US Trial Agreement
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This Agreement is between NWEA, an Oregon nonprofit public benefit corporation, and the District 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 trial agreement including applicable Schedule(s) and Supplemental Terms.
1.2 District: means the school or school district or other subscribing entity indicated on the signature page and may also refer to a school or group of schools forming an educational entity or any individual persons using or accessing the Program on behalf of the school or school district.
1.3 Effective Date: means the date NWEA provides District with a URL for a Program.
1.4 Evaluation Period: means the fourteen (14) calendar days commencing on the Effective Date.
1.5 License: means the license granted to the Program in Section 2.
1.6 Privacy Laws: means collectively the Children's Online Privacy Protection Act (COPPA), the Family Educational Rights and Privacy Act of 1974 (FERPA), and other applicable laws and regulations regarding the dissemination of information about students.
1.7 Program: means the Children's Progress Academic Assessment™ (CPAA™), and/or MAP® Growth, and/or MAP® Skills as identified in the Schedule A.
1.8 Student Education Records: means personally identifiable assessment results of Subscriber's students that are protected by FERPA and any applicable state law.
1.9 Supplemental Terms: means the Program specific terms available at: https://legal.nwea.org/supplementalterms.html.
2. License. NWEA grants District a nonexclusive, nontransferable license to access, use, and display the Program and its reports and documentation for District's internal use only during the Evaluation Period and solely for trial and evaluation purposes. This License does not permit District to use the Program for any purpose other than as expressly permitted by this Agreement, including, without limitation, any use of the Program for student evaluations or measurements, teacher evaluation or measurements, productive purposes or deployment of the Program in any commercial application or to provide the Program or disclose information resulting from the operation of the Program to any third party without NWEA's prior written approval. For MAP® Growth trials, District acknowledges that no reports or data are available to District through this Agreement.
3. Term. District's License is effective for the Evaluation Period, unless terminated earlier as set forth herein, NWEA provides District with a URL for a Program.
4. Termination.This License terminates automatically if District fails to comply with any of the limitations or other requirements described here. At the end of the Evaluation Period or upon the request of NWEA, whichever is earlier, the License and this Agreement terminate and District shall make no further use of the Program, except to the extent permitted under a subsequent agreement between District and NWEA. Upon expiration or termination of the Evaluation Period or upon the request of NWEA, District shall provide NWEA with information regarding the results of the trial in a format and level of detail reasonably requested by NWEA.
5. Ownership Rights. The Program is protected by United States patent and copyright laws and international treaty provisions. NWEA owns and retains all right, title and interest in and to the Program, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. District's use of the Program does not transfer any title to the intellectual property in the Program to it, and District will not acquire any rights to the Program, except the limited right to use it as expressly granted in this Agreement.
6. Restrictions. District shall not rent, lease, loan, resell or otherwise transfer the Program to anyone else. District shall not permit third parties to benefit from the use or functionality of the Program via a timesharing, service bureau or other arrangement. District shall not transfer or assign any of the rights granted under this Agreement. District shall not reverse engineer, decompile, or disassemble the Program, except to the extent the foregoing restriction is expressly prohibited by applicable law. District shall not modify or create derivative works based in whole or in part upon the Program. District shall not copy the Program or documentation, or remove any proprietary notices or labels on the Program. All rights not expressly set forth in this Agreement are reserved by NWEA. NWEA may periodically conduct audits upon advance written notice to verify compliance with the terms of this Agreement.
7. Privacy Laws. As a school, school district or other educational organization, District is responsible for compliance with the Privacy Laws. For purposes of meeting District's obligations under the Privacy Laws, the parties agree:
8. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM IS 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 PROGRAM INCLUDED WITHIN THE PROGRAM IS ERROR-FREE. THE ENTIRE RISK AND LIABILITY ARISING OUT OF USE OF THE PROGRAM REMAINS WITH DISTRICT. 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 DISTRICT OR ANY THIRD PARTIES; OR (c) RESULTING FROM SCHEDULED MAINTENANCE PERIODS. NWEA CANNOT CONTROL PERFORMANCE OF PROGRAM 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 DISTRICT'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.
9. Limitation. 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 PROGRAM, EVEN IF NWEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NWEA'S ENTIRE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ONE HUNDRED DOLLARS. THIS LIMITATION ALSO APPLIES TO NWEA'S DEVELOPERS AND SUPPLIERS OF THE PROGRAM 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.
10. Indemnification. Subject to applicable law, District 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 District's breach of this Agreement or its use of the Program.
HTML US Trial Agreement March 2017