MAP®GROWTH™ END USER SUBSCRIPTION AGREEMENT
This Agreement is between NWEA, an Oregon nonprofit public benefit corporation, and Subscriber and is effective as of the Effective Date.
The parties agree as follows:
1. Definitions. In this Agreement, capitalized words have the following meanings:
1.1 Agreement: means this end user subscription agreement including applicable Schedule(s) and Supplemental Terms.
1.2 Assessment Data: means deidentified student assessment data and results, and other metadata, including but not limited to, testing response times, scores (e.g. goals, RIT, overall RIT, etc.), NCES codes, responses, item parameters, and item sequences that result from the Services. Assessment Data is considered deidentified when a reasonable person in the school community without personal knowledge of the relevant circumstances could not identify the student with reasonable certainty.
1.3 Assessment System: means, to the extent included in an applicable Schedule, the following assessment, reporting and administration systems: (i) MAP® Growth); (ii) MAP® Skills; or Children's Progress Academic Assessment™ (CPAA™). Assessment System excludes Subscriber's operating environment and any other systems not within NWEA's control.
1.4 Content: means test items, including images, text, graphs, charts, and pictures.
1.5 Directory Information: means information contained in a Student Education Record that would not generally be considered harmful or an invasion of privacy if disclosed.
1.6 Documentation: means documentation made available to Subscriber by NWEA, which includes technical manuals, but excludes any marketing materials or brochures.
1.7 Effective Date: means the last date set forth on the signature page.
1.8 FERPA: means the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. 1232g(a)(4)(A)(ii), 1232g(b)(1), as amended from time to time.
1.9 Fiscal Agent: means the Nebraska Department of Education who has agreed to pay for Subscriber's per student testing costs for the term of the Fiscal Agent Agreement.
1.10 Fiscal Agent Agreement: means the agreement between NWEA and Fiscal Agent allowing Fiscal Agent to pay for Subscriber's use of NWEA's products and services.
1.11 GRD: means the Growth Research Database, a database containing Assessment Data that are linked to Student Education Records. The GRD is used to generate norming studies and other research reports that Subscriber and all other subscribers receive.
1.12 Legal Order: means a valid order issued by a court or governmental agency of competent jurisdiction.
1.13 NWEA Confidential Information: means all NWEA Content, test scripts, underlying ideas, algorithms, item calibrations, concepts, procedures, processes, principles, know-how, and methods of operation that comprise the Services, including updates, enhancements, modifications, and improvements that are proprietary and confidential and contain trade secrets.
1.14 Reporting: means reports, the Learning Continuum (learning statements that provide an instructional starting point for teachers), and scoring.
1.15 Schedule: means one or more applicable order schedules or other order documents, including, upon renewal, any confirmation page listing generated by NWEA's online account renewal portal. Schedule(s) may be provided as a separate attachment to the same email from which this Agreement is sent.
1.16 Security Breach: means actual evidence of the unauthorized acquisition of or unauthorized use of Student Education Records. For the avoidance of doubt, unauthorized acquisition of or unauthorized use of Directory Information shall not be deemed a Security Breach.
1.17 Services: means certain assessments, Content, Documentation, product training, professional development, Reporting, scoring, Software, and other services as set forth in an applicable Schedule.
1.18 Software: means (i) any web-based or client-server software made available to Subscriber by NWEA; (ii) a lockdown browser sublicensed through NWEA from a third party that facilitates access to the Services; (iii) NWEA software that supports client server assessments; and (iv) any other software set forth in the Supplemental Terms.
1.19 Student Education Record: means personally identifiable assessment results of Subscriber's students that are protected by FERPA and any applicable state law.
1.20 Subscriber: means the school or school district or other subscribing entity participating in the Fiscal Agent & Support Services Agreement.
1.21 Supplemental Terms: means the Services-specific terms available at http://legal.nwea.org/supplementalterms.html.
1.22 Systems Administrator: means the Subscriber-designated individual who, within the Assessment System, is authorized to: (i) modify assessment preferences for Subscriber; (ii) create and modify user profiles for roles including lead roles (i.e. data administrator, assessment coordinator); and (iii) declare testing complete for Subscriber.
