Certica Solutions, Inc. ("Certica")
Software License Agreement ("Agreement")
This Agreement is a legal agreement between Certica and you (either an individual or an entity) ("you" or "Licensee") regarding a license from Certica to use the software (together with any updates or maintenance releases provided to you under the terms hereof, the "Certica Software") that you are about to use pursuant to the terms of (a) this Agreement and (b) the order documentation (which is our quotation and your purchase order in the absence of any other signed order documentation) accepted by an authorized officer of Certica that identifies the Certica Software that is licensed to Licensee, the license scope limitations applicable to the use of the Certica Software, the term of license, the Certica Software support services to be purchased, the implementation services to be purchased, if any, and the related fees to be paid by Licensee (hereinafter the "Order Form").
If you purchased this license for the Certica Software and do not agree with the terms and conditions of this Agreement and the Order Form, do not use the Certica Software. The use by Licensee of any services or content accessible through the Certica Software may be subject to one or more separate agreements with Certica or third parties. Do not use the Certica Software or any services or content accessible through the Certica Software until you have carefully read the following Agreement and any additional, relevant agreements.
License and Restrictions
A. License Grant for Certica Software
Subject to the terms and conditions of this Agreement, you are granted a limited, non-exclusive, non-transferable license for the number of users specified in the Order Form, or an unlimited number of users if not explicitly specified in the Order Form, to use the Certica Software for the term specified in the Order Form.
B. Restrictions
You agree not to: (1) make copies or attempt to make copies of the Certica Software; (2) enable others to use your registration code(s), license key(s) or serial number(s), if any; (3) give access to another person not authorized to use the Certica Software under the terms of this Agreement and the applicable Order Form; or (4) copy the printed materials or user documentation accompanying the Certica Software, if any. The Certica Software in its entirety is protected by copyright laws. The Certica Software also contains the trade secrets of Certica and its licensors, and you may not decompile, reverse engineer, disassemble, or otherwise reduce the Certica Software to human- perceivable form or disclose such trade secrets, or disable any functionality of the Certica Software. You may not attempt to modify, adapt, translate, rent, sublicense, assign, loan, resell for profit, or distribute the Certica Software, or related materials or create derivative works based upon the Certica Software or any part thereof.
C. Termination and Renewal
This Agreement may be terminated by Certica immediately and without notice if you fail to comply with any term or condition of this Agreement. This Agreement shall remain in effect for the term specified in the Order Form ("Initial Term") and shall be eligible for renewal for an additional one-year term ("Renewal Term") at the end of the Initial Term and each Renewal Term (the "Ending Term") at your option, but should you choose not to renew this Agreement, then this Agreement will terminate at the end of the Ending Term. Upon any termination of this Agreement and the license granted hereunder, your access to the Certica Software will be disabled. Certica shall have the right to change or add to the terms of this Agreement at any time, and to change, discontinue or impose conditions on any feature or aspect of the Certica Software. Any such changes to the terms of this Agreement shall be effective upon thirty (30) days notification by any means reasonable to give you actual or constructive notice, or upon posting such terms in the Certica Software, and if you do not agree with the change to the terms of this Agreement, you may terminate this Agreement, provided you cease use of the Certica Software. Your continued use of the Certica Software after the thirty (30) day notice period will indicate your agreement to any such change. Sections B through L shall survive any termination or expiration of this Agreement.
D. Product Support Services
For each license of Certica Software specified in an accepted Order Form, Certica will provide product support services (in accordance with Certica's standard support services terms and conditions) to one (1) named support contact at the Licensee during the Initial Term and any Renewal Terms.
