwise contemplated in the manual associated with the test. Customer acknowledges and agree that the use or disclosure of trade secrets in a manner inconsistent with the provisions of this Agreement may cause Pearson irreparable damage for which remedies other than injunctive relief may be inadequate. Accordingly, Customer agrees that in any request by Pearson to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, Customer will not maintain that such remedy is not appropriate under the circumstances.
7. Maintenance of Test Security
Each person or institution purchasing a license for a test must agree to comply with basic principles of minimum test security, including the standards described in the “Maintenance of Test Security and Test Use.”
Customer agrees that it will take necessary steps to inform its employees or other individuals who may have access to the test(s) of these Terms and Conditions and requirement for Maintenance of Test Security and Test Use.
8. Copyright Notice
Tests, test booklets, test items, norms, score reports, and other related materials of Pearson are copyrighted. They are not to be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system without permission in writing from Pearson. The reproduction of any part of Pearson’s copyrighted tests and related materials in any way, whether the reproductions are sold or furnished free for use, is a violation of federal copyright law. No adaptations, translations, modifications, or special versions may be made without permission in writing from Pearson; customers are advised that such adaptations, translations, modifications, or special versions may affect the validity of the tests.
9. Limited License
Customer acknowledges and agrees that Customer is purchasing a nonexclusive, nontransferable, revocable, limited license to use the copyrighted material subject to these Terms and Conditions of Use. The purchase of a license for any copyrighted material in no way transfers copyrights or other ownership interests to Customer except for a limited license hereunder. Additionally, Customer shall not (and shall not permit others to) sublicense, rent, lend, transfer, lease, sell or provide to others the copyrighted material except as otherwise provided by these Terms and Conditions of Use.
10. Limitation of Liability
PEARSON SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR LOST BUSINESS, PROFITS, INCOME, OR GRANTS, OR EXPENSES INCURRED BY CUSTOMER AS A RESULT OF DELAYS OR THE LICENSE OF SUBSTITUTE MATERIALS, ARISING OUT OF THIS AGREEMENT AND/OR THE USE OR MISUSE OF, OR INABILITY OF CUSTOMER TO USE, ANY PRODUCTS OR MATERIALS SUPPLIED HEREUNDER, EVEN IF PEARSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE. IN ANY EVENT, IN RESPECT OF ANY CLAIM, DEMAND OR ACTION ARISING OUT OF THIS AGREEMENT, CUSTOMER SHALL BE LIMITED TO RECEIVING ACTUAL AND DIRECT DAMAGES IN A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE CHARGES PAID BY CUSTOMER TO PEARSON HEREUNDER FOR THE APPLICABLE PRODUCTS OR MATERIALS ON WHICH THE CLAIM IS BASED.
11. Force Majeure
Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, act of God, war, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence.
12. Notices
Any required notices shall be given in writing to the Customer at the most recent contact information provided by Customer to Pearson. Customers agree that Pearson may send notices by electronic mail as an alternative to conventional mail.
13. Governing Law and Venue
These Terms and Conditions of Use, each transaction entered into in connection with this Terms and Conditions of Use, and all matters arising from or related to these Terms and Conditions of Use (including validity and interpretation) are governed by, construed, and enforced in accordance with the laws of the State of Minnesota, without reference to any conflict of law principles.
14. Limitation of Claims
Customer must bring any action on any claim against Pearson within one (1) year following the date the claim first accrued, or it shall be deemed waived.
15. Export Law Assurance
If the product(s) ordered from Pearson have been rightfully obtained within the United States, Customer agrees and certifies that neither the products nor any technical data received by the Customer from Pearson will be exported outside of the United States, except as authorized by the laws and regulations of the United States.
16. Maintenance of Test Security and Test Use
Each person or institution purchasing a test license must agree to comply and cause its employees and others having access to test materials to comply with these basic principles of minimum test security:
17. Software
The software licenses are sold on a per user basis and each license may be installed and used by one user only (unless otherwise noted).
Software may be returned within 30 days of invoice date. Software must be returned with all media, accompanying materials, and original packaging along with a written statement verifying that the software has been removed from all computers.
In addition to the above Terms and Conditions of Use, the following supplemental terms and conditions apply to the referenced products below. In the event of a conflict, the specific product terms will govern.
1. Definitions. NCS Pearson, Inc. is referred to herein as “Pearson.” The school district or other entity licensing the System from Pearson is referred to herein as the “Customer.” Pearson and Customer may sometimes be referred to in this Agreement individually as a "Party" or collectively the "Parties". In addition, the following terms when capitalized herein shall have these agreed-upon meanings:
1.1 “Authorized Site” shall mean a school or other Customer site designated in writing by Pearson, in Pearson’s price quotation on which Customer’s order was based or in Pearson written acknowledgment of Customer’s order, as authorized to provide Users access to the System.
1.2 “Customer Data” shall mean and include all administrative, student, teacher, and other related information belonging to Customer.
1.3 “Documentation” shall mean all written user information, workbooks, course materials, and instructional manuals and guides, whether in electronic, written, or other format, delivered by Pearson to Customer with respect to the System.
1.4 “Service Effective Date” shall mean the date that the System is agreed to be initially available for Customer to access and use (whether or not Customer is actively using the System).
1.5 “Subscription Fee” shall mean the amount to be paid by Customer for the license to use and access the System for a stated period. The Subscription Fee does not, however, include any one-time set-up or installation fees, or any fees or charges payable by Customer to Pearson for any training, project management, data load, implementation, or other services.
1.6 “System” shall mean all components of the Pearson Learnia product provided to Customer pursuant to this Agreement. This includes: (a) all System software applications, administrative and management programs, instructional and curriculum materials, and other content made available to Users; (b) any locally deployed software applications and administrative and management system programs that may be provided to Customer by Pearson as part of the System; and (c) all Documentation. All System features, modules, and changes to the System provided or made available hereunder, including all future System enhancements, will be considered part of the System and are subject to, and will be governed by, the terms of this Agreement.
1.7 “Users” shall mean those individuals authorized by Customer or an Authorized Site to access and/or use the System. Users must be limited to those individuals having an educational or administrative relationship to Customer (e.g., students, parents, teachers, or administrators).
2. Provision of and Access to the System. Pearson agrees to provide Customer access to and use of the System. Pearson may, in its discretion, from time to time, as determined by Pearson, add new content to the System, limit, modify or discontinue existing content made available with the System, or incorporate revisions into the System as may be deemed appropriate by Pearson.
3. System Availability. Pearson shall make the System generally available to Customer during the term of this Agreement; provided, however, Customer acknowledges that Pearson may take the System down from time to time to perform maintenance and/or upgrades. In addition, Customer agrees that from time to time the System may be inaccessible or inoperable due to System errors or causes beyond the control of Pearson or which are not reasonably foreseeable by Pearson, including, but not limited to: the interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion; or other failures (collectively “Downtime”). Pearson shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the System caused by Downtime, whether scheduled or not.
4. License and Use.
4.1 License Grant. Subject to the terms and conditions of this Agreement, Pearson grants to Customer a limited, personal, non-exclusive, non-transferable license to use and access the System for educational, instructional, and related administrative purposes. Customer shall grant access to the System only to Users at Authorized Sites and only for such purposes in accordance with the terms of this Agreement. If, at any time, Pearson permits Customer to increase the number of Authorized Sites or Users that may access the System, such additional access shall also be subject to the terms and conditions of this Agreement.
4.2 Access; Passwords; Unauthorized Use. Customer will control and manage access to the System and to all Customer Data stored on the host servers. Pearson shall provide Customer with the ability to generate passwords and/or user identifications, which shall be used by Customer to provide access to the System. Customer will instruct its Users as to the importance of maintaining the confidentiality of passwords and/or user identifications. Customer acknowledges that Customer’s data security may be compromised if Users do not follow all applicable security policies and procedures and take other appropriate steps to maintain the security of the System, including, without limitation, maintaining the confidentiality of User names and passwords, frequent changing of passwords, and maintaining appropriate internal controls to monitor access to and use of the System. Customer will promptly report any security concerns to Pearson through Pearson’s technical support line.
4.3 Copies. Customer shall have the right to make copies of Documentation only as necessary to support the use of the System as set out in this Agreement. Customer shall ensure that all copyright or other proprietary rights notices contained on the downloadable Documentation appears on all copies. Customer shall not, and shall not allow any other person or entity to, reproduce, copy, repost, download or distribute the System or any portions of the System, except as permitted by this Agreement, without the express written consent of Pearson.