2. Grant of License. NWEA grants to Subscriber a nonexclusive, nontransferable, limited license to access, use, display, and install or download a copy, as needed, of the Software solely for Subscriber's internal use. The license is effective for a period of 1 year commencing on the date NWEA makes the Software available to Subscriber, unless otherwise specified in an applicable Schedule. The Services extend only to the quantity of students licensed as indicated on an applicable Schedule. Subscriber acknowledges there are limitations on the number of test events per academic year by assessment type pursuant to the Supplemental Terms.
3. Protection from Unauthorized Use or Access. Subscriber shall not: (a) copy, distribute, reproduce, resell, publish, license, create derivative works, transfer, rent, lease, or sublicense any or all of the Services; (b) exploit for any commercial purposes any portion of the Services, in particular the Content and Reporting, or permit use of the Services by anyone not employed or under the control of Subscriber; (c) remove any proprietary notices or labels on the Services; (d) use the Services in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, distribution of, or rights in, the Content or other work protected by the copyright laws of any jurisdiction. Subscriber shall use reasonably secure measures to prevent unauthorized use (e.g., copying test items) by its end users. Further, Subscriber shall reproduce all copyright, trademark, and other proprietary notices and legends on each copy, or partial copy, of the Services. Subscriber will deactivate and remove from any equipment under its control any prior versions of the Services. The Services and Software may contain mechanical or electronic methods to prevent unauthorized use or distribution of the Software. Subscriber shall not disable or circumvent such control devices.
4. Ownership. The Services are owned by NWEA and are copyrighted and offered through this Agreement to Subscriber, except certain Software is sublicensed from a NWEA supplier. All right, title, and interest in the Services and all copies, updates, enhancements, modifications, and improvements, along with all associated intellectual property rights, remain with NWEA, regardless of either: (i) the source giving rise to the intellectual property; or(ii) despite any modifications or adaptations made for the benefit of Subscriber. The Services, and all updates, enhancements, modifications, and improvements, are protected by United States and international copyright laws and treaties, as well as other intellectual property laws. Subscriber is not granted any license to use any of NWEA's trade or service marks. Additionally, NWEA retains all right, title, and interest in its trade and service marks. Subscriber shall allow NWEA to use, without restriction or royalty obligation, any comments, suggestions, or contributions provided by Subscriber with respect to the Services. Subscriber grants and assigns to NWEA any intellectual property rights that Subscriber may incidentally obtain or have with respect to any such comments, suggestions or contributions.
5. NWEA Confidential Information. Subscriber shall keep NWEA Confidential Information strictly confidential subject to Subscriber's state public records law, if applicable. Subscriber shall not use, disclose, or distribute any Confidential Information, directly or indirectly, without the prior written consent of NWEA, except that NWEA authorizes Subscriber to disclose Confidential Information: (i) to Subscriber's employees or agents who have signed written confidentiality and nondisclosure agreements before such disclosure; and (ii) as required by applicable federal, state, or local law, regulation, or a Legal Order. Before making any disclosure under Section 5(ii), Subscriber shall provide NWEA: (a) Prompt written notice of such requirement so that NWEA may seek, at its sole cost and expense, a protective order or other remedy; and (b) Reasonable assistance, at NWEA's cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required in this Section, the Subscriber remains subject to a Legal Order to disclose any NWEA Confidential Information, the Subscriber (or its representatives or other persons to whom such Legal Order is directed) may disclose no more than that portion of the NWEA Confidential Information which, on the advice of Subscriber's legal counsel, specifically requires the Subscriber to disclose. For any such disclosure, and upon NWEA's written request, Subscriber shall use best efforts to obtain assurances from the applicable court or agency that such NWEA Confidential Information will be afforded confidential treatment.
6. Student Education Records.
6.1 Use of Student Education Records. Pursuant to its Student Education Records policy, Subscriber shall comply with any required parental and guardian consents for NWEA to provide Services to Subscriber under this Agreement. NWEA and Subscriber acknowledge that NWEA will have access to Directory Information and will create and maintain Student Education Records. NWEA shall have policies and practices to secure and keep Student Education Records confidential. Except as permitted under this Agreement, NWEA shall not (i) use Student Education Records for targeted student advertising; or (ii) resell or otherwise disclose to third parties any Student Education Records that NWEA creates or obtains during its performance under this Agreement without the written consent of Subscriber. Subscriber grants permission to NWEA and its contractors that have executed confidentiality agreements to use Student Education Records for maintaining, supporting, and troubleshooting the Services.
