Certica Solutions, Inc. Software (“Certica”)

Navigate License Agreement (“Navigate Agreement”)

This Navigate Agreement is a legal agreement between Certica and you (either an individual or an entity) (“you” or “Licensee”) regarding a license to use Certica’s Navigate Item Bank (together with any updates provided to you under the terms hereof, “Navigate”) pursuant to the terms of (a) this Navigate Agreement and (b) the order documentation (which is our quotation or order form and your purchase order, if you issue purchase orders, in the absence of any other signed order documentation) accepted by an authorized officer of Certica that identifies the license scope limitations applicable to the use of Navigate, the term of license, and the related fees to be paid by Licensee (hereinafter the “Order Form”). Your use of Navigate may be made accessible through software provided by Certica or a third-party and your use of such software may be subject to one or more separate agreements with Certica or third parties. Do not use Navigate until you have carefully read this Navigate Agreement and any additional, relevant agreements. If you do not agree with the terms and conditions of this Navigate Agreement and the Order Form, do not use Navigate.

License and Restrictions

A. License Grant for Certica Navigate

Subject to the terms and conditions of this Navigate Agreement, you are granted a limited, non-exclusive, non-transferable right and license for the specific subjects and the number of students specified in the Order Form, to access and use Navigate for the term specified in the Order Form to provide noncommercial access to and use of any or all of the items from Navigate or individual items, materials associated with the items such as reading passages and graphics, and scoring materials from Navigate (collectively referred to herein as “Items”) only to students registered within the Licensee’s schools/district(s) (the “Licensee Territory”) for the sole purpose of performing formative assessments of those students (the “License”). Pursuant to the License, the Licensee acknowledges and agrees that certain Items in Navigate 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 not extend to Licensee’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 Certica’s rights in and to the respective Third-Party Content, notwithstanding anything to the contrary in this Navigate Agreement. Throughout the term of the License, Certica will have the right, at its sole discretion, to modify Navigate, and to delete, and require the deletion by the Licensee, of specific Items and/or passages from Navigate.

B. Restrictions

You agree not to use Navigate: (1) unless you are 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 Navigate 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. Navigate in its entirety is protected by copyright laws. 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 Navigate, all Items included therein, all revisions, modifications, translations, or other adaptations or transformations of Navigate or the Items, including assessments, and other derivative works created there from (collectively the “Derivative Works”).

C. Termination and Renewal

This Navigate Agreement may be terminated by Certica immediately and without notice if you fail to comply with any term or condition of this Navigate Agreement. This Navigate Agreement shall remain in effect for the term specified in the Order Form (“Navigate Initial Term”) and shall be eligible for renewal for an additional one-year term (“Navigate Renewal Term”) at the end of the Navigate Initial Term and each Navigate Renewal Term (the “Ending Term”) at your option, but should you choose not to renew this Navigate Agreement, then this Navigate Agreement will terminate at the end of the Ending Term. Upon any termination of this Navigate Agreement and the license granted hereunder, your access to Navigate will be disabled and you must cease using Navigate, the Items and all Derivative Works, including any printed copies of Items and/or Derivative Works. Certica shall have the right to change or add to the terms of this Navigate Agreement at any time. Such changes shall be effective upon thirty (30) days notification by any means reasonable to give you actual or constructive notice, or upon posting such terms on Certica’s website, and if you do not agree with the change to the terms of this Navigate Agreement, you may terminate this Navigate Agreement, provided you cease using Navigate, the Items and all Derivative Works.  Your continued use of Navigate, the Items or any Derivative Works after the thirty (30) day notice period will indicate your agreement to any such change. Sections B through F of this Navigate Agreement shall survive any termination or expiration of this Navigate Agreement.

D. 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 NAVIGATE.  CERTICA WILL HAVE NO RESPONSIBILITY WITH RESPECT TO ANY USE OF NAVIGATE, 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 NAVIGATE IN ACCORDANCE WITH THE LICENSE OR THIS NAVIGATE AGREEMENT. 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 THIS NAVIGATE AGREEMENT DURING THE TWELVE (12)MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM.

E. General Provisions

This Navigate Agreement sets forth Certica’s and its representatives’ entire liability and your exclusive remedy with respect to Navigate. You acknowledge that this Navigate Agreement and the Order Form is a complete statement of the agreement between you and Certica with respect to Navigate, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions regarding Navigate, its content or any related services. This Navigate Agreement does not limit any rights that Certica or its representatives may have under trade secret, copyright, patent, trademark or other laws. If any provision of this Navigate Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.  No delay or failure on the part of Certica in the exercise of any right granted under this Navigate Agreement, or available at law or in equity, shall be construed as a waiver of such right.  The validity and performance of this Navigate Agreement shall be governed by Massachusetts law (without reference to choice of law principles), except as to copyright, patent and trademark matters, which are covered by federal laws. You agree to submit to the jurisdiction of the federal and state courts of Massachusetts and waive any objection to venue in such courts. This Navigate Agreement is deemed entered into in Massachusetts, and shall be construed as to its fair meaning and not strictly for or against either party.

F. Trademarks

Certica Solutions, the Certica Logo, Navigate Item Bank and Navigate are trademarks, registered trademarks and/or registered service marks of Certica Solutions, Inc. in the United States.