Q-Interactive Beta Testing License Agreement
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING Q-INTERACTIVE AND THE ACCOMPANYING ASSESSMENTS (“Q-interactive"). Q-INTERACTIVE IS LICENSED TO YOU UNDER THIS BETA TESTING LICENSE, NOT SOLD TO YOU. BY USING Q-INTERACTIVE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS LICENSE, DO NOT USE THE Q-INTERACTERACTIVE SYSTEM.
1. License Grant. This Beta Testing License Agreement is a legal agreement concerning Q-interactive and is between You, as either an individual or a single business entity and NCS Pearson, Inc. This Agreement supersedes and replaces any prior proposal, representation, or understanding You may have regarding Your use of the Q-interactive system.NCS Pearson, Inc. (hereinafter called "Pearson") grants to You, or anyone authorized by You or acting on Your behalf, the undersigned customer (hereinafter called "You or Your"), a personal, non-transferable, nonexclusive license to use the Q-interactive Assessment Creation, Scoring and Reporting System product (“Q-interactive”) to enable administration, scoring, and reporting of the WISC, WAIS, CVLT-C, CVLT-II and portions of D-KEFS test(s) (the “Test(s)”) and retention of examinee data during the term of this Agreement. Q-interactive displays Test instructions and items for onscreen Test administration or data entry, Test-related manuals, and related user documentation, Q interactive coordinates Your access to specific Test(s) procured by You from Pearson and based on the data input and the report selected by You, generates Test-specific output reports, including but not limited to, profile and interpretive reports ("Reports") delivered through Q-interactive. Q-interactive also provides You with an opportunity to export Your examinee data to Your desktop or to retain the examinee data in files on Q- interactive.
2. BETA DISCLAIMER. THE BETA VERSION OF Q-INTERACTIVE LICENSED HEREUNDER MAY CONTAIN PERFORMANCE ISSUES OR DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON Q-INTERACTIVE’S PERFORMANCE AND THE IDENTIFICATION OF POSSIBLE PERFORMANCE ISSUES OR DEFECTS. LICENSEE IS ADVISED TO SAFEGUARD IMPORTANT DATA AND BACK UP IMPORTANT INFORMATION FREQUENTLY, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF Q-INTERACTIVE AND/OR ACCOMPANYING MATERIALS OR ASSESSMENTS.
3. Term. The term of this Agreement begins on the date this Agreement is electronically accepted by You or when You use Q- interactive and will continue until October 31,2012 or until a commercial release is made available, whichever is earlier, (“Beta Test Period”) unless or until terminated by either party.
4. Test Administrations. During the Beta Test Period, You will not be charged for anyorders for Test(s) and administrations, scoring, and Reports through the Q- interactive system (“Administrations”). However, you represent that you are a current customer of Pearson and are qualified to administer and previous user of one of the following tests: WISC, WAIS, CVLT-C, CVLT-II and D-KEFS. Your use of the system and the Tests are subject to Pearson’s Terms and Conditions of Sale and Use. You agree to be responsible for all applicable taxes.
5. Feedback. It is expressly understood, acknowledged and agreed that You shall, regardless of whether or not formally requested to do, provide to Pearson during the Beta Test Period reasonable suggestions, comments and feedback regarding Your use of the Q-interactive, including but not limited to usability, bug reports and test delivery results, with respect to beta testing the system (collectively, "Feedback"). If you provide such Feedback to Pearson, You shall grant Pearson the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: (i) to make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Pearson product, technology, service, specification or other documentation (individually and collectively, "Pearson Products"); (ii) to publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Pearson’s Product; (iii) solely with respect to Licensee's copyright and trade secret rights, to sublicense to third parties the foregoing rights, including the right to sublicense to further third parties; and (iv) to sublicense to third parties any claims of any patents owned or licensable by Licensee that are necessarily infringed by a third party product, technology or service that uses, interfaces, interoperates or communicates with the feedback or portion thereof incorporated into a Parallels Product, technology or service. Further, You warrant that Your Feedback is not subject to any license terms that would purport to require Pearson to comply with any additional obligations with respect to any Pearson Products that incorporate any Feedback.