6.2 Subscriber's Ownership of Student Education Records. Student Education Records (excluding Assessment Data) are and will remain the property of Subscriber and under Subscriber's control.
6.3 Requests for Disclosure of Student Education Records. Except as otherwise described in this Section 6.3, NWEA shall not redisclose Student Education Records until Subscriber consents in writing to the redisclosure. If NWEA receives a request from a state educational agency for Student Education Records, NWEA shall notify Subscriber via email. Such notification to the Subscriber will provide Subscriber the ability to create and maintain a record of the request or redisclosure with the records of each student and have the record available to parents upon their request, as required by 34 CFR 99.32. Upon NWEA's email notification to Subscriber, NWEA may promptly respond to such requests for redisclosure. Subscriber hereby consents to such redisclosure by NWEA to its state education agency and its designated vendors for the purpose set forth under this section. Subscriber shall indemnify NWEA in accordance with Section 21 (Indemnification) of this Agreement for any consequences which may result from NWEA's redisclosure of Student Education Records to Subscriber's state educational agency and its designated vendors. As part of this Agreement, Subscriber authorizes NWEA to include Student Education Records Information in its secure GRD to provide Services to Subscriber. With inclusion of Student Education Records in the GRD, as part of the Services, Subscriber will have access to results of norming studies and alignment studies and the ability to order virtual comparison group and longitudinal reports, and other research reports from the GRD that may require nominal additional fees. NWEA will handle all such data in a manner that protects student anonymity.
6.4 Redisclosure to Fiscal Agent. During the term of this Agreement, Subscriber grants NWEA permission to redisclose Student Education Records that are generated from test administrations under this Subscription to Subscriber's Fiscal Agent. Subscriber further agrees that the Student Education Records may be retained by the Fiscal Agent until the Fiscal Agent Agreement is terminated or expired, upon which the Fiscal Agent will destroy the Student Education Records.
7. FERPA. In accordance with FERPA, NWEA may itself, through its employees or contractors: (i) maintain and use Student Education Records to perform the Services for the Subscriber; (ii) to use deidentified Student Education Records to improve its Services; and (iii) disclose Assessment Data to third parties for legitimate educational research provided such third parties execute confidentiality agreements. Subscriber is responsible for any notices to parents required under FERPA and for providing parents and guardians with an opportunity to inspect and challenge the contents of a Student Education Record. If NWEA receives a request from a parent or guardian challenging the content of a Student Education Record maintained by NWEA, NWEA shall contact Subscriber to validate the identity of the parent or guardian and student and request instructions regarding corrective action to be taken, if any. Once validated, NWEA shall correct erroneous the Student Education Record as directed by Subscriber in writing.
8. GRD. Subscriber authorizes NWEA to use Student Education Records in the GRD to provide research related Services to Subscriber. Such research Services include longitudinal studies, alignment studies, and norming studies. For additional fees, Subscriber may also order Growth Reports and other research reports. NWEA will handle Student Education Records in a manner that protects student anonymity. The authorization for use of Student Education Records in the GRD commences on the Effective Date or upon the date that Subscriber used or ordered Services, whichever is earlier. NWEA and Subscriber acknowledge that the permissions and obligations expressed in this Agreement survive the termination or expiration of this Agreement and any renewals. As described in Section 15 (Termination and Remedies), NWEA will maintain Student Education Records after expiration or termination of this Agreement for Subscriber's access to Reporting and research related Services and to validate the authenticity of data in such Reporting. If NWEA receives Subscriber's written request to opt out of participation in the GRD, NWEA will deidentify Student Education Records in the GRD. As a result of opting out of the GRD, certain research reports are unavailable to Subscriber due to the inability to accurately link student data with research data. Subscriber's written request must be sent via email to legalservices@nwea.org and include the following: (i) requestor's name, title and contact information; (ii) the name of requesting school or entity with NCES #; (iii) a request to deidentify Student Education Records in the GRD; and (iv) an attestation that requestor is duly authorized and has legal capacity to execute the request.
