contract

Certica Software Supplement

EXHIBIT: CERTICA SOFTWARE SUPPLEMENT

Additional Definitions:.  “Certica Software Programs” means the software program or programs of Certica Solutions (“Certica”), and all modified, updated, enhanced or replacement versions of such programs hereafter released by Certica under its maintenance and support programs to PowerSchool by Certica and identified under the name ” Certica Item Bank” in Exhibit B.

LICENSE GRANT:  PowerSchool’s Client (the “Licensee”) is hereby granted a limited, non-exclusive, non-transferable right and license to access and use the Item Bank within the State in which the Licensee is organized, authorized and resides (the “Licensee Territory”) to provide non‑commercial access and use of any or all of the items from Certica’s Formative Assessment Item Bank (referred to herein as the “Item Bank” or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from the Item Bank 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 Item Bank as high stakes assessments.  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 retains all rights under copyright and all other intellectual property rights in and to the Item Bank, all Items included therein and all modifications and derivative works created there from.  The Licensee’s rights to access and use the Item Bank, the Items and all modifications and derivative works thereof shall terminate upon the termination of the agreement between the Licensee and PowerSchool granting this License.  Licensee acknowledges that use the Item Bank, the Items and all modifications and 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 Item Bank may include material licensed by third parties to Certica (“Third Party Content”) and that NWEA’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 Item Bank, and to delete, and require the deletion by the Licensee, of specific Items and/or passages from the Item Bank.

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 ITEM BANK IN ACCORDANCE WITH THE LICENSE OR THE LICENSEE’S AGREEMENT WITH POWERSCHOOL.  CERTICA IS NOT RESPONSIBLE FOR THE CONTENT, ACCURACY, COMPLETENESS OR ADEQUACY OF ANY STATE STANDARDS 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 PRECEDING SUCH CLAIM.

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