5. Proprietary Rights.
5.1 Rights in the System. Customer acknowledges and agrees that all right, title and interest in and to the System and related intellectual property, including all copyright, trademark, trade secret and patent rights, belong solely to Pearson or its licensors. Customer agrees to keep the System and related intellectual property confidential and to utilize reasonable efforts to protect such materials from unauthorized disclosure or use. Customer will not attempt to or allow others to (i) modify, adapt, decompile, decrypt, disassemble, extract or reverse-engineer any part of the System provided hereunder; (ii) remove any proprietary, copyright, trade secret or other warning legend from the System provided hereunder; or (iii) furnish or distribute any portion of the System into any country in violation of national export control regulations. Customer will notify Pearson of any violations of Pearson’s proprietary rights of which it becomes aware.
5.2 Rights in Customer Data. Pearson acknowledges and agrees that all Customer Data is and shall remain the property of Customer. Pearson makes no claims as to ownership of any Customer Data. Pearson agrees to exercise commercially reasonable efforts to maintain as confidential and use solely as necessary for purposes of performing this Agreement all Customer Data that is disclosed to Pearson or is stored on servers hosting the System. Such commercially reasonable efforts shall include the use of commercially available encryption technology for transmission of Customer Data and the use of commercially available password protection technology within the System; however, Customer acknowledges that user identifications and passwords to access the Customer Data will be controlled and managed by the Customer and not by Pearson. Except as specifically stated herein, Pearson will not disclose Customer Data to third parties without Customer's consent. Pearson may, however, disclose Customer Data to entities performing work for Pearson related to the set-up, installation and training of Customer to use the System or the development, support or maintenance of the System, to the extent such disclosure is necessary for the facilitation of such work (in which case Pearson shall ensure that such entities are contractually bound to maintain the confidentiality of such information to the same extent that Pearson is), and may disclose the fact that Customer is a user of the System to business partners of Pearson that offer complementary products or services. In addition, Pearson may disclose Customer Data in the following situations: (a) in response to a subpoena, court order or legal process, to the extent permitted and required by law; (b) to protect user security or the security of other persons, consistent with applicable laws; or (c) in connection with a sale, joint venture or other transfer to some or all of the assets of Pearson.
5.3 Use of Data. Customer authorizes Pearson to use anonymous student assessment results from the Customer’s use of the System for research purposes.
6. Support and Services.
6.1 Support. During the term of this Agreement, Pearson will provide technical support for the System via telephone or electronic mail, on weekdays during Pearson’s normal business hours (CST), excluding holidays observed by Pearson. Customer acknowledges that Pearson’s provision of technical support does not extend to all Users of the System; rather, all requests for technical support from Pearson shall be made by persons employed by Customer who have been appropriately trained and whom Customer has designated as its Site Administrators for the System. Customer’s other Users must direct their requests for such support to Customer’s designated Site Administrators. Pearson will provide technical support to Customer’s Site Administrators to assist Customer in resolving errors or “bugs” in the System and to answer technical questions that affect the functionality of and Customer’s ability to use the System. Technical support does not include assistance with curriculum planning or interpretation of data.
6.2 Services. In addition to support services as described in Section 6.1, Pearson may provide certain other professional services pursuant to the following terms:
a) Initial Implementation Services. Specific descriptions of the applicable services to which Customer will be entitled as part of a standard package are available upon request.
(b) Additional Services. Should Pearson offer and Customer desire or require professional services other than any that might be included in the standard implementation package,, then such services, if available, will be at an additional cost, at Pearson’s then-current rates for same, or at such rates as may otherwise be agreed to in writing between Customer and Pearson.
(c) General Terms Applicable to All Services. For both any standard implementation package and any additional services that Customer may order, Pearson’s quoted rates do not include travel expenses. Customer shall also pay Pearson for such reasonable travel expenses (including transportation, lodging and meals) as may be incurred in the performance of services. Customer acknowledges that certain professional services may, at Pearson’s option, be performed on Customer's premises or remotely, via telephone, E-mail, or other forms of communication. For work to be performed on Customer's premises, Customer agrees to provide, at Customer's expense, appropriate work space and other on-site accommodations (e.g., access to utilities) necessary to enable Pearson to perform such work. Pearson reserves the right to require a purchase order or equivalent commitment to pay, or prepayment, prior to performing any services.
7. Payment Terms.
7.1 Payment; Taxes. Customer agrees to pay Pearson all fees charged under this Agreement, as well as all applicable taxes (exclusive of taxes based on Pearson’s net income) in accordance with Pearson’s invoice terms. Customer will provide Pearson with proof of any claimed tax exemption, and will be responsible for the payment of any applicable penalties, taxes, and costs which arise if the tax exemption proves inapplicable. Any sums not paid by the due date specified on the invoice will be subject to interest on the unpaid amount at the lesser of 1.5% per month (18% annually) or the maximum rate allowed by law.
7.2 Invoicing. The initial Subscription Fees and any associated professional services fees purchased will be billed in advance upon Pearson’s processing of Customer’s order for the System. Fees for professional services that are purchased subsequently will be billed as rendered. Prior to the expiration of the initial subscription term and any renewal term, Pearson will invoice Customer for the applicable renewal Subscription Fees for all Authorized Sites for the subsequent one (1) year period.
7.3 Suspension for Non-Payment. In addition to any other rights of Pearson under this Agreement, Pearson shall have the right to immediately suspend Customer’s access to the System and the performance of any other obligations of Pearson hereunder in the event that Customer breaches its payment obligations set forth in this Section 7, until such breach is cured.
8. Privacy. Customer acknowledges and agrees that, by granting user identifications and passwords, Customer controls, defines and manages access to all Customer Data and related records and data that will be used within the System. Customer is responsible for compliance with all federal and state privacy and student record laws that may be applicable to Customer’s use of the System. Customer will secure all necessary prior parental and student consents (if any are required) for the collection, storage and use of education records and personal information within the System.
9. Compatible Platforms/Hardware. Customer is responsible for meeting hardware, operating system, and other technical requirements necessary to properly access the System. Pearson will not be responsible for any incompatibility between the System and any ISP or any versions of operating systems, hardware, browsers or other products not specifically approved by Pearson for Customer’s use with the System. Pearson will make written System requirements available to Customer at Customer’s request. Customer is responsible for providing the necessary space, environment and equipment for the System, all necessary electrical, system and telecommunications interconnections, and access to the Internet.
10. Third Party Software License Terms. The System includes certain third party software. In some cases, the provision of such third party software to Customer is subject to additional terms and conditions, which may be set forth on a schedule hereto, or within the System or the System Documentation, and for such software, such other terms and conditions shall apply in addition to the terms and conditions of this Agreement. However, in no event shall any such third party software terms substantially conflict with this Agreement or deprive Customer of the intended benefits of this Agreement.
11. Term. The initial subscription term for Customer’s access to the System shall begin on the Service Effective Date, and shall continue for a period consistent with the Subscription Fees paid to Pearson. If either party notifies the other of its intent not to renew this Agreement for a subsequent term prior to the end of the then-current term, then this Agreement shall end at the expiration of the then-current term. Otherwise, this Agreement will be renewed so long as Pearson receives the applicable fees for the renewal term prior to the expiration of Customer’s then-current term; provided, however, if Customer remits such fees to Pearson subsequent to the expiration of the initial or any renewal term, Pearson may, in its sole discretion, maintain this Agreement in effect. The fees for any such renewal term shall be at Pearson’s then-current rates. In no event shall this Agreement be automatically renewed against the wishes of Customer; Customer is under no obligation to pay a renewal invoice should Customer choose not to renew this Agreement.
12. Termination and Remedies.
12.1 Termination. Pearson shall have the right to suspend Pearson’s performance and Customer’s access to the System under this Agreement in the event Customer is in breach of any of its obligations under this Agreement. In addition, either party shall have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that Pearson shall have the right to terminate this Agreement immediately upon written notice in the event Customer breaches any of its obligations under Sections 4 or 5.
12.2 Effects of Termination. In the event of any termination of this Agreement, Customer shall not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. The provisions of Sections 5, 8, 12.3, 13, 14 and 15 shall survive termination of this Agreement.
12.3 Return on Termination. Customer’s access to and use of the System shall immediately cease upon the termination of this Agreement for any reason. After termination, Customer will cease to use any System software applications and Documentation in its possession, and upon Pearson’s request Customer will certify that it has returned or destroyed all copies of same in its possession.
13. DISCLAIMER OF WARRANTIES. PEARSON WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE PERFORMANCE OF THE SYSTEM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. HOWEVER, Pearson AND ITS LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, ANY EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. NEITHER Pearson NOR ITS LICENSORS WARRANT THAT THE SYSTEM OR CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. NEITHER Pearson NOR ITS LICENSORS CAN CONTROL THE FLOW OF DATA TO OR FROM Pearson’s NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT USERS’ AND/OR Pearson’s CONNECTIONS TO THE INTERNET.
