This Addendum modifies the Master Terms and Conditions governing the provision of products and services by Instructure to Customer and together with the Master Terms and Conditions governs the license of one or multiple of Instructure’s Item Bank products identified on the Order Form (each, an “Item Bank” and together, the “Item Banks”). This addendum is incorporated into the Order Form and the Master Terms and Conditions and together, along with any other addendums identified on the Order Form, form the “Agreement.” Any capitalized term used but not defined herein shall have the meaning ascribed to such term in the Master Terms and Conditions.
- Service. Subject to the terms of this Agreement, Instructure grants to Customer a license to access and use the Item Bank product offerings set forth on the Order Form for the term specified on the Order Form for noncommercial purposes and only for students registered within Customer’s schools/district(s) (the “Territory”) for the sole purpose of performing formative assessments of those students (the “License”). Pursuant to the License, Customer acknowledges and agrees that certain parts of the Item Bank(s) may include material licensed by third parties to Instructure (“Third-Party Content”) and that Instructure’s rights in and to such Third-Party Content may not extend to Customer’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 Instructure’s rights in and to the respective Third-Party Content, notwithstanding anything to the contrary in this Agreement. Throughout the term of the License, Instructure will have the right, at its sole discretion, to modify the Item Bank(s), and to delete, and require the deletion by Customer, of specific Items and/or passages from the Item Bank(s).
- Customer Item Bank Restrictions. Customer Agrees not to use the Item Bank(s): (1) unless Customer is an elementary, middle, and/or secondary school or school district in the United States, a state education agency or a state authorized educational information/service center that provides services and/or software to local educational entities), or a school outside of the United States using a United States based curriculum for English-speaking students; or (2) to promote any items in the Item Bank(s) 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. The Item Bank(s) in its/their entirety is/are protected by copyright laws. All rights, licenses and privileges not expressly granted to Customer under the License will remain exclusive to Instructure. Without limiting the generality of the foregoing, Customer acknowledges that Instructure retains all rights under copyright and all other intellectual property rights in and to the Item Bank(s), all items included therein, all revisions, modifications, translations, or other adaptations or transformations of the Item Bank(s), including assessments, and other derivative works created there from (collectively the “Derivative Works”).
- Termination. Upon any termination of the License granted hereunder, your access to the Item Bank(s) will be disabled and you must cease using such Item Bank(s) and all Derivative Works, including any printed copies of items and/or Derivative Works.
- Warranty Disclaimer. INSTRUCTURE IS NOT RESPONSIBLE FOR THE VALIDITY, FAIRNESS OR QUALITY OF ASSESSMENTS THAT ARE ULTIMATELY PREPARED BY CUSTOMER USING THE ITEM BANK(S). INSTRUCTURE WILL HAVE NO RESPONSIBILITY WITH RESPECT TO ANY USE OF THE ITEM BANK(S) (A) TO THE EXTENT THAT ANY ITEMS CONTAINED IN THE ITEM BANK(S) HAVE BEEN MODIFIED WITHOUT PRIOR WRITTEN APPROVAL BY INSTRUCTURE, OR (B) FOR ANY PURPOSE OTHER THAN FOR FORMATIVE STUDENT ASSESSMENTS, OR (C) FOR FAILURE TO USE THE ITEM BANK(S) IN ACCORDANCE WITH THE LICENSE OR THIS ADDENDUM.