CERTICA FORMATIVE ASSESSMENT ITEM BANK: The CERTICA Formative Assessment Item Bank includes CERTICA Items (as defined below) that measure mathematics, ELA (reading and writing) for K-12 and science for grades 3-12 and social studies for high school courses. The CERTICA Item Bank also includes some mathematics, reading and science CERTICA Items along with reading passages that have been translated into Spanish. The majority of CERTICA Items are multiple-choice, but the CERTICA Item Bank also contains some short and extended constructed-response CERTICA Items with item-specific and generic rubrics. The CERTICA Items adhere to a generic style guide to help ensure formatting consistency when CERTICA Items are assembled on a test.
The CERTICA Items in the CERTICA Item Bank are aligned to all 50 states and Washington D.C. The CERTICA Items in the CERTICA Item Bank have also been reviewed against the Common Core State Standards (CCSS) and aligned where appropriate. Some of the common core standards and item types are not covered in the Item pool. The CERTICA Items are also aligned to the CERTICA National Framework which was developed to reflect standards that are typically measured on state summative assessments for mathematics and ELA for grades K-12 and science for the following grade ranges: K-2, 3-5, 6-8 and high school.
CERTICA ITEM BANK LICENSE GRANT: Subject to the terms of this Agreement, including this CERTICA Addendum, Provider hereby grants Customer a limited, non-exclusive, non-transferable right and license to access and use the CERTICA Item Bank within the state in which the Customer is organized, authorized and resides (the “Customer Territory”) to provide noncommercial access to and use of any or all of the items from the CERTICA Item Bank (or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from the Item Bank (“CERTICA Items”) to students registered within the Customer’s schools/districts for the sole purpose of performing formative assessments of those students (the “CERTICA License”). The Customer is strictly prohibited from using or promoting any CERTICA Items in the CERTICA Item Bank 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 Customer under the CERTICA License will remain exclusive to Provider or its licensors. Without limiting the generality of the foregoing, the Customer acknowledges that Provider or its licensors retain all rights under copyright and all other intellectual property rights in and to the CERTICA Item Bank, all CERTICA Items included therein, all revisions, modifications, translations, or other adaptations or transformations of the CERTICA Item Bank or the CERTICA Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”).
The Customer’s rights to access and use the CERTICA Item Bank, the CERTICA Items and all Derivative Works thereof are contingent upon Provider’s right and license from its third-party licensors to distribute the CERTICA Item Bank remaining in effect and shall terminate upon the earlier of (i) termination of the agreement between the Customer and Provider, or (ii) termination of Provider’s right and license to distribute the CERTICA Item Bank. In addition, Provider will have the right to terminate this CERTICA License immediately upon written notice if Customer violates any term of this CERTICA License, infringes any of Provider’s or any of its licensors’ rights with respect to any CERTICA or third party intellectual property, or otherwise uses the CERTICA Item Bank, CERTICA Items or Derivative Works in any way other than as expressly permitted under this CERTICA License. Upon termination of this CERTICA License for any reason, all Customer rights under the CERTICA License will immediately cease to exist, Customer must (a) immediately discontinue all use of the CERTICA Item Bank, CERTICA Items and Derivative Works, (b) destroy any and all copies of the CERTICA Item Bank, all CERTICA Items and Derivative Works, (c) purge all electronic versions of the CERTICA Item Bank, CERTICA Items and Derivative Works from its systems, and (d) deliver to Provider a written statement executed by an officer of Customer certifying the foregoing. Notwithstanding the above, Customer understands and agrees that Provider and its licensors will no longer support the CERTICA Item Bank with any updated CERTICA Items and/or modifications to state alignments once the CERTICA License is terminated. Customer acknowledges that use of the CERTICA Item Bank, the CERTICA Items and all Derivative Works thereof after termination of the CERTICA License is strictly prohibited and would constitute infringement of Provider or its licensor’s proprietary rights.
Pursuant to the CERTICA License, the Customer acknowledges and agrees that certain CERTICA Items in the CERTICA Item Bank 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 CERTICA 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 Customer’s agreement with Provider. Throughout the term of the CERTICA License CERTICA will have the right, at its sole discretion, to modify the CERTICA Item Bank, and to delete, and require the deletion by the Customer, of specific CERTICA Items and/or passages from the CERTICA Item Bank.
CERTICA LICENSE RESTRICTIONS: In addition to any restrictions set forth in the CERTICA License grant above, Customer agrees not to: (a) modify, change, adapt, alter, translate, or create derivative works from the CERTICA Item Bank or CERTICA Items; (b) sublicense, lease, rent, loan, or otherwise transfer its CERTICA License rights in and to the CERTICA Item Bank or CERTICA Items to any third party; or (c) otherwise use or copy the CERTICA Item Bank or any CERTICA Item except as expressly allowed under the CERTICA License terms and conditions set forth under this CERTICA Addendum; provided, however, that Customer may select CERTICA Items from the CERTICA Item Bank for use with other Provider or third party content to create formative assessments.