14. Liability, Indemnification
14.1 LIMITATION OF LIABILITY. NEITHER Pearson NOR ITS LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES, OR FOR ANY LOST BUSINESS, LOST REVENUE, LOST PROFITS OR LOST SAVINGS ARISING OUT OF THIS AGREEMENT, OR OUT OF CUSTOMER’S USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF ADVISED OF SUCH DAMAGES OR LOSS OR THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT SHALL Pearson’s OR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY CUSTOMER TO Pearson FOR THE SYSTEM, OR OTHER ITEM OR SERVICE ON WHICH THE CLAIM IS BASED, DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE LOSS OR INJURY.
14.2 Indemnification. Customer shall indemnify and hold harmless Pearson and its licensors from and against any loss, damage, liability, claim or expense resulting from third party claims that any information or content (including any link to any website) input into, posted to or maintained on the System by Customer or its Users or by Pearson at Customer’s request or direction (collectively, “Customer Content”) infringes or violates any patents, copyrights or other intellectual property rights of a third party, or that such Customer Content is indecent, obscene, libelous, slanderous or illegal.
General .
15.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA.
15.2 Limitation on Actions. Customer may bring no action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has arisen.
15.3 Assignment; Subcontracting. Customer may not assign, delegate, or otherwise transfer all or any portion of this Agreement or its rights and obligations hereunder without the prior, written consent of Pearson. Customer acknowledges that Pearson may subcontract portions of the support services or professional services to be provided by Pearson hereunder to third parties certified by Pearson to provide such services.
15.4 Waiver; Severability. No waiver of any provisions of this Agreement by either party shall be deemed to be an ongoing waiver of such provisions or any rights related thereto unless the parties otherwise expressly agree in writing. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be enforced to the maximum extent possible.
15.5 Force Majeure. Neither party shall be held liable to the other party for failure of performance where such failure is caused by supervening conditions beyond that party’s control, including acts of God, civil disturbance, strikes, or labor disputes.
15.6 Notices. Any and all notices shall be sent by United States First Class or Certified Mail or by a courier service furnishing proof of delivery (postage and delivery prepaid). In the case of notices to Pearson, such notices shall be sent to: NCS Pearson, Inc., Attn.: Educational Assessment, Legal Department, 19500 Bulverde Road, San Antonio, Texas 78259. In the case of notices to Customer, such notices shall be sent to Pearson’s address of record for Customer. Either party may change its notice address by notifying the other in like manner.
15.7 Terms of Agreement. Customer agrees that the terms of this Agreement, including all pricing for Pearson products and services, are the confidential information of Pearson and shall be kept confidential by Customer and not disclosed to any third party without the prior written consent of Pearson; provided, however, that Pearson’s consent shall not be required in the event that disclosure of the terms of this Agreement is required by law (e.g., public records acts or similar statutes that may be applicable to Customer).
15.8 Total Agreement. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all previous agreements, proposals, negotiations, and correspondence between them, whether oral or written, related to this matter. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Customer with respect to the System or any related products or services provided. This Agreement shall not be modified, varied, waived or otherwise changed without the mutual, written agreement of both parties. Headings used in this Agreement are for reference only and are not interpretive.
The following supplemental terms and conditions (“EOC Terms”) apply to all subscriptions to End-of-Course Array and related services ordered from NCS Pearson, Inc. (Pearson) and the use of such products and services by the ordering party (Subscriber).
Limited Use and License
Subscriber is granted a nonexclusive, nontransferable, revocable, limited, subscription-based license to access and use End-of-Course Array and the End-of-Course Array website (Site) under one or more Orders submitted by Subscriber and accepted by Pearson. Access to End-of-Course Array and the Site is limited to Subscriber’s authorized employees and students (Users). If Subscriber exceeds the maximum number of Student Users indicated on its End-of-Course Array order(s), Pearson reserves the right to invoice Subscriber for such excess Student User count at Pearson’s then-current catalog price. A “Student User” is defined as a student who has been issued an access ID and password by Subscriber and has commenced taking at least one End-of-Course Array assessment. Additional Student User count may be added for the remainder of a subscription term at Pearson’s then-current catalog price by submitting a further order to Pearson’s Customer Service Department.
Subscriber shall not sublicense, rent, lend, transfer, lease, sell or provide others with access to the Site or End-of-Course Array online services or related materials. Subscriber shall not (and shall not permit others to) disassemble, decompile or otherwise derive source code from End-of-Course Array or the platform on which it resides; reverse engineer or modify or prepare derivative works of End-of-Course Array or the platform on which it resides in any manner that infringes the intellectual property or other rights of any party.
Except for the downloading and copying of End-of-Course Array assessment materials for paper and pencil administration and the printing of score reports by teachers of Student Users, Subscriber and Users are expressly prohibited from copying, duplication or downloading End-of-Course Array services or materials in any manner.
Legal Compliance
Subscriber is responsible for ensuring that its employees and students use End-of-Course Array, the Site, and the student data available on the Site in a manner consistent with all applicable laws and regulations, including without limitation, the Family Educational Rights and Privacy Act.
Set-up, Infrastructure Requirements
Pearson will create Subscriber’s initial User accounts, including its access ID and password. Subscriber is responsible for maintaining student and user database thereafter. Users may purchase set-up support at Pearson’s then-current catalog price for updating database after initial setup. Subscriber is responsible for ensuring that it meets the minimum hardware, software and internet bandwidth requirements for End-of-Course Array as specified by Pearson.
Support
Pearson will provide basic support for the use of End-of-Course Array Monday-Friday 8:00 a.m.- 5:00 p.m. Central Standard Time, excluding holidays. Subscribers may contact eSupport by telephone at 1-800-586-1107 or by email at eSupport@pearson.com. Enhanced support services may be purchased at Pearson’s then-current catalog price.
Use of Data
Subscriber authorizes Pearson to use anonymous assessment results (item-level data) from the Subscriber’s use of End-of-Course Array for research purposes. Subscriber must provide Pearson with written notification if it does not wish to allow Pearson to make such use of assessment data.
Online or Paper-Based Assessment
End-of-Course Array supports both online and paper-based assessment administration. Should Subscriber choose to use paper-based assessment administrations, Subscriber will be responsible for all additional costs associated with printing and scanning the assessment materials, except for the custom scanning software required to scan completed assessments back into End-of-Course Array, which is available for download at an additional charge.
Ownership
Subscriber acknowledges that all right, title and interest in the Site and End-of-Course Array content, including any related software and all copies, derivative works thereof, and all modifications, enhancements, upgrades, and new versions created by anyone, remains in Pearson and its vendors.
Security
Subscriber agrees that it will take all necessary precautions to safeguard its Users’ IDs and passwords provided by Pearson and created by Subscriber to limit access to and use of End-of-Course Array only by authorized administrators, teachers and students.
Service Marks and Trademarks
End-of-Course Array is a trademark of Pearson. Other trademarks appearing on the Site are trademarks of their respective owners. Except as permitted in writing, Subscriber shall not display, disparage, dilute or taint Pearson’s trademarks and service marks or use any confusingly similar marks or use Pearson’s marks in such a way that would misrepresent the proper owner of such marks. Any permitted use of Pearson’s trademarks or service marks shall inure to the benefit of Pearson.
Student Identifying Data
Subscriber is responsible for obtaining parental consent, if any is required under applicable laws, to provide student identifying data to Pearson for the purpose of administering, scoring, and reporting End-of-Course Array assessments. Pearson will use and protect the confidentiality of all such data in accordance with applicable laws.
Scheduled System Outages
Pearson will notify Subscriber’s system administrator in advance of any scheduled End-of-Course Array downtime for maintenance or updates and the anticipated duration of any such downtime.
Notice
Pearson may give notice to Subscriber by means of a general notice on the Site, via electronic mail to Subscriber’s email address on record, or by written communication sent by first class mail to the address provided in Subscriber’s billing information. Subscriber agrees that Pearson may send notice by electronic mail as an alternative to conventional mail.
Subscriber may give notice to Pearson and such notice shall be deemed given when received by Pearson at any time by any of the following:
Privacy Policy
Subscriber’s use of the Site is subject to the privacy policy posted on this website.
Payment, No Discounts
Subscriber agrees to pay Pearson the applicable fees for the access and services provided hereunder within thirty (30) days of receipt of an invoice from Pearson.
Renewal
Subscriber may renew a subscription to End-of-Course Array by providing Pearson with a purchase order. Upon renewal, Pearson will invoice and Subscriber will pay the renewal fees at Pearson’s then-current catalog prices for such services and/or materials.