E. DISCLAIMER OF WARRANTIES
THE CERTICA SOFTWARE, RELATED MATERIALS, CONTENT AND/OR RELATED SERVICES ACCESSIBLE THROUGH THE CERTICA SOFTWARE, ARE PROVIDED "AS-IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CERTICA AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, ("REPRESENTATIVES") DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CERTICA SOFTWARE, RELATED MATERIALS, CONTENT AND ANY SERVICES, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, SECURITY, QUALITY, MERCHANTABILITY, OR THEIR NON-INFRINGEMENT. CERTICA DOES NOT WARRANT THAT THE CERTICA SOFTWARE OR ANY RELATED SERVICES OR CONTENT IS SECURE, OR IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS, INCLUDING BUT NOT LIMITED TO ACCURATE OR UPDATED THIRD-PARTY CONTENT, NOR DOES CERTICA WARRANT ACCESS TO ANY SERVICE OR CONTENT THROUGH THE CERTICA SOFTWARE, OR CONTINUED ACCESS TO ANY TRIAL SOFTWARE PROVIDED OR TO THE DATA ENTERED INTO SUCH TRIAL SOFTWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE OF PURCHASE OF THE LICENSE FOR THE SOFTWARE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE.
F. LIMITATION OF LIABILITY AND DAMAGES
THE ENTIRE LIABILITY OF CERTICA AND ITS REPRESENTATIVES' FOR ANY REASON SHALL BE LIMITED TO THE LESSER OF THE ACTUAL AMOUNT OF DIRECT DAMAGE OR THE AMOUNT PAID BY THE LICENSEE FOR THE CERTICA SOFTWARE, RELATED MATERIALS, CONTENT AND/OR RELATED SERVICES ACCESSIBLE THROUGH THE CERTICA SOFTWARE LICENSED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CERTICA AND ITS REPRESENTATIVES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF CERTICA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF THE DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CERTICA AND YOU. CERTICA WOULD NOT HAVE BEEN ABLE TO PROVIDE THE CERTICA SOFTWARE, RELATED MATERIALS, CONTENT AND/OR RELATED SERVICES ACCESSIBLE THROUGH THE CERTICA SOFTWARE TO YOU WITHOUT SUCH LIMITATIONS.
G. U.S. Government
The Certica Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-1 through 227-7202-4 (JUNE 1995), all U.S. Government End Users acquire the Certica Software (or Licensed Product) with only those rights set forth herein.
H. Confidentiality
"Confidential Information" means any business or technical information of Certica or Licensee, including but not limited to any information relating to Certica's product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how, which is either designated by the disclosing party as proprietary or confidential information (either in written, oral or electronic format) or information which, by its nature or context, would reasonably be known to be confidential without specific designation. Confidential Information does not include information that: (a) is or becomes public through no fault or breach by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party. Neither party will use the other party's Confidential Information except as permitted herein, and will not, at any time, disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.
I. Data Privacy
Certica acknowledges that in the course of providing Certica Software to you, student data may be disclosed to Certica. Certica therefore further agrees that it will comply with the requirements in the:
Certica acknowledges that under applicable law, regulation and policy, officers, employees, and agents who access student records and data may use such data only for the purposes for which the Certica Software has been made available; that Certica is prohibited from re-disclosing such records or data to third parties and will use reasonable methods to ensure to the greatest extent practicable that such records and data are protected from further disclosure; and that Certica will destroy any such records or data when this Agreement is terminated.
J. Export Restrictions
You acknowledge and agree that the Certica Software is subject to restrictions and controls imposed by the Export Administration Act and the Export Administration Regulations ("the Export Acts"). You agree and certify that neither the Certica Software nor any direct product thereof is being or will be used for any purpose prohibited by the Export Acts. You agree and certify that you are not a citizen or permanent resident of the following countries: Cuba, Iran, Iraq, North Korea, Libya, Sudan or Syria.
K. General Provisions
This Agreement sets forth Certica's and its representatives' entire liability and your exclusive remedy with respect to the Certica Software. You acknowledge that this Agreement and the Order Form is a complete statement of the agreement between you and Certica with respect to the Certica Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions regarding the Certica Software, its content or any related services.
This Agreement shall govern any services or content related to the Certica Software, unless such services or content are subject to a separate agreement between you and Certica or its representatives. However, the limitations of liability and disclaimer of warranties in this Agreement shall apply to Certica and its representatives with respect to such content or services except to the extent provided otherwise in a separate agreement approved by Certica between you and Certica or the applicable representative(s).