9. Security and Privacy Obligations.
9.1 Subscriber Responsibilities. Subscriber is solely responsible for configuring role-based access to Student Education Records within the Assessment System and for ensuring the security and availability of Subscriber's own computers, computer networks, and internet connections, including security patches, choice of browser, and browser configuration settings to be used with the Assessment System, email, and other transmissions. Subscriber acknowledges that its Systems Administrator controls the access and security points of the Assessment Systems. Annually, Subscriber shall remove any inactive Systems Administrators and confirm to NWEA the names of its active Systems Administrators. The Assessment System may contain mechanical or electronic methods to prevent unauthorized use or distribution of the Services. Subscriber shall not disable or circumvent such control devices.
9.2 NWEA Responsibilities. Subject to the limitations of warranty set forth in Section 18 (Limited Warranty) of the Agreement, within NWEA's sole discretion and to the extent commercially reasonable, NWEA shall maintain the necessary and appropriate privacy and data security controls to secure Student Education Records. NWEA has commercially reasonable policies and procedures and trains appropriate staff members to secure and maintain the confidentiality of Student Education Records. NWEA has an incident response program that specifies the actions to be taken when NWEA detects a Security Breach. In accordance with applicable state law, NWEA shall notify Subscriber by email or telephone, without unreasonable delay, after confirmation of a Security Breach. In the event of a Security Breach, Subscriber shall cooperate fully with NWEA so that NWEA can comply with its notification obligations to the affected parent(s), legal guardian(s) or eligible student(s) or any other parties for which notification by NWEA is required under applicable state law.
10. Product Training. If Subscriber is new to the Services, Subscriber's teachers and staff administering the Services must, at Subscriber's cost, participate in NWEA introductory product training before testing begins (e.g. MAP Admin Workshop if Subscriber subscribes to MAP Growth or Client Server MAP). Before testing commences, Subscriber shall assign a member of its staff to coordinate the logistics of setting up the training. If Subscriber experiences staff change that affects the administration of the Services, Subscriber shall promptly notify NWEA in writing. NWEA may require Subscriber to send any new staff to introductory NWEA product training.
11. Publicity. Subscriber consents to NWEA's use of and references to Subscriber's name, directly or indirectly, in NWEA's marketing and training materials.
12. Termination and Remedies. This Agreement remains in effect until terminated in accordance with this section. Either party may terminate by providing the other party thirty (30) days written notice of its intent to terminate for convenience. NWEA may terminate immediately without prior notice to Subscriber upon Subscriber's breach of this Agreement. NWEA may seek any legal or equitable remedy available against Subscriber for breach of the terms of this Agreement, including without limitation, injunctive relief and specific performance. After termination or expiration of the Agreement, NWEA shall continue to maintain Student Education Records, allowing Subscriber to continue to access Reporting, unless Subscriber notifies NWEA in writing to deidentify the Student Education Records. Subscriber acknowledges that NWEA will retain use of Assessment Data for research and improvement of products and services.
13. Support. NWEA will provide to Subscriber limited support, updates, enhancements, modifications, improvements, and maintenance services. Subscriber acknowledges that the validity and accuracy of the Reporting depends upon the accuracy and completeness of the class roster file Subscriber submits.
14. Scheduled Maintenance. NWEA has system maintenance periods throughout the year that affect Subscriber's use of the Services, including Subscriber's ability to (i) upload or download student and test data; (ii) access Reporting; or (iii) interact with any of NWEA's websites. NWEA provides notice of regularly scheduled maintenance at NWEA.org (https://www.nwea.org). NWEA may perform emergency maintenance at any time without advance notice.
15. Limited Warranty. NWEA warrants, during the subscription period, that the Assessment System, as delivered by NWEA and when used in accordance with the Documentation and the terms of this Agreement, will substantially perform in accordance with the Documentation. If the Assessment System does not operate as warranted and Subscriber has provided written notice of the non-conformity to NWEA within thirty (30) days of discovery of such non-conformity, NWEA shall at its option (i) repair the Assessment System; (ii) replace the Assessment System with a system of substantially the same functionality; or (iii) terminate the license to the non-conforming Assessment System and provide Subscriber a pro-rata refund representing the portion of any fees previously paid for the unused portion of the terminated license measured from the effective date of termination. The foregoing warranty specifically excludes defects in or non-conformance of the Assessment System resulting from (a) use of the Assessment System in a manner not in accordance with the Documentation except as otherwise authorized in writing by NWEA; (b) modifications or enhancements to the Assessment System made by or on behalf of Subscriber except as otherwise authorized in writing by NWEA; (c) combining the Assessment System with products, software or devices not provided by NWEA; (d) improper or inadequate maintenance of Subscriber's own computers, computer networks, operating environment, security programs, and internet connections; or (e) computer hardware malfunctions, unauthorized repair, accident, or abuse.