Requests for Permission
These EOC Terms set forth Subscriber’s entire right to copy and use End-of-Course Array related materials. Use within the scope of these EOC Terms does not require any further permission from Pearson. Any other use, such as, without limitation, use for commercial purposes or duplication or distribution, requires the prior written consent of Pearson, which may be granted or denied within Pearson’s sole discretion.
Termination of Service
Subscriber may terminate its subscription to use End-of-Course Array and the Site at any time by notice to Pearson as stated herein. Unless such termination is for breach of a Pearson warranty, Subscriber shall not be entitled to any refund of subscription fees due or paid.
Pearson may at any time and in its sole discretion cancel Subscriber’s subscription or any User’s access to End-of-Course Array and the Site, without notice, for violation of any of these EOC Terms or any other policies or guidelines that Pearson has posted on this website.
Subscriber’s access to the Site will terminate immediately after expiration of the subscription term.
Warranties
Pearson warrants only that it has the right to license Subscriber and Subscriber’s Users to use End-of-Course Array and the Site in accordance with these EOC Terms for the term of Subscriber’s subscription. PEARSON EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY OR CONTENT OF ANY INFORMATION, PRODUCTS, SERVICES OR THE SITE; AND (2) ANY WARRANTY OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability
PEARSON’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO A BREACH OF THE FOREGOING WARRANTIES SHALL BE LIMITED TO THE RETURN OF A PRO RATA PORTION OF THE SUBSCRIPTION FEES PAID BASED ON THE UNEXPIRED PORTION OF THE SUBSCRIPTION TERM. PEARSON’S LIABILITY FOR ANY OTHER BREACH, ACT OR OMISSION OF PEARSON SHALL BE LIMITED TO THE UNREFUNDED SUBSCRIPTION FEES PAID FOR THE THEN-CURRENT SUBSCRIPTION TERM. NEITHER PEARSON NOR ANY OF ITS AGENTS, AFFILIATES OR CONTENT PROVIDERS SHALL BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF END-OF-COURSE ARRAY CONTENT AND SERVICES OR OTHERWISE.THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF USER ASSESSMENT RECORDS, WHETHER ASSERTED AS A BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS BEHAVIOR, OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY.
Choice of Law
These EOC Terms are governed by the laws of the State of Minnesota, and any action arising out of or relating to these EOC Terms shall be filed only in state or federal courts located in Minnesota. Subscriber hereby consents and submits to the personal jurisdiction of such courts for the purpose of litigating any such action.
Survival
The provisions of the sections herein titled Payment, Warranties, Limitation of Liability, Indemnification and Choice of Law shall survive any termination or expiration of Subscriber’s subscription.
Additional Terms & Conditions
The purchase of a subscription to use End-of-Course Array is also subject to the Terms and Conditions of Use stated in Pearson’s product catalog and referenced on the Pearson website. In the event of any conflicts, these EOC Terms take precedence over those Terms and Conditions of Use.
Force Majeure
Neither party shall be liable for any loss or damage suffered by the other party, directly or indirectly, as a result of the first party’s failure to perform, or delay in performing, any of its obligations contained in this document (other than the payment of money), where such failure or delay is caused by circumstances beyond the first party’s control or which make performance commercially impracticable, including but not limited to fire, flood, storm or other natural disaster, explosion, accident, war, riot, civil disorder, governmental regulations or restrictions of any kind or any acts of any government, judicial action, power failure, acts of God or other natural circumstances.
Complete Agreement, Modification, Severability
These EOC Terms contain the entire agreement between Subscriber and Pearson with respect to the products and services ordered by Subscriber, except for any Subscriber-specific services described in individual Statements of Work agreed to and signed by Pearson and Subscriber from time to time. In the event of any conflict between the Statement of Work and these EOC Terms, the provisions of the Statement of Work will govern. These Terms may not be modified or expanded except by a writing signed by an authorized representative of Pearson. If any provision of these EOC Terms is held invalid or unenforceable, the remainder shall continue in full force and effect, provided that, if any limitation on the grant to Subscriber of any right herein is held invalid or unenforceable, such right shall immediately terminate.
In lieu of the standard catalog Terms and Conditions of Use, the following will apply to the indicated product:
1. Definitions. NCS Pearson, Inc. is referred to herein as “Pearson.” The school district or other entity licensing the System from Pearson is referred to herein as the “Customer.” In addition, the following terms when capitalized herein shall have these agreed-upon meanings:
1.1 “Authorized Site” shall mean a school or other Customer site designated in writing by Pearson, in Pearson’s price quotation on which Customer’s order was based or in Pearson written acknowledgment of Customer’s order, as authorized to provide Users access to the System. 1.2 “Customer Data” shall mean and include all administrative, student, teacher, and other related information belonging to Customer. 1.3 “Documentation” shall mean all written user information, workbooks, course materials, and instructional manuals and guides, whether in electronic, written, or other format, delivered by Pearson to Customer with respect to the System. 1.4 “Service Effective Date” shall mean the date that the System is initially available for Customer to access and use (whether or not Customer is actively using the System). 1.5 “Subscription Fee” shall mean the amount to be paid by Customer for the license to use and access the System for a stated period. The Subscription Fee does not, however, include any one-time set-up or installation fees, or any fees or charges payable by Customer to Pearson for any training, project management, data load, implementation, or other services. 1.6 “System” shall mean all components of the Pearson Benchmark product provided to Customer pursuant to this Agreement. This includes: (a) all System software applications, administrative and management programs, instructional and curriculum materials, and other content made available to Users via the Internet through the URL(s) assigned to Customer by Pearson; (b) any locally deployed software applications and administrative and management system programs that may be provided to Customer by Pearson as part of the System; and (c) all Documentation. All System features, modules, and changes to the System provided or made available hereunder, including all future System enhancements, will be considered part of the System and are subject to, and will be governed by, the terms of this Agreement. 1.7 “Users” shall mean those individuals authorized by Customer or an Authorized Site to access and/or use the System. Users must be limited to those individuals having an educational or administrative relationship to Customer (e.g., students, parents, teachers, or administrators).
1.4 “Service Effective Date” shall mean the date that the System is initially available for Customer to access and use (whether or not Customer is actively using the System).
1.6 “System” shall mean all components of the Pearson Benchmark product provided to Customer pursuant to this Agreement. This includes: (a) all System software applications, administrative and management programs, instructional and curriculum materials, and other content made available to Users via the Internet through the URL(s) assigned to Customer by Pearson; (b) any locally deployed software applications and administrative and management system programs that may be provided to Customer by Pearson as part of the System; and (c) all Documentation. All System features, modules, and changes to the System provided or made available hereunder, including all future System enhancements, will be considered part of the System and are subject to, and will be governed by, the terms of this Agreement.
2. Provision of and Access to the System. Pearson agrees to provide Customer access to and use of the System. Portions of the System will be located on Pearson’s host servers and made available to Customer via the Internet; provided, however, that certain limited portions of the System may be delivered on CD-ROM or via other media. Pearson may, in its discretion, from time to time, as determined by Pearson, add new content to the System, limit, modify or discontinue existing content made available with the System, or incorporate revisions into the System as may be deemed appropriate by Pearson.
4.1 License Grant. Subject to the terms and conditions of this Agreement, Pearson grants to Customer a limited, personal, non-exclusive, non-transferable license to use and access the System for educational, instructional, and related administrative purposes. Customer shall grant access to the System only to Users at Authorized Sites and only for such purposes in accordance with the terms of this Agreement. If, at any time, Pearson permits Customer to increase the number of Authorized Sites that may access the System, such additional access shall also be subject to the terms and conditions of this Agreement. 4.2 Access; Passwords; Unauthorized Use. Customer will control and manage access to the System and to all Customer Data stored on the host Pearson servers. Pearson shall provide Customer with the ability to generate passwords and/or user identifications, which shall be used by Customer to provide access to the System. Customer will instruct its Users as to the importance of maintaining the confidentiality of passwords and/or user identifications. Customer acknowledges that Customer’s data security may be compromised if Users do not follow all applicable security policies and procedures and take other appropriate steps to maintain the security of the System, including, without limitation, maintaining the confidentiality of User names and passwords, frequent changing of passwords, and maintaining appropriate internal controls to monitor access to and use of the System. Customer will promptly report any security concerns to Pearson through Pearson’s technical support line. 4.3 Copies. Customer shall have the right to make copies of Documentation only as necessary to support the use of the System as set out in this Agreement. Customer shall affix all copyright or other proprietary rights notices contained on the delivered Documentation on all copies. Customer shall not, and shall not allow any other person or entity to, reproduce, copy, repost, download or distribute the System or any portions of the System, except as permitted by this Agreement, without the express written consent of Pearson.