This Agreement does not limit any rights that Certica may have under trade secret, copyright, patent, trademark or other laws. The representatives of Certica are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Certica, other than in writing signed by an officer of Certica. Accordingly, such additional statements are not binding on Certica and you should not rely upon such statements. If any provision of this Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. No delay or failure on the part of Certica in the exercise of any right granted under this Agreement, or available at law or in equity, shall be construed as a waiver of such right. The validity and performance of this Agreement shall be governed by Nebraska law (without reference to choice of law principles), except as to copyright, patent and trademark matters, which are covered by federal laws. You agree to submit to the jurisdiction of the federal and state courts of Nebraska and waive any objection to venue in such courts. This Agreement is deemed entered into in Nebraska, and shall be construed as to its fair meaning and not strictly for or against either party.
L. Trademarks
Certica Solutions, the Certica Logo, Certify, and TestWiz are trademarks, registered trademarks and/or registered service marks of Certica Solutions, Inc. in the United States.
Certica Solutions, Inc. ("Certica")
Navigate License Agreement ("Navigate Agreement")
This Navigate Agreement is a legal agreement between Certica and you (either an individual or an entity) ("you" or "Licensee") regarding a license to use Certica's Navigate Item Bank (together with any updates provided to you under the terms hereof, "Navigate") pursuant to the terms of (a) this Navigate Agreement, (b) the Agreement between you and Certica governing your license to use Certica's TestWiz software which Navigate will be used in conjunction with, and (c) the order documentation (which is our quotation and your purchase order in the absence of any other signed order documentation) accepted by an authorized officer of Certica that identifies the license scope limitations applicable to the use of NAVIGATE, the term of license, and the related fees to be paid by Licensee (hereinafter the "Order Form").
If you purchased this license for Navigate and do not agree with the terms and conditions of this Navigate Agreement and the Order Form, do not use Navigate. Do not use Navigate until you have carefully read the following Navigate Agreement.
License and Restrictions
A. License Grant for Navigate
Subject to the terms and conditions of this Navigate Agreement, you are granted a limited, non-exclusive, non-transferable right and license for the number of users specified in the Order Form, or an unlimited number of users if not explicitly specified in the Order Form, to access and use Navigate for the term specified in the Order Form to provide noncommercial access to and use of any or all of the items from Navigate or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from Navigate (referred to herein as "Items") only to students registered within the Licensee's schools/district(s) (the "Licensee Territory") for the sole purpose of performing formative assessments of those students (the "License") .
Pursuant to the License, the Licensee acknowledges and agrees that certain Items in Navigate may include material licensed by third parties to Certica ("Third Party Content") and that Certica's rights in and to such Third Party Content may not extend to Licensee's Territory or may expire or otherwise terminate during the term of the License. Any rights in and to Third Party Content will at all times be limited and subject to Certica's rights in and to the respective Third Party Content, notwithstanding anything to the contrary in this Navigate Agreement. Throughout the term of the License, Certica will have the right, at its sole discretion, to modify Navigate, and to delete, and require the deletion by the Licensee, of specific Items and/or passages from Navigate.
B. Restrictions
You agree not to use Navigate: (1) unless you are an elementary, middle, and/or secondary schools or school district in the United States, or a New York "BOCES" (a New York State municipal corporation that by contract pursuant to Education Law § 1950 provides shared computer services and software to school district components of the New York Regional Information Centers), or a school outside of the United States using a United States based curriculum for English-speaking students; or (2) or promote any Items in Navigate as high-stakes assessments, where the results of high-stakes assessments are used for purposes other than improving instruction and student learning, such as graduation tests, college admissions tests and teacher evaluation assessments. Navigate in its entirety is protected by copyright laws. All rights, licenses and privileges not expressly granted to the Licensee under the License will remain exclusive to Certica. Without limiting the generality of the foregoing, the Licensee acknowledges that Certica retain all rights under copyright and all other intellectual property rights in and to Navigate, all Items included therein, all revisions, modifications, translations, or other adaptations or transformations of Navigate or the Items, including assessments, and other derivative works created there from (collectively the "Derivative Works").
