1. License Grant. NCS Pearson, Inc. (hereinafter called "Pearson Assessments") grants to You, the undersigned customer (hereinafter called "You"), a personal, non-transferable, non-exclusive license to use the Q Local(tm) software product ("Products") for individual test scoring and reporting usages ("Administrations") of certain tests procured by You during the term of this Agreement. The Products consist of software and related user documentation ("Software"), a Report Counter which coordinates use of the Software, as well as Administrations and output reports, including but not limited to, profile and interpretive reports ("Reports") delivered through the Software.
2. Term. The term of this Agreement begins the date this Agreement is electronically accepted by You and will continue, except as otherwise provided in this Agreement, for one (1) year, to be renewed automatically, on the same terms (including payment of initial and annual license Software License Fees), for subsequent one (1) year terms unless and until terminated by either party, in its discretion, upon at least sixty (60) days advance written notice to the other party.
3. Orders and Payment. All orders for Products and Administrations during the term of this Agreement are subject to acceptance by Pearson Assessments, in its discretion, and will be fulfilled subject to Pearson Assessments Qualification requirements (click on the following link to view Qualification Requirements) and Pearson Assessments Terms of sale and use (click on the following link to view Terms) and this Software License.
Orders will be shipped FOB Minneapolis. You agree to pay all applicable charges for Products (including any initial and annual Software License Fees), Administrations, installation and support of the Products at Pearson Assessments’ then-prevailing rates at the time of order, together with any applicable taxes. Unless otherwise specified by Pearson Assessments, charges are due and payable within thirty (30) days of invoice.
4. Use of Products. You agree to use the Products only: (a) in accordance with the terms and conditions referenced in Pearson Assessments’ then-current published Test User’s Qualification Policy, and in accordance with all federal, state and local laws and regulations and (b) for the number of Administrations You have purchased from Pearson Assessments. You also agree to only use the Software and each Report Counter provided by Pearson Assessments on computers that conform to Pearson Assessments’ then current published computer operating environment specifications. Lost, damaged or stolen Report Counters and unused Administrations will not be replaced free of charge. You may make copies of the Software during the term of this Agreement as necessary for using the Software or making back-up copies in support of the licensed use of the Software. You agree to install any Maintenance Release provided to You by Pearson Assessments, if such Maintenance Release is provided to You at no additional charge. You understand and agree that Pearson Assessments products are meant to be used as tools to supplement You in the overall assessment process, and are not intended or designed to be used alone or replace Your professional judgment. Use of psychological tests in employment-related situations may be subject to certain laws including Title VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities Act of 1990, as amended; and other federal, state, and local laws and regulations.
5. Protection of Products.
a. Generally. The Products are the proprietary property of Pearson Assessments and contain trade secrets, copyrighted works and, in certain cases, patented intellectual property, owned by Pearson Assessments and/or its licensors. The placement of a copyright notice on any portion of the Products does not mean that it has been published and will not derogate any claim by Pearson Assessments of trade secret protection. Title to the Products and copies thereof, and all intellectual property rights protecting the Products shall remain with Pearson Assessments and/or its licensors.
(i)You agree not to copy or duplicate the Products, except as expressly permitted by this Agreement. You also agree not to modify or alter the physical or electronic characteristics of the Products, and to not dismantle or reverse engineer any part of the Products.
(ii) Because the Software and its outputs, including but not limited to Reports, are protected as trade secrets, except as expressly provided in sections 5. b. (iii-iv) below, these TRADE SECRETS ARE NOT PERMITTED TO BE DISCLOSED in response to requests made pursuant to HIPAA (Health Insurance Portability and Accountability Act of 1996) or any other data disclosure law that exempts disclosure of information or documents protected as trade secrets. You agree that You will not otherwise, directly or indirectly disclose any trade secrets of Pearson Assessments without the prior written consent of Pearson Assessments.
(iii) The foregoing notwithstanding, You may disclose a copy of the bubble form answer sheet (not including question text) that has been used to administer the test as well as the printed "Item Responses" page (only) generated by the Software.
(iv)You may excerpt portions of the Reports, limited to the minimum text necessary to accurately describe your significant core conclusions, for incorporation into your written evaluation of the individual, in accordance with Your profession’s citation standards, if any.
(v.)You may not, under any circumstance, copy or reproduce the text of any test question.
6. Products Availability. Pearson Assessments’ rights to make available Products for administration, scoring and/or interpretation of certain tests are subject to agreements between Pearson Assessments and test owners/licensors. There is no assurance that Pearson Assessments will be able to provide Products with respect to a particular test now or in the future. If Pearson Assessments is unable to provide Products with respect to a particular test, You may continue to use any previously purchased Administrations. You agree that Pearson Assessments will not be liable to You in any manner whatsoever for any future unavailability of Products or Administrations.