4.1 License Grant. Subject to the terms and conditions of this Agreement, Pearson grants to Customer a limited, personal, non-exclusive, non-transferable license to use and access the System for educational, instructional, and related administrative purposes. Customer shall grant access to the System only to Users at Authorized Sites and only for such purposes in accordance with the terms of this Agreement. If, at any time, Pearson permits Customer to increase the number of Authorized Sites that may access the System, such additional access shall also be subject to the terms and conditions of this Agreement.
4.2 Access; Passwords; Unauthorized Use. Customer will control and manage access to the System and to all Customer Data stored on the host Pearson servers. Pearson shall provide Customer with the ability to generate passwords and/or user identifications, which shall be used by Customer to provide access to the System. Customer will instruct its Users as to the importance of maintaining the confidentiality of passwords and/or user identifications. Customer acknowledges that Customer’s data security may be compromised if Users do not follow all applicable security policies and procedures and take other appropriate steps to maintain the security of the System, including, without limitation, maintaining the confidentiality of User names and passwords, frequent changing of passwords, and maintaining appropriate internal controls to monitor access to and use of the System. Customer will promptly report any security concerns to Pearson through Pearson’s technical support line.
4.3 Copies. Customer shall have the right to make copies of Documentation only as necessary to support the use of the System as set out in this Agreement. Customer shall affix all copyright or other proprietary rights notices contained on the delivered Documentation on all copies. Customer shall not, and shall not allow any other person or entity to, reproduce, copy, repost, download or distribute the System or any portions of the System, except as permitted by this Agreement, without the express written consent of Pearson.
5.1 Rights in the System. Customer acknowledges and agrees that all right, title and interest in and to the System and related intellectual property, including all copyright, trademark, trade secret and patent rights, belong solely to Pearson or its licensors. Customer agrees to keep the System and related intellectual property confidential and to utilize reasonable efforts to protect such materials from unauthorized disclosure or use. Customer will not attempt to or allow others to (i) modify, adapt, decompile, decrypt, disassemble, extract or reverse-engineer any part of the System provided hereunder; (ii) remove any proprietary, copyright, trade secret or other warning legend from the System provided hereunder; or (iii) furnish or distribute any portion of the System into any country in violation of national export control regulations. Customer will notify Pearson of any violations of Pearson’s proprietary rights of which it becomes aware. 5.2 Rights in Customer Data. Pearson acknowledges and agrees that all Customer Data is and shall remain the property of Customer. Pearson makes no claims as to ownership of any Customer Data. Pearson agrees to exercise commercially reasonable efforts to maintain as confidential and use solely as necessary for purposes of performing this Agreement all Customer Data that is disclosed to Pearson or is stored on servers hosting the System. Such commercially reasonable efforts shall include the use of commercially available encryption technology for transmission of Customer Data and the use of commercially available password protection technology within the System; however, Customer acknowledges that user identifications and passwords to access the Customer Data will be controlled and managed by the Customer and not by Pearson.
5.2 Rights in Customer Data. Pearson acknowledges and agrees that all Customer Data is and shall remain the property of Customer. Pearson makes no claims as to ownership of any Customer Data. Pearson agrees to exercise commercially reasonable efforts to maintain as confidential and use solely as necessary for purposes of performing this Agreement all Customer Data that is disclosed to Pearson or is stored on servers hosting the System. Such commercially reasonable efforts shall include the use of commercially available encryption technology for transmission of Customer Data and the use of commercially available password protection technology within the System; however, Customer acknowledges that user identifications and passwords to access the Customer Data will be controlled and managed by the Customer and not by Pearson.
6.1 Support. During the term of this Agreement, Pearson will provide technical support for the System via telephone or electronic mail, on weekdays during Pearson’s normal business hours, excluding holidays observed by Pearson. Customer acknowledges that Pearson’s provision of technical support does not extend to all Users of the System; rather, all requests for technical support from Pearson shall be made by persons employed by Customer who have been appropriately trained and whom Customer has designated as its Site Administrators for the System. Customer’s other Users must direct their requests for such support to Customer’s designated Site Administrators. Pearson will provide technical support to Customer’s Site Administrators to assist Customer in resolving errors or “bugs” in the System and to answer technical questions that affect the functionality of and Customer’s ability to use the System. Technical support does not include assistance with curriculum planning or interpretation of data. Customer acknowledges that, in order to facilitate Pearson’s provision of technical support to Customer with respect to the use of the System, Pearson may require access to Customer Data and may require that the Customer representative seeking technical support supply Pearson with such representative’s password in order to enable Pearson to access such Customer Data. In such event, Customer shall be responsible for ensuring that such Customer representative modifies his or her password promptly after the provision of such technical support. 6.2 Services. In addition to support services as described in Section 6.1, Pearson may provide certain other professional services pursuant to the following terms: (a) Initial Implementation Services. For most customers, the services ordered will include a standard implementation package. For a flat fee (determined based on Customer’s enrollment), Customer will be entitled to the benefits of this services package, which include setting up the System for Customer’s use and defined quantities of training, consulting, and data load. Specific descriptions of the applicable services to which Customer will be entitled as part of this standard package are available upon request. (b) Additional Services. Should Customer desire or require professional services other than, or in addition to, those included in the standard implementation package (e.g., enhanced training or additional consulting, or the loading of data into the System beyond the data load that is contemplated as part of the standard service package), then such services are available at an additional cost, at Pearson’s then-current rates for same, or at such rates as may otherwise be agreed to in writing between Customer and Pearson. (c) General Terms Applicable to All Services. For both any standard implementation package and any additional services that Customer may order, Pearson’s quoted rates do not include travel expenses. Customer shall also pay Pearson for such reasonable travel expenses (including transportation, lodging and meals) as may be incurred in the performance of services. Customer acknowledges that certain professional services may, at Pearson’s option, be performed on Customer's premises or remotely, via telephone, E-mail, or other forms of communication. For work to be performed on Customer's premises, Customer agrees to provide, at Customer's expense, appropriate work space and other on-site accommodations (e.g., access to utilities) necessary to enable Pearson to perform such work. Pearson reserves the right to require a purchase order or equivalent commitment to pay, or prepayment, prior to performing any services.
6.1 Support. During the term of this Agreement, Pearson will provide technical support for the System via telephone or electronic mail, on weekdays during Pearson’s normal business hours, excluding holidays observed by Pearson. Customer acknowledges that Pearson’s provision of technical support does not extend to all Users of the System; rather, all requests for technical support from Pearson shall be made by persons employed by Customer who have been appropriately trained and whom Customer has designated as its Site Administrators for the System. Customer’s other Users must direct their requests for such support to Customer’s designated Site Administrators. Pearson will provide technical support to Customer’s Site Administrators to assist Customer in resolving errors or “bugs” in the System and to answer technical questions that affect the functionality of and Customer’s ability to use the System. Technical support does not include assistance with curriculum planning or interpretation of data. Customer acknowledges that, in order to facilitate Pearson’s provision of technical support to Customer with respect to the use of the System, Pearson may require access to Customer Data and may require that the Customer representative seeking technical support supply Pearson with such representative’s password in order to enable Pearson to access such Customer Data. In such event, Customer shall be responsible for ensuring that such Customer representative modifies his or her password promptly after the provision of such technical support.
(a) Initial Implementation Services. For most customers, the services ordered will include a standard implementation package. For a flat fee (determined based on Customer’s enrollment), Customer will be entitled to the benefits of this services package, which include setting up the System for Customer’s use and defined quantities of training, consulting, and data load. Specific descriptions of the applicable services to which Customer will be entitled as part of this standard package are available upon request.
(b) Additional Services. Should Customer desire or require professional services other than, or in addition to, those included in the standard implementation package (e.g., enhanced training or additional consulting, or the loading of data into the System beyond the data load that is contemplated as part of the standard service package), then such services are available at an additional cost, at Pearson’s then-current rates for same, or at such rates as may otherwise be agreed to in writing between Customer and Pearson.