REPRESENTATIONS, WARRANTIES, INDEMNIFICATION AND LIMITATIONS OF LIABILITY.
Provider represents that it has entered into an agreement with CERTICA permitting Provider to distribute and sublicense the CERTICA Item Bank in accordance with the terms set forth in this CERTICA Addendum. In the agreement between Provider and CERTICA, CERTICA has represented that it has the right to enter into the agreement with Provider and that it has not entered into any inconsistent agreement.
NEITHER PROVIDER NOR ITS LICENSORS MAKE ANY WARRANTY WHATSOEVER, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR TITLE. NEITHER PROVIDER NOR ITS LICENSORS ARE RESPONSIBLE FOR THE VALIDITY, FAIRNESS OR QUALITY OF ANY ASSESSMENTS THAT ARE ULTIMATELY PREPARED BY THE CUSTOMER USING THE CERTICA ITEM BANK. NEITHER PROVIDER NOR ITS LICENSORS WILL HAVE ANY RESPONSIBILITY WITH RESPECT TO ANY USE OF THE CERTICA ITEM BANK OR ANY CERTICA ITEMS(A) TO THE EXTENT THAT ANY CERTICA ITEMS HAVE BEEN MODIFIED WITHOUT PRIOR WRITTEN APPROVAL BY PROVIDER OR ITS LICENSORS, AS APPLICABLE, OR (B) FOR ANY PURPOSE OTHER THAN FOR FORMATIVE STUDENT ASSESSMENTS OR (C) FOR FAILURE TO USE THE CERTICA ITEMS OR CERTICA ITEM BANK IN ACCORDANCE WITH THE CERTICA LICENSE OR THE CUSTOMER’S AGREEMENT WITH PROVIDER. NEITHER PROVIDER NOR ITS LICENSORS ARE RESPONSIBLE FOR THE CONTENT, ACCURACY, COMPLETENESS OR ADEQUACY OF ANY STATE STANDARDS ACCESSIBLE THROUGH THE PROVIDER PLATFORM.
Customer agrees to indemnify, defend and hold Provider harmless from and against any liabilities, claims, actions, causes of action, demands, losses, damages, suits, proceedings, fees, expenses, fines penalties and costs (including, without limitation, reasonable attorneys’ fees, costs, and disbursements) (each a “Claim”) based on or arising from Customer’s misuse of the CERTICA Item Bank or any CERTICA Item.
If any Claim is asserted against a party to this Agreement in respect of which such party (the "Indemnified Party") proposes to demand indemnification from the other party pursuant to this CERTICA Addendum, as the case may be, the Indemnified Party will promptly notify the other party (the "Indemnifying Party") in writing. No failure of any Indemnified Party to so notify the Indemnifying Party shall relieve the Indemnifying Party from the obligation to indemnify the Indemnified Party unless and to the extent the Indemnifying Party is actually prejudiced by such failure. Such Indemnified Party will permit the Indemnifying Party to assume entire control of the defense, compromise or settlement of any such indemnified Claim through its own counsel and at its own expense; provided, however, that no such compromise or settlement shall include any non-monetary terms and conditions applicable to such Indemnified Party without the consent of the Indemnified Party (which consent shall not be unreasonably withheld, delayed or conditioned); and provided, further, that the Indemnified Party may retain its own counsel at the Indemnifying Party's expense if (i) the Indemnifying Party, within thirty (30) days after notice of any indemnified Claim, fails to assume the defense of such indemnified Claim or (ii) the representation of both the Indemnifying Party and the Indemnified Party would, in the reasonable judgment of the Parties, be inappropriate due to actual or potential conflicting interests between them. If the Indemnifying Party does not assume entire control of the defense, compromise or settlement of such indemnified Claim, the Indemnified Party may compromise or settle any such indemnified Claim upon the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned). Each Party agrees to cooperate fully with respect to the defense of any indemnified Claim.
CERTICA WILL HAVE NO LIABILITY UNDER THE CUSTOMER’S AGREEMENT WITH PROVIDER. IN NO EVENT SHALL PROVIDER OR 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 PROVIDER OR CERTICA BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES IN EXCESS OF THE FEES PAID TO PROVIDER BY OR ON BEHALF OF THE CUSTOMER PURSUANT TO THE CERTICA LICENSE OR THE CUSTOMER’S AGREEMENT WITH PROVIDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.