6. Use of the Test(s) and Q- interactive. You agree to use the Test(s) and Q-interactive (a) in accordance with the Terms and Conditions referenced in Pearson’s then current published catalog and in accordance with all federal, state and local laws and regulations and (b) for the number of Administrations You have received from Pearson. You also agree to only use Q-interactive on devices that conform to Pearson’s then-current published electronic operating environment specifications. You understand and agree that Pearson’s Test(s) and Q-interactive are meant to be used as tools to supplement You in the overall assessment process, and are not intended or designed to be used alone or replace Your professional judgment. Use of psychological tests in employment-related situations may be subject to certain laws including Title VII of the Civil Rights Act of 1964, as amended; the Americans With Disabilities Act of 1990, as amended; and other federal, state, and local laws and regulations. You shall not grant sublicenses or permit third parties to use the system, assign or transfer (including transfer by rental) Q-interactive or use Q-interactive in any manner inconsistent with the terms of this Beta Test License without the prior written consent of Pearson.
7. Protection of Test(s) and Operating System. The Tests(s) and the Q-interactive operating system are the proprietary property of Pearson and contain trade secrets, copyrighted works and, in certain cases, patented intellectual property, owned by Pearson and/or its licensors. The placement of a copyright notice on any portion of the Test(s) or Q-interactive does not mean that they have been published and will not derogate any claim by Pearson of trade secret protection. Title to the Test(s) and Q-interactive and copies thereof, and all intellectual property rights protecting the Test(s) and score reports shall remain with Pearson and/or its licensors and Q-interactive shall remain the property of Pearson.
8. Examinee Data. You understand that You may be allowed to export Your examinee data at any time. We recommend frequent exporting of data during this Beta Test Period. If You choose to store examinee data on Q-interactive, Pearson will regularly backup the examinee data stored in the Q-interactive data base and will securely store these backups. However, You must make regular backups and agree that You release Pearson from any failure in the database system. At the conclusion of the Beta Test Period, Pearson may at its sole discretion erase and destroy all retained information collected from You or Your examinees during the Beta Test Period.
9. Restrictions on Use
(a) You agree not to copy or duplicate, modify or alter physical or electronic characteristics of the Test(s) or the Q-interactive operating system or to dismantle or reverse engineer any part of the Test(s) or Q- interactive.
(b) Because Q-interactive and its outputs, including but not limited to Reports, are protected as trade secrets, except as expressly provided in this section 8, these TRADE SECRETS ARE NOT PERMITTED TO BE DISCLOSED in response to requests made pursuant to HIPAA (Health Insurance Portability and Accountability Act of 1996) or any other data disclosure law that exempts disclosure of information or documents protected as trade secrets. You agree that You will not otherwise, directly or indirectly disclose any trade secrets of Pearson without the prior written consent of Pearson.
(c) You may excerpt portions of the Reports, limited to the minimum text necessary to accurately describe Your significant core conclusions, for incorporation into Your written evaluation of the individual, in accordance with Your profession’s citation standards, if any.
(d) You may not, under any circumstance, copy or reproduce the text of any Test question without Pearson’s prior written permission.
(e) You agree that Q-interactive and any Materials, including the specific design and structure of tests, test delivery, or reports, provided to you by Pearson constitute confidential proprietary information of Pearson. You shall permit only authorized users, who possess rightfully, obtained license keys, to use the Q-interactive system. You agree not to transfer, copy, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of Pearson. You agree to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Tests provided to you by Pearson. You will use your best efforts to cooperate with and assist Pearson in identifying and preventing any unauthorized use, copying, or disclosure of Q-interactive, the Tests, or any portion thereof.
10. Test(s) Availability. Pearson’s rights to make available Test(s) and Administrations are subject to agreements between Pearson and the Test owners/licensors. There is no assurance that Pearson will be able to provide any particular Test now or in the future. If Pearson is unable to sell Administrations with respect to a particular Test, You may continue to use any previously purchased Administrations. You agree that Pearson will not be liable to You in any manner whatsoever for any future unavailability of Test(s) or Administrations.
11. Support. You may contact Pearson’s Technical Support for help in operation of Q-interactive, by telephone during Pearson’s regular Technical Support business hours.