7.1 Payment; Taxes. Customer agrees to pay Pearson all fees charged under this Agreement, as well as all applicable taxes (exclusive of taxes based on Pearson’s net income) in accordance with Pearson’s invoice terms. Customer will provide Pearson with proof of any claimed tax exemption, and will be responsible for the payment of any applicable penalties, taxes, and costs which arise if the tax exemption proves inapplicable. Any sums not paid by the due date specified on the invoice will be subject to interest on the unpaid amount at the lesser of 1.5% per month (18% annually) or the maximum rate allowed by law. 7.2 Invoicing. The initial Subscription Fees and any associated professional services fees purchased will be billed in advance upon Pearson’s processing of Customer’s order for the System. Fees for professional services that are purchased subsequently will be billed as rendered. Prior to the expiration of the initial subscription term and any renewal term, Pearson will invoice Customer for the applicable renewal Subscription Fees for all Authorized Sites for the subsequent one (1) year period. 7.3 Suspension for Non-Payment. In addition to any other rights of Pearson under this Agreement, Pearson shall have the right to immediately suspend Customer’s access to the System and the performance of any other obligations of Pearson hereunder in the event that Customer breaches its payment obligations set forth in this Section 7, until such breach is cured. 7.4 Prepaid Services Fees. In the event that Customer purchases any prepaid services package, all services must be scheduled and delivered within the standard term of that package as defined by Pearson (or twelve (12) months if not otherwise stated). In the event that Customer pays in advance for any other professional services that would ordinarily be billed as rendered, all services must be scheduled and delivered within twelve (12) months of such payment, unless otherwise agreed in writing by Pearson; any portion of any such prepaid services that has not been used by Customer toward services actually rendered within such twelve (12) month period shall be forfeited.
7.4 Prepaid Services Fees. In the event that Customer purchases any prepaid services package, all services must be scheduled and delivered within the standard term of that package as defined by Pearson (or twelve (12) months if not otherwise stated). In the event that Customer pays in advance for any other professional services that would ordinarily be billed as rendered, all services must be scheduled and delivered within twelve (12) months of such payment, unless otherwise agreed in writing by Pearson; any portion of any such prepaid services that has not been used by Customer toward services actually rendered within such twelve (12) month period shall be forfeited.
12.1 Termination. Pearson shall have the right to suspend Pearson’s performance and Customer’s access to the System under this Agreement in the event Customer is in breach of any of its obligations under this Agreement. In addition, either party shall have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that Pearson shall have the right to terminate this Agreement immediately upon written notice in the event Customer breaches any of its obligations under Sections 4 or 5. 12.2 Effects of Termination. In the event of any termination of this Agreement, Customer shall not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. The provisions of Sections 5, 8, 12.3, 13, 14 and 15 shall survive termination of this Agreement. 12.3 Return on Termination. Customer’s access to and use of the System shall immediately cease upon the termination of this Agreement for any reason. After termination, Customer will cease to use any System software applications and Documentation in its possession, and upon Pearson’s request Customer will certify that it has returned or destroyed all copies of same in its possession.
14. LIMITATION OF LIABILITY. NEITHER Pearson NOR ITS LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES, OR FOR ANY LOST BUSINESS, LOST REVENUE, LOST PROFITS OR LOST SAVINGS ARISING OUT OF THIS AGREEMENT, OR OUT OF CUSTOMER’S USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF ADVISED OF SUCH DAMAGES OR LOSS OR THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT SHALL Pearson’s OR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY CUSTOMER TO Pearson FOR THE SYSTEM, OR OTHER ITEM OR SERVICE ON WHICH THE CLAIM IS BASED, DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE LOSS OR INJURY.
15. General.
15.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA. 15.2 Limitation on Actions. Customer may bring no action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has arisen. 15.3 Assignment; Subcontracting. Customer may not assign, delegate, or otherwise transfer all or any portion of this Agreement or its rights and obligations hereunder without the prior, written consent of Pearson. Customer acknowledges that Pearson may subcontract portions of the support services or professional services to be provided by Pearson hereunder to third parties certified by Pearson to provide such services. 15.4 Waiver; Severability. No waiver of any provisions of this Agreement by either party shall be deemed to be an ongoing waiver of such provisions or any rights related thereto unless the parties otherwise expressly agree in writing. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be enforced to the maximum extent possible. 15.5 Force Majeure. Neither party shall be held liable to the other party for failure of performance where such failure is caused by supervening conditions beyond that party’s control, including acts of God, civil disturbance, strikes, or labor disputes. 15.6 Notices. Any and all notices shall be sent by United States First Class or Certified Mail or by a courier service furnishing proof of delivery (postage and delivery prepaid). In the case of notices to Pearson, such notices shall be sent to: NCS Pearson, Inc., Attn.: Contracts Department, 3075 W. Ray Road, Suite 200, Mail Stop 315, Chandler, AZ 85226. In the case of notices to Customer, such notices shall be sent to Pearson’s address of record for Customer. Either party may change its notice address by notifying the other in like manner. 15.7 Terms of Agreement. Customer agrees that the terms of this Agreement, including all pricing for Pearson products and services, are the confidential information of Pearson and shall be kept confidential by Customer and not disclosed to any third party without the prior written consent of Pearson; provided, however, that Pearson’s consent shall not be required in the event that disclosure of the terms of this Agreement is required by law (e.g., public records acts or similar statutes that may be applicable to Customer). 15.8 Total Agreement. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all previous agreements, proposals, negotiations, and correspondence between them, whether oral or written, related to this matter. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Customer with respect to the System or any related products or services provided. This Agreement shall not be modified, varied, waived or otherwise changed without the mutual, written agreement of both parties. Headings used in this Agreement are for reference only and are not interpretive.
15.6 Notices. Any and all notices shall be sent by United States First Class or Certified Mail or by a courier service furnishing proof of delivery (postage and delivery prepaid). In the case of notices to Pearson, such notices shall be sent to: NCS Pearson, Inc., Attn.: Contracts Department, 3075 W. Ray Road, Suite 200, Mail Stop 315, Chandler, AZ 85226. In the case of notices to Customer, such notices shall be sent to Pearson’s address of record for Customer. Either party may change its notice address by notifying the other in like manner.
1. Definitions. NCS Pearson, Inc. is referred to herein as “Pearson.” The school, school district or other entity licensing the System from Pearson is referred to herein as “Customer.” In addition, the following definitions shall apply:
1.1 “Authorized Site” shall mean a school or other Customer site designated in writing by Pearson, in Pearson’s written acknowledgment of Customer’s order or otherwise, as authorized to provide Users access to the System. 1.2 “Customer Data” shall mean and include all administrative, student, teacher, and other related information belonging to Customer. 1.3 “Documentation” shall mean all written user information, workbooks, course materials, and instructional manuals and guides, whether in electronic, written, or other format, delivered by Pearson to Customer with respect to the System. 1.4 “Service Effective Date” shall mean the date that the System is initially available for Customer to access and use (whether or not Customer is actively using the System). 1.5 “Subscription Fee” shall mean the amount to be paid by Customer for the license to use and access the System for a stated period. The Subscription Fee does not, however, include any one-time set-up or installation fees, or any fees or charges payable by Customer to Pearson for any training, project management, data load, implementation, or other services. 1.6 “System” shall mean all components of the Pearson Inform product provided to Customer hereunder. This includes: (a) all System software applications, administrative and management programs, instructional and curriculum materials, and other content made available to Users via the Internet through the URL(s) assigned to Customer by Pearson; (b) any locally deployed software applications and administrative and management system programs that may be provided to Customer by Pearson as part of the System; and (c) all Documentation. All System features, modules, and changes to the System provided or made available hereunder, including all future System enhancements, will be considered part of the System and are subject to, and will be governed by, the terms of this Agreement. 1.7 “Users” shall mean those individuals authorized by Customer or an Authorized Site to access and/or use the System. Users must be limited to those individuals having an educational or administrative relationship to Customer (e.g., students, parents, teachers, or administrators).
1.1 “Authorized Site” shall mean a school or other Customer site designated in writing by Pearson, in Pearson’s written acknowledgment of Customer’s order or otherwise, as authorized to provide Users access to the System.
1.6 “System” shall mean all components of the Pearson Inform product provided to Customer hereunder. This includes: (a) all System software applications, administrative and management programs, instructional and curriculum materials, and other content made available to Users via the Internet through the URL(s) assigned to Customer by Pearson; (b) any locally deployed software applications and administrative and management system programs that may be provided to Customer by Pearson as part of the System; and (c) all Documentation. All System features, modules, and changes to the System provided or made available hereunder, including all future System enhancements, will be considered part of the System and are subject to, and will be governed by, the terms of this Agreement.
2. Provision of and Access to the System. Pearson agrees to provide Customer access to and use of the System during the term of this Agreement. Portions of the System will be located on Pearson’s host servers and made available to Customer via the Internet; provided, however, that certain limited portions of the System may be delivered on CD-ROM or via other media. Pearson may, in its discretion, from time to time, as determined by Pearson, add new content to the System, limit, modify or discontinue existing content made available with the System, or incorporate revisions into the System as may be deemed appropriate by Pearson.