16. Disclaimer. EXCEPT FOR THE EXPRESS LIMITED WARRANTY PROVIDED IN SECTION 18 (LIMITED WARRANTY), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE OR USE; (iii) QUALITY; (iv) PRODUCTIVENESS; OR (v) CAPACITY, OR THAT THE OPERATION OF THE SOFTWARE INCLUDED WITHIN THE SERVICES IS ERROR-FREE. EXCEPT AS PROVIDED HERE, THE ENTIRE RISK AND LIABILITY ARISING OUT OF USE OF THE SERVICES REMAINS WITH SUBSCRIBER. THERE IS NO WARRANTY FOR DATA SECURITY OR PERFORMANCE ISSUES (a) CAUSED BY FACTORS OUTSIDE OF NWEA'S REASONABLE CONTROL; OR (b) RESULTING FROM ANY ACTION OR INACTION OF SUBSCRIBER OR ANY THIRD PARTIES; OR (c) RESULTING FROM SCHEDULED MAINTENANCE PERIODS. NWEA CANNOT CONTROL PERFORMANCE OF SERVICES BASED ON THE FLOW OF DATA TO OR FROM NWEA'S NETWORK AND OTHER PORTIONS OF THE INTERNET, WHICH DEPEND 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 SUBSCRIBER'S CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). ALTHOUGH NWEA USES COMMERCIALLY REASONABLE EFFORTS TO REMEDY AND AVOID SUCH EVENTS, NWEA DOES NOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, NWEA DISCLAIMS ANY LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
17. Limitation. THE REMEDIES PROVIDED UNDER THE LIMITED WARRANTY ARE SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDIES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT IS NWEA LIABLE FOR ANY DAMAGES OR EXPENSES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES, OR PECUNIARY LOSS, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF NWEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NWEA'S ENTIRE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE RIGHT TO USE THE SERVICES IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THIS LIMITATION ALSO APPLIES TO NWEA'S DEVELOPERS AND SUPPLIERS OF THE SERVICES AND IS THE MAXIMUM FOR WHICH THEY AND NWEA ARE COLLECTIVELY RESPONSIBLE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
18. Indemnification.
18.1 By Subscriber. To the extent limited by applicable law, Subscriber shall indemnify, defend, and hold harmless NWEA and NWEA's officers, directors, employees, agents, and representatives, from and against any claims, damages, expenses, judgments, fines, and amounts paid in settlement in connection with any proceeding arising from (i) any breach of the following Sections: 5 (NWEA Confidential Information), 6 (Student Education Records), 8 (GRD), and 9 (Security and Privacy Obligations); (ii) any use of the Services; or (iii) any other breach of this Agreement by Subscriber or any of its employees and agents.
18.2 By NWEA. Subject to Section 20 (Limitation), NWEA shall (i) defend Subscriber against any claims made by an unaffiliated third party that the Assessment System infringes its US patent, copyright, or trademark; and (ii) pay the amount of any resulting adverse final judgment against Subscriber (after any appeals) or settlement to which NWEA consents. Subscriber must notify NWEA promptly in writing of the claim. Subscriber must also give NWEA sole control over its defense and settlement. Subscriber shall provide NWEA with reasonable assistance in defending the claim. NWEA's obligations under this Section will not apply to the extent the claim (or adverse final judgment) is based on: (i) Subscriber using the Assessment System after NWEA has informed Subscriber to discontinue use due to such a claim; (ii) the combination or use of the Assessment System with non-NWEA information, data, or materials except as otherwise authorized in writing by NWEA; (iii) modification of the Assessment System except as otherwise authorized in writing by NWEA; or (iv) use of NWEA's trademark(s) without express written permission. If NWEA receives information about a claim under this Section related to the Assessment System, NWEA may do any of the following, at its discretion and expense: (i) procure the right to continue its use; (ii) replace it with a functional equivalent; (iii) modify it to make it non-infringing (if NWEA does this, Subscriber will stop using the allegedly infringing Assessment System immediately); or (iv) terminate this Agreement. Notwithstanding anything to the contrary, NWEA's commitment under this Section is Subscriber's exclusive remedy for third-party infringement and trade secret misappropriation claims. Nothing in this section obligates NWEA to indemnify Subscriber from and against any claims, suits, actions, losses, damages, liabilities, costs and expenses attributable to the acts or omissions of Subscriber, its officers, employees, or agents.