13. Warranty. USE OF THE Q-INTERACTIVE SYSTEM IS “AS IS” AND PEARSON SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED. The only warranty provides during the Beta Test Period is that neither the Test(s) in their standard form nor normal use of the Test(s) will infringe any valid United States patents or copyrights existing at the time the Test(s) are made available by Q-interactive, provided, however, that this warranty does not extend to any non-NCS Pearson test ("NCS Pearson Test(s)" that are published directly or under licenses by NCS Pearson, Inc.), to any infringement arising out of the use of such Test(s) in combination with systems, equipment or Q-interactive programs or platforms not supplied by Pearson or any use of the Test(s) outside the United States. If You promptly notify Pearson of any such infringement claim of which You have knowledge or notice, and accord Pearson the right, at its sole option and expense, to handle the defense of the infringement claim, Pearson will indemnify and hold You harmless from and against such infringement claim. If such an infringement claim arises, or if Pearson becomes aware of the possibility of such a claim, then Pearson may, in its discretion (a) furnish You with non-infringing replacement Test(s) within sixty (60) days; or (b) terminate this Agreement in whole or in part by repurchasing Your unconsumed Administrations. THIS IS YOUR EXCLUSIVE REMEDY FOR ANY BREACH OF THIS WARRANTY AGAINST INFRINGEMENT.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION, PEARSON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TEST(S). ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.
14. Termination. Either party shall have the right to terminate this Agreement, including any licenses, if the other party breaches any of its obligations under this Agreement and fails to cure the same within thirty (30) days after receipt of written notice of default (except that there shall be no cure period for Your breach of Pearson’s rights under of this Agreement). If this Agreement is terminated for any reason, Pearson will allow you access to Q-interactive for not more than thirty (30) days for the sole purpose of exporting Your data. Your obligations under this Section 14, as well as the provisions of Section 15 and 16 below, shall survive any termination of this Agreement.
15. Indemnification. EXCEPT AS PROVIDED IN SECTION 13 OF THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY AND HOLD PEARSON HARMLESS AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, OR EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE TEST(S) COVERED BY THIS AGREEMENT AND/OR YOUR FAILURE TO PERFORM THE OTHER TERMS OF THIS AGREEMENT.
16. Liability. PEARSON’S LIABILITY FOR LOSS OR DAMAGE RELATING TO THIS AGREEMENT AND/OR THE TEST(S) OR YOUR USE OR INABILITY TO USE THE TEST(S), REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE CHARGES PAID BY YOU FOR THE TEST(S) INVOLVED. THIS IS YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL PEARSON BE LIABLE TO YOU FOR ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY OR FOR ANY CLAIM MADE BY YOU FOR LOST BUSINESS OR PROFITS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF PEARSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR DAMAGES.
17. Federal Government Terms and Conditions. If You are the United States Government or any agency or instrumentality thereof, the Test(s) are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States Government of the Test(s) is subject to restriction as set forth in: (a) subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Information clause at DFAR 252.227-7013 (October 1988), if You are subject to Department of Defense Federal Acquisition Regulations; or (b) FAR 52.227-19 (June 1987), if You are not subject to the DFAR, but are the United States Government or an agency or instrumentality thereof. The Contractor, for purposes of such provisions, is NCS Pearson, Inc., 5601 Green Valley Drive, Bloomington, Minnesota 55437.
18. General. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA. The foregoing choice of law notwithstanding, copyright, trademark, and patent claims are subject only to U.S. Federal law and U.S. Federal court interpretation thereof. This Agreement constitutes the entire agreement of You and Pearson concerning this matter, and supersedes all discussions, proposals, bids, invitations, orders, and other communications, oral or written, on this subject. These Terms and Conditions may not be waived, amended, or modified in any way except through a written agreement signed by the President of Pearson Clinical Assessment group, a business of NCS Pearson, Inc. If any one or more provisions of this Agreement are found to be illegal or unenforceable, the remaining provisions will be enforced to the maximum extent possible. To the extent any purchase order from You conflicts with or amends these Terms and Conditions in any way, these Terms and Conditions, as unmodified, will prevail.
19. Assent to Be Bound. By acknowledging Your acceptance of this License, You agree to be bound by the terms of this Agreement. If You do not agree with any term or condition, do not download, order, open, install or use Q-interactive or any Test delivered via Q-interactive.
I ACCEPT THE TERMS AND CONDITIONS
License version effective date July 27, 2012