3. System Availability. Pearson shall make the System generally available to Customer during the term of this Agreement; provided, however, that Customer acknowledges that Pearson may take the System down from time to time to perform maintenance and/or upgrades. In addition, Customer acknowledges that from time to time the System may be inaccessible or inoperable due to System errors or causes beyond the control of Pearson or which are not reasonably foreseeable by Pearson, including, but not limited to: the interruption or failure of telecommunication or digital transmission links; hostile network attacks; network congestion; or other failures (collectively “Downtime”). Pearson shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the System caused by Downtime, whether scheduled or not.
4 License and Use.
5.1 Rights in the System. Customer acknowledges and agrees that all right, title and interest in and to the System and related intellectual property, including all copyright, trademark, trade secret and patent rights, belong solely to Pearson or its licensors. Customer agrees to keep the System and related intellectual property confidential and to utilize reasonable efforts to protect such materials from unauthorized disclosure or use. Customer will not attempt to or allow others to (i) modify, adapt, decompile, decrypt, disassemble, extract or reverse-engineer any part of the System provided hereunder; (ii) remove any proprietary, copyright, trade secret or other warning legend from the System provided hereunder; or (iii) furnish or distribute any portion of the System into any country in violation of national export control regulations. Customer will notify Pearson of any violation(s) of Pearson’s proprietary rights of which it becomes aware. 5.2 Rights in Customer Data. Pearson acknowledges and agrees that all Customer Data is and shall remain the property of Customer. Pearson makes no claims as to ownership of any Customer Data. Pearson agrees to exercise commercially reasonable efforts to maintain as confidential and use solely as necessary for purposes of performing this Agreement all Customer Data that is disclosed to Pearson or is stored on servers hosting the System. Such commercially reasonable efforts shall include the use of commercially available encryption technology for transmission of Customer Data and the use of commercially available password protection technology within the System; however, Customer acknowledges that user identifications and passwords to access the Customer Data will be controlled and managed by the Customer and not by Pearson.
5.1 Rights in the System. Customer acknowledges and agrees that all right, title and interest in and to the System and related intellectual property, including all copyright, trademark, trade secret and patent rights, belong solely to Pearson or its licensors. Customer agrees to keep the System and related intellectual property confidential and to utilize reasonable efforts to protect such materials from unauthorized disclosure or use. Customer will not attempt to or allow others to (i) modify, adapt, decompile, decrypt, disassemble, extract or reverse-engineer any part of the System provided hereunder; (ii) remove any proprietary, copyright, trade secret or other warning legend from the System provided hereunder; or (iii) furnish or distribute any portion of the System into any country in violation of national export control regulations. Customer will notify Pearson of any violation(s) of Pearson’s proprietary rights of which it becomes aware.
6.1 Support. During the term of this Agreement, Pearson will provide technical support for the System via telephone or electronic mail, on weekdays during Pearson’s normal business hours, excluding holidays observed by Pearson. Customer shall also have access to the online tools and information available at Pearson’s Customer Link website. Customer acknowledges that Pearson’s provision of technical support does not extend to all Users of the System; rather, all requests for technical support from Pearson shall be made by person(s) employed by Customer who have been appropriately trained and whom Customer has designated as its Site Administrators for the Systems. Customer’s other Users must direct their requests for such support to Customer’s designated Site Administrators. Pearson will provide technical support to Customer’s Site Administrators to assist Customer in resolving errors or “bugs” in the System and to answer technical questions that affect the functionality of and Customer’s ability to use the System. Technical support does not include assistance with curriculum planning or interpretation of data. 6.2 Services. In addition to support services as described herein, Pearson may provide certain other professional services pursuant to the following terms: (a) Initial Implementation Services. For most customers, the services ordered will include a standard implementation package. For a flat fee (determined based on Customer’s enrollment), Customer will be entitled to the benefits of this services package, which include setting up the System for Customer’s use and defined quantities of training, consulting, and data load. Specific descriptions of the applicable services to which Customer will be entitled as part of this standard package are available upon request. (b) Additional Services. Should Customer desire or require professional services other than, or in addition to, those included in the standard implementation package (e.g., enhanced training or additional consulting, or the loading of data into the System beyond the data load that is contemplated as part of the standard service package), then such services are available at an additional cost, at Pearson’s then-current rates for same, or at such rates as may otherwise be agreed to in writing between Customer and Pearson. (c) General Terms Applicable to All Services. For both any standard implementation package and any additional services that Customer may order, Pearson’s quoted rates do not include travel expenses. Customer shall also pay Pearson for such reasonable travel expenses (including transportation, lodging and meals) as may be incurred in the performance of services. Customer acknowledges that certain professional services may, at Pearson’s option, be performed on Customer’s premises or remotely, via telephone, E-mail, or other forms of communication. For work to be performed on Customer’s premises, Customer agrees to provide, at Customer’s expense, appropriate work space and other on-site accommodations (e.g., access to utilities) necessary to enable Pearson to perform such work. Pearson reserves the right to require a purchase order or equivalent commitment to pay, or prepayment, prior to performing any services.
6.1 Support. During the term of this Agreement, Pearson will provide technical support for the System via telephone or electronic mail, on weekdays during Pearson’s normal business hours, excluding holidays observed by Pearson. Customer shall also have access to the online tools and information available at Pearson’s Customer Link website. Customer acknowledges that Pearson’s provision of technical support does not extend to all Users of the System; rather, all requests for technical support from Pearson shall be made by person(s) employed by Customer who have been appropriately trained and whom Customer has designated as its Site Administrators for the Systems. Customer’s other Users must direct their requests for such support to Customer’s designated Site Administrators. Pearson will provide technical support to Customer’s Site Administrators to assist Customer in resolving errors or “bugs” in the System and to answer technical questions that affect the functionality of and Customer’s ability to use the System. Technical support does not include assistance with curriculum planning or interpretation of data.
6.2 Services. In addition to support services as described herein, Pearson may provide certain other professional services pursuant to the following terms:
(c) General Terms Applicable to All Services. For both any standard implementation package and any additional services that Customer may order, Pearson’s quoted rates do not include travel expenses. Customer shall also pay Pearson for such reasonable travel expenses (including transportation, lodging and meals) as may be incurred in the performance of services. Customer acknowledges that certain professional services may, at Pearson’s option, be performed on Customer’s premises or remotely, via telephone, E-mail, or other forms of communication. For work to be performed on Customer’s premises, Customer agrees to provide, at Customer’s expense, appropriate work space and other on-site accommodations (e.g., access to utilities) necessary to enable Pearson to perform such work. Pearson reserves the right to require a purchase order or equivalent commitment to pay, or prepayment, prior to performing any services.
11. Term. The initial subscription term for Customer’s access to the System shall begin on the Service Effective Date, and shall continue for a period consistent with the Subscription Fees paid to Pearson. If either party notifies the other of its intent not to renew this Agreement for a subsequent term prior to the end of the then-current term, then this Agreement shall end at the expiration of the then-current term. Otherwise, this Agreement will be renewed so long as Pearson receives the applicable fees for the renewal term prior to the expiration of Customer’s then-current term; provided, however, if Customer remits such fees to Pearson subsequent to the expiration of the initial or any renewal term, Pearson may, in its sole discretion, maintain this Agreement in effect. The fees for any such renewal term shall be at Pearson’s then-current rates.
12 Termination and Remedies.
12.1 Termination. Pearson shall have the right to suspend Pearson’s performance and Customer’s access to the System under this Agreement in the event Customer is in breach of any of its obligations under this Agreement. In addition, either party shall have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that Pearson shall have the right to terminate this Agreement immediately upon written notice in the event Customer breaches any of its obligations under Sections 4 or 5. 12.2 Effects of Termination. In the event of any termination of this Agreement, Customer shall not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. The provisions of Sections 5, 8, 12.3, 13, 14 and 15 shall survive termination of this Agreement.
13. DISCLAIMER OF WARRANTIES. PEARSON WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE PERFORMANCE OF THE SYSTEM IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. HOWEVER, PEARSON AND ITS LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, ANY EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. NEITHER PEARSON NOR ITS LICENSORS WARRANT THAT THE SYSTEM OR CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. NEITHER PEARSON NOR ITS LICENSORS CAN CONTROL THE FLOW OF DATA TO OR FROM PEARSON’S NETWORK AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT USERS’ AND/OR PEARSON’S CONNECTIONS TO THE INTERNET.
14. LIMITATION OF LIABILITY. NEITHER PEARSON NOR ITS LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES, OR FOR ANY LOST BUSINESS, LOST REVENUE, LOST PROFITS OR LOST SAVINGS ARISING OUT OF THIS AGREEMENT, OR OUT OF CUSTOMER’S USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF ADVISED OF SUCH DAMAGES OR LOSS OR THE POSSIBILITY OF SUCH DAMAGES OR LOSS. IN NO EVENT SHALL PEARSON’S OR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY CUSTOMER TO PEARSON FOR THE SYSTEM, OR OTHER ITEM OR SERVICE ON WHICH THE CLAIM IS BASED, DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE LOSS OR INJURY.