19. Miscellaneous.
19.1 Force Majeure. Neither party is liable for any delay or failure to perform any obligation hereunder due to causes beyond its control, including without limitation, war, riot, insurrection, civil commotion, terrorist activity, fire, industrial dispute, act of nature, computer crime including denial of service attacks, epidemic, act or omission of a third-party vendor or supplier, equipment failure, public enemy of government, failure of telecommunications, system malfunction, or other casualty.
19.2 Waiver and Severability. Waiver of any default or breach under this Agreement by NWEA does not constitute a waiver of any subsequent default or a modification of any other provisions of this Agreement. If any part of this Agreement is held illegal or otherwise unenforceable by a court of competent jurisdiction, the parties intend that the remainder of this Agreement nevertheless remains in full force and effect. Upon a determination that any term or provision is illegal or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible.
19.3 No Third-party Beneficiaries. The parties do not intend to confer any right or remedy on any third party including the Fiscal Agent.
19.4 Survival. The following sections survive any termination or expiration of this agreement or the termination of any license granted under this agreement: 1 (Definitions); 3 (Protection from Unauthorized Use or Access); 4 (Ownership); 5 (NWEA Confidential Information); 6 (Student Education Records); 7 (FERPA); 8 (GRD); 9 (Security and Privacy Obligations); 14 (Scheduled Maintenance); 15 (Limited Warranty); 18 (Indemnification); and 19 (Miscellaneous).
19.5 Entire Agreement; Order of Precedence. This Agreement contains the entire understanding of the parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this Agreement. If there is a conflict among any of the terms of this Agreement, the parties intend that it be resolved by giving precedence to Agreement documents in the following order (i.e. the earlier listing governing the later): (i) any Supplemental Terms to the extent related to Services described in an applicable Schedule; (ii) this Agreement without any Schedules or Supplemental Terms; (iii) the most recent Schedule; followed by (iv) any other Schedules in reverse chronological order.
19.6 Assignment. Subscriber may not assign this Agreement to any third party without the prior written consent of NWEA, which consent shall not be unreasonably withheld.
19.7 Binding. This Agreement binds and inures to the benefit of each party and its respective successors and approved assigns, if any.
19.8 Merger or Sale of NWEA. If either (i) NWEA and a third party merge; or (ii) NWEA is sold to a third party, then the surviving or resulting entity shall maintain the Student Education Records in accordance with this Agreement, if the entity is subject to this Agreement.
19.9 Representation of Signatories. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement for its respective party.
19.10 Notices. Any notice required under this Agreement shall be in writing and effective when (a) delivered personally against receipt, (b) deposited in the mail and registered or certified with return receipt requested, postage prepaid, (c) shipped by a recognized courier service and addressed to either party as designated in this Agreement, (d) delivered by email to an email address designated by the recipient, or (e) when delivered via any of the foregoing at such other address as may be provided by the recipient in accordance with this section.
Address for Notices to NWEA:
NWEA
121 NW Everett Street
Portland, OR 97209
Email: legalservices@nwea.org
Address for Notices to Subscriber shall be sent to the address set forth in Subscriber's applicable Schedule A.
19.11 Controlling Law and Venue. The parties intend that this Agreement be construed and controlled by the laws of the State of Nebraska, U.S.A., without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and does not apply to this Agreement.
19.12 RESERVED.
19.13 Counterparts. The parties may execute this Agreement in counterparts, each of which is an original, and the counterparts constitute one and the same Agreement. The parties may also deliver and accept facsimile or electronically scanned signatures, which bind a party as if the signature were an original.
19.14 Vendor Status and Independent Contractor. NWEA provides Services within its normal business operations and operates in a competitive environment. The Services constitute a vendor relationship, as defined by 2 CFR part 200, subpart F and, therefore, any monies to pay for this Agreement are not subject to the federal audit requirements of 2 CFR part 200, subpart F. NWEA is an independent contractor, and neither NWEA nor its employees are Subscriber's employees. Nothing contained in this Agreement creates or implies an agency relationship, joint venture, or partnership between the parties.
Updated: July 2017