C. Termination and Renewal
This Navigate Agreement may be terminated by Certica immediately and without notice if you fail to comply with any term or condition of this Navigate Agreement. This Navigate Agreement shall remain in effect for the term specified in the Order Form ("Navigate Initial Term") and shall be eligible for renewal for an additional one-year term ("Navigate Renewal Term") at the end of Navigate Initial Term and each Navigate Renewal Term (the "Ending Term") at your option, but should you choose not to renew this Navigate Agreement, then this Navigate Agreement will terminate at the end of the Ending Term. Upon any termination of this Navigate Agreement and the license granted hereunder, your access to Navigate will be disabled and you must cease using Navigate, the Items and all Derivative Works. Certica shall have the right to change or add to the terms of this Navigate Agreement at any time. Such changes shall be effective upon thirty (30) days notification by any means reasonable to give you actual or constructive notice, or upon posting such terms in Certica's TestWiz software through which Navigate is accessed by you, and if you do not agree with the change to the terms of this Navigate Agreement, you may terminate this Navigate Agreement, provided you cease using Navigate, the Items and all Derivative Works.Your continued use of Navigate, the Items or any Derivative Works after the thirty (30) day notice period will indicate your agreement to any such change. Sections B through F shall survive any termination or expiration of this Navigate Agreement.
D. CERTICA REPRESENTATIONS, WARRANTIES AND LIMITATIONS OF LIABILITY
Certica represents that it has the right to grant this License. CERTICA MAKES NO WARRANTY WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, TITLE. CERTICA IS NOT RESPONSIBLE FOR THE VALIDITY, FAIRNESS OR QUALITY OF ASSESSMENTS THAT ARE ULTIMATELY PREPARED BY THE LICENSEE USING NAVIGATE. CERTICA WILL HAVE NO RESPONSIBILITY WITH RESPECT TO ANY USE OF NAVIGATE, OR ANY ITEMS (A) TO THE EXTENT THAT ANY ITEMS HAVE BEEN MODIFIED WITHOUT PRIOR WRITTEN APPROVAL BY CERTICA OR (B) FOR ANY PURPOSE OTHER THAN FOR FORMATIVE STUDENT ASSESSMENTS OR (C) FOR FAILURE TO USE THE ITEMS OR Navigate IN ACCORDANCE WITH THE LICENSE OR THIS NAVIGATE AGREEMENT. CERTICA IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, COMPLETENESS OR ADEQUACY OF ANY STATE STANDARDS ACCESSIBLE THROUGH TESTWIZ.
IN NO EVENT SHALL CERTICA BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES. FURTHERMORE, NOTWITHSTANDING ANYTHING CONTAINED IN THE AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL CERTICA BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID TO CERTICA BY OR ON BEHALF OF THE LICENSEE PURSUANT TO THE LICENSE OR THIS NAVIGATE AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.
E. General Provisions
This Navigate Agreement sets forth Certica's and its representatives' entire liability and your exclusive remedy with respect to Navigate. You acknowledge that this Navigate Agreement and the Order Form is a complete statement of the agreement between you and Certica with respect to Navigate, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions regarding Navigate, its content or any related services.
This Navigate Agreement does not limit any rights that Certica or its representatives may have under trade secret, copyright, patent, trademark or other laws. If any provision of this Navigate Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. No delay or failure on the part of Certica in the exercise of any right granted under this Navigate Agreement, or available at law or in equity, shall be construed as a waiver of such right. The validity and performance of this Navigate Agreement shall be governed by Nebraska law (without reference to choice of law principles), except as to copyright, patent and trademark matters, which are covered by federal laws. You agree to submit to the jurisdiction of the federal and state courts of Nebraska and waive any objection to venue in such courts. This Navigate Agreement is deemed entered into in Nebraska, and shall be construed as to its fair meaning and not strictly for or against either party.
F. Trademarks
Certica Solutions, the Certica Logo, Certify, TestWiz,and Navigate are trademarks, registered trademarks and/or registered service marks of Certica Solutions, Inc. in the United States.