Certica FAIB License Agreement Terms and Conditions

CERTICA FAIB LICENSE AGREEMENT TERMS AND CONDITIONS

The following additional terms shall apply to customers who license the Certica Solutions Item Bank. All capitalized terms not defined herein shall have the meanings set forth in the Agreement

LICENSE GRANT: Licensee is hereby granted a limited, non-exclusive, non-transferable right and license to access and use the FAIB within the State in which the Licensee is organized, authorized and resides (the “Licensee Territory”) to provide non-commercial access to and use of any or all of the items from Certica Solutions, Inc.’s Formative Assessment Item Bank (referred to herein as the “FAIB” or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from the FAIB as “Items” ) to students registered within the Licensee’s schools/districts for the sole purpose of performing formative assessments of those students (the “License”). The Licensee is strictly prohibited from using or promoting any Items in the FAIB as high stakes assessments. 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. All rights , licenses and privileges not expressly granted to the Licensee under the License will remain exclusive to Certica Solutions, Inc. (“Certica”). Without limiting the generality of the foregoing, the Licensee acknowledges that Certica retains all rights under copyright and all other intellectual property rights in and to the FAIB, all Items included therein, all revisions, modifications, translations, or other adaptations or transformations of the FAIB or the Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”). The Licensee’s rights to access and use the FAIB, the Items and all Derivative Works thereof shall terminate upon the earlier of (i) termination of the agreement between the Licensee and PowerSchool granting this License, or (ii) termination of PowerSchool’s right and license to distribute the FAIB. Licensee acknowledges that use of the FAIB,the Items and all Derivative Works, thereof after termination of the License is strictly prohibited and would constitute infringement of Certica’s proprietary rights.

Pursuant to the License, the Licensee acknowledges and agrees that certain Items in the FAIB 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 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 the Licensee’s agreement with PowerSchool. Throughout the term of the License Certica will have the right, at its sole discretion, to modify the FAIB, and to delete, and require the deletion by the Licensee, of specific Items and/or passages from the FAIB.

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 THE ITEM BANK. CERTICA WILL HAVE NO RESPONSIBILITY WITH RESPECT TO ANY USE OF THE ITEM BANK 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 FAIB IN ACCORDANCE WITH THE LICENSE OR THE LICENSEE’S AGREEMENT WITH POWERSCHOOL CERTICA IS NOT RESPONSIBLE FOR THE CONTENT , ACCURACY, COMPLETENESS OR ADEQUACY OFANY STATESTANDARDS ACCESSIBLE THROUGH THE COVERED PLATFORM.

CERTICA WILL HAVE NO LIABILITY UNDER THE LICENSEE’S AGREEMENT WITH POWERSCHOOL. 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 THE LICENSEE’S AGREEMENT WITH POWERSCHOOL DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDINGSUCH CLAIM.

THIRD PARTY BENEFICIARY: Certica shall be a third party beneficiary of the Licensed Product and Services Agreement between PowerSchool and Licensee.

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