7. Support. You may contact Pearson Assessments Technical Support for help in installation and operation of the Software, by telephone during regular Pearson Assessments Technical Support business hours. Upon Your request, (or as otherwise shipped to You in Pearson Assessments’ discretion) and at no additional charge to You, You will receive one copy of any Maintenance Release (new versions of the Software that fix certain defects in the Software, at Pearson Assessments’ discretion, but which are not considered by Pearson Assessments to be substantial upgrades of the Software) made available by Pearson Assessments to all other Software licensees similarly situated to You.
8. Warranty. Pearson Assessments warrants that neither the Products in their standard form nor normal use will infringe any valid United States patents or copyrights existing at the time of Products delivery, provided, however, that this warranty does not extend to any non-NCS Pearson Product ("NCS Pearson Products" are published directly or under licenses by NCS Pearson), to any infringement arising out of use of the Products in combination with systems, equipment or Software not supplied by Pearson Assessments or any use of the Products outside the United States. If You promptly notify Pearson Assessments of any such infringement claim of which You have knowledge or notice, and accord Pearson Assessments the right, at its sole option and expense, to handle the defense of the infringement claim, Pearson Assessments will indemnify and hold You harmless from and against such infringement claim. If such an infringement claim arises, or if Pearson Assessments becomes aware of the possibility of such a claim, then Pearson Assessments may, in its discretion (a) furnish You with non-infringing replacement Products within sixty (60) days; or (b) terminate this Agreement in whole or in part by repurchasing Your unconsumed Administrations. This is Your exclusive remedy for any breach of this warranty against infringement.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION, PEARSON ASSESSMENTS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS. ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
9. Termination. Either party shall have the right to terminate this Agreement, including any licenses, if the other party breaches any of its obligations under this Agreement and fails to cure the same within thirty (30) days after receipt of written notice of default (except that there shall be no cure period for Your breach of Pearson Assessments’ rights under Sections 4 or 5 of this Agreement). If this Agreement is terminated for any reason, You agree to return all copies of the Software and the Report Counter(s) to Pearson Assessments or destroy the same, as directed by Pearson Assessments. In addition, if Pearson Assessments for any reason, supplies You with replacement Software, You agree to cease using the Software being replaced and to either return the replaced Software and/or Report Counter(s) or destroy the same, as directed by Pearson Assessments. Pearson Assessments shall have the right to demand immediate possession of all Software and/or Report Counter(s) not returned by You within ten (10) days after You have been requested to do so. Your obligations under this Section 9, as well as the provisions of Section 10 below, shall survive any termination of this Agreement.
10. Indemnification. EXCEPT AS PROVIDED IN SECTION 8 OF THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY AND HOLD PEARSON ASSESSMENTS HARMLESS AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, OR EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION WITH (A) YOUR USE OF THE PRODUCTS COVERED BY THIS AGREEMENT AND/OR (B) YOUR FAILURE TO PERFORM THE OTHER TERMS OF THIS AGREEMENT.
11. Liability. PEARSON ASSESSMENTS’ LIABILITY FOR LOSS OR DAMAGE RELATING TO THIS AGREEMENT AND/OR THE PRODUCTS OR YOUR USE OR INABILITY TO USE THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE CHARGES PAID BY YOU FOR THE PRODUCTS INVOLVED. THIS IS YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL PEARSON ASSESSMENTS BE LIABLE TO YOU FOR ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY OR FOR ANY CLAIM MADE BY YOU FOR LOST BUSINESS OR PROFITS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF PEARSON ASSESSMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR DAMAGES.
12. Federal Government Terms and Conditions. If You are the United States Government or any agency or instrumentality thereof, the Products are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government of the Products is subject to restriction as set forth in: (a) subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFAR 252.227-7013 (October 1988), if You are subject to Department of Defense Federal Acquisition Regulations; or (b) FAR 52.227-19 (June 1987), if You are not subject to the DFAR, but are the United States Government or an agency or instrumentality thereof. The Contractor, for purposes of such provisions, is NCS Pearson, Inc., 5601 Green Valley Drive, Bloomington, Minnesota 55437.
13. General. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA. The foregoing choice of law notwithstanding, copyright, trademark, and patent claims are subject only to U.S. Federal law and U.S. Federal court interpretation thereof. This Agreement constitutes the entire agreement of You and Pearson Assessments concerning this matter, and supersedes all discussions, proposals, bids, invitations, orders, and other communications, oral or written, on this subject. These Terms and Conditions may not be waived, amended, or modified in any way except through a written agreement signed by the Vice President and General Manager of Pearson Assessments, a business of NCS Pearson. If any one or more provisions of this Agreement are found to be illegal or unenforceable, the remaining provisions will be enforced to the maximum extent possible. To the extent any purchase order from You conflicts with or amends these Terms and Conditions in any way, these Terms and Conditions, as unmodified, will prevail.