15.1 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA. 15.2 Limitation on Actions. Customer may bring no action arising out of this Agreement, regardless of form, more than one (1) year after the cause of action has arisen. 15.3 Assignment; Subcontracting. Customer may not assign, delegate, or otherwise transfer all or any portion of this Agreement or its rights and obligations hereunder without the prior, written consent of Pearson. Customer acknowledges that Pearson may subcontract portions of the support services or professional services to be provided by Pearson hereunder to third parties certified by Pearson to provide such services. 15.4 Waiver; Severability. No waiver of any provisions of this Agreement by either party shall be deemed to be an ongoing waiver of such provisions or any rights related thereto unless the parties otherwise expressly agree in writing. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, this Agreement shall be enforced to the maximum extent possible. 15.5 Force Majeure. Neither party shall be held liable to the other party for failure of performance where such failure is caused by supervening conditions beyond that party’s control, including acts of God, civil disturbance, strikes, or labor disputes. 15.6 Notices. Any and all notices shall be sent by United States First Class or Certified Mail or by a courier service furnishing proof of delivery (postage and delivery prepaid). In the case of notices to Pearson, such notices shall be sent to: NCS Pearson, Inc., Attn.: Contracts Department, 3075 W. Ray Road, Suite 200, Mail Stop 315, Chandler, AZ 85226. In the case of notices to Customer, such notices shall be sent to Pearson’s address of record for Customer. Either party may change its notice address by notifying the other in like manner. 15.7 Terms of Agreement. Customer agrees that the terms of this Agreement, including all pricing for Pearson products and services, are the confidential information of Pearson and shall be kept confidential by Customer and not disclosed to any third party without the prior written consent of Pearson; provided, however, that Pearson’s consent shall not be required in the event that disclosure of the terms of this Agreement is required by law (e.g., public records acts or similar statutes that may be applicable to Customer). 15.8 Certain Embedded Software. The System may include certain “open source” software from the Eclipse Foundation distributed under the Eclipse Public License. With respect to such open source software (the “Embedded Software”), the following terms apply: (A) PEARSON DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF ALL CONTRIBUTORS TO THE EMBEDDED SOFTWARE, ALL WARRANTIES OR CONDITIONS, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF TITLE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (B) NO CONTRIBUTOR TO THE EMBEDDED SOFTWARE SHALL BE LIABLE TO CUSTOMER FOR ANY DAMAGES HEREUNDER WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, SUCH AS LOST PROFITS. (C) Source code for the Embedded Software is available from Pearson, and may be obtained by containing Pearson at the address for notices listed above or by contacting Pearson’s telephone support center. (D) Any provisions in this Agreement which differ from the preceding paragraphs (A), (B) or (C) are offered by Pearson alone and not by any other party. 15.9 Total Agreement. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all previous agreements, proposals, negotiations, and correspondence between them, whether oral or written, related to this matter. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Customer with respect to the System or any related products or services provided. This Agreement shall not be modified, varied, waived or otherwise changed without the mutual, written agreement of both parties. Headings used in this Agreement are for reference only and are not interpretive.
15.8 Certain Embedded Software. The System may include certain “open source” software from the Eclipse Foundation distributed under the Eclipse Public License. With respect to such open source software (the “Embedded Software”), the following terms apply:
(A) PEARSON DISCLAIMS, ON ITS BEHALF AND ON BEHALF OF ALL CONTRIBUTORS TO THE EMBEDDED SOFTWARE, ALL WARRANTIES OR CONDITIONS, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OR CONDITIONS OF TITLE AND NON-INFRINGEMENT, AND IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(B) NO CONTRIBUTOR TO THE EMBEDDED SOFTWARE SHALL BE LIABLE TO CUSTOMER FOR ANY DAMAGES HEREUNDER WHATSOEVER, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND CONSEQUENTIAL DAMAGES, SUCH AS LOST PROFITS.
(C) Source code for the Embedded Software is available from Pearson, and may be obtained by containing Pearson at the address for notices listed above or by contacting Pearson’s telephone support center.
(D) Any provisions in this Agreement which differ from the preceding paragraphs (A), (B) or (C) are offered by Pearson alone and not by any other party.
15.9 Total Agreement. This Agreement contains the entire agreement between the parties relating to its subject matter and supersedes all previous agreements, proposals, negotiations, and correspondence between them, whether oral or written, related to this matter. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any purchase order or other documentation submitted by Customer with respect to the System or any related products or services provided. This Agreement shall not be modified, varied, waived or otherwise changed without the mutual, written agreement of both parties. Headings used in this Agreement are for reference only and are not interpretive.
1. Permissions and Licensing Reproduction of any purchased materials requires the prior written consent of Pearson. 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, dissertations 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, 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 must be in writing and directed to:
NCS Pearson, Inc.Educational AssessmentLegalDepartment19500 Bulverde Rd.San Antonio, Texas 78259-3701or sent via email to Legal.Department@pearson.com
Once approved, any reproduction must include acknowledgement of the source, including author, test, publisher, and copyright notice.
2. Permission to Use Copyrighted Test Norms
Pearson has the sole right to authorize reproductions of any portion of its published tests, including test norms. Copying of test norms without authorization is a violation of copyright. The term “copying” includes, but is not limited to, entry of test norms into a computer memory for purposes of test processing, scoring, or reporting. Any person or organization wanting to use Pearson’s test norms must submit a formal written request to Legal.Department@pearson.com. If permission is granted, a fee may be charged. Permission from Pearson for use of test norms does not imply endorsement of, or responsibility for, the accuracy or adequacy of any test processing, scoring, or reporting service.
3. Permission for Research
Permission is not needed for research by individuals who are qualified to license and administer the tests; however, no reproduction of test materials is allowed for any purpose, including articles and reports based on research, without the prior written consent of Pearson.
4. Qualifications
Note: Please read this section. Not everyone who wishes to obtain a license for a test is qualified to do so. In order to avoid delay in your order, please make sure your qualifications are known to us.
The tests listed in this catalog are carefully developed assessment instruments that require specialized training to ensure their appropriate professional use. Eligibility to purchase these tests, therefore, is restricted to accredited schools, and in some instances, to individuals with specific training and experience in a relevant area of assessment. These standards are consistent with the Standards for Educational and Psychological Testing and with the professional and ethical standards of a variety of professional organizations. These organizations whose members use tests are diverse, but include such organizations as the American Counseling Association (ACA), the American Educational Research Association (AERA), the American Psychological Association (APA), the Council for Exceptional Children (CEC), the National Association of School Psychologists (NASP), and the National Council on Measurement in Education (NCME).
Pearson is committed to upholding these standards, and we reserve the right to require additional evidence of each customer’s qualifications. Pearson has the sole right to determine whether a customer is qualified and under what classification. In addition, Pearson retains the right to withhold or withdraw approval for test license where there is evidence of violation of commonly accepted testing practices or any of the Terms and Conditions of Use.
Note: No tests are licensed for self-guidance, nor to any individual or organization engaged in testing and counseling by mail. Test users must agree to guard against the improper use of Pearson’s tests in order to retain the right to license those tests. To protect their security and value, tests and scoring keys must be kept in locked files or storage cabinets accessible only to authorized personnel.
Test materials may not be resold or otherwise distributed, or used as tools for performance coaching or to design performance coaching materials. Customers wishing to license the use of Pearson’s tests for homeschoolers should refer to the section entitled “Rules Governing Sale of Materials to Various Categories of Licensees” on this page.
5. Trademarks
Any unauthorized use of Pearson’s trademarks is strictly prohibited. Requests to use any trademark should be addressed to the Legal Department, Educational Assessment, 19500 Bulverde Rd., San Antonio, Texas 78259-3701.
Pearson reserves the right to amend these policies at any time. Contact the Legal Department for more information at 800-228-0752.
6. Rules Governing License of Materials to Various Categories of Customers
Universities, schools, organizations and businesses are subject to the guidelines set forth above and must have appropriately qualified individuals on staff in order to license test materials. These individuals must complete a Qualifications Form or provide information as to their qualifications. Orders not accompanied by this documentation may not be processed.
Qualified individuals should comply with the requirements of their respective institutions concerning the use of purchase orders. Pearson 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 Customer is a homeschooler, please contact Customer Service for advice. There are homeschool agencies that provide testing services in programs approval by Pearson.
Note: The Stanford Achievement Test Series, Metropolitan Achievement Tests, Aprenda, and Otis Lennon School Ability Tests are sold to accredited schools and school districts only.