DeKalb_CSD_Custom_Master_Subscription_Agreement_13278_NWEA - July 10, 2023 - DCSD Board Meeting Archive

Agency Code: 13278

CUSTOM MASTER SUBSCRIPTION AGREEMENT

This Custom Master Subscription Agreement (“Agreement”) is entered into by and between NWEA, a division of
Houghton Mifflin Harcourt Publishing Company with a business address located at 125 High Street, Suite 900,
Boston, MA 02110 (“NWEA”), and DeKalb County School District, with a business address at 1701 Mountain
Industrial Blvd., Stone Mountain, GA 30083 (“Subscriber”) and is effective July 1, 2023 (“Effective Date”).

The parties agree as follows:
1. Definitions. 1.10 Schedule: means one or more applicable
1.1 Anonymized Data: means any Student order schedules or other order documents, including,
Education Record rendered anonymous in such a upon renewal, any confirmation page generated by
manner that the student is no longer identifiable. For NWEA’s online account renewal portal, which are
example, this includes non-identifiable student considered incorporated into this Agreement.
assessment data and results, and other metadata, 1.11 Security Breach: has the meaning
testing response times, scores (e.g. goals, RIT), NCES ascribed to that term by the applicable state law, or, if
codes, responses, item parameters, and item not defined by state law, means actual evidence of a
sequences that result from the Services. confirmed unauthorized acquisition of, access to, or
1.2 Assessment System: means, to the unauthorized use of any Student Education Record(s).
extent included in an applicable Schedule, the following 1.12 Services: means the Assessment
assessment, reporting, and administration systems: (i) System, Content, Documentation, Product training,
MAP® Growth or (ii) MAP® Reading Fluency, each a professional learning, Reporting, Software, GRD, and
product (“Product”). Assessment System excludes other services as described in this Agreement and set
Subscriber’s operating environment and any other forth in an applicable Schedule.
systems not within NWEA’s control. 1.13 Software: means (i) any web-based or
1.3 Content: means test items, including client-server software made available to Subscriber by
images, text, graphs, charts, and pictures. NWEA; (ii) a lockdown browser sublicensed through
1.4 Deidentified Data (Pseudonymized NWEA from a third party that facilitates access to the
Data): means a Student Education Record processed in Services; (iii) NWEA software that supports client server
a manner in which the Student Education Record can assessments; and (iv) any other software set forth in the
no longer be attributed to a specific student without the Supplemental Terms.
use of additional information, provided that such 1.14 Student Education Record: means
additional information is kept separately using technical personally identifiable information of Subscriber’s
and organizational measures. students as defined by FERPA and any applicable state
1.5 Documentation: means Product law.
documentation made available to Subscriber by NWEA, 1.15 Supplemental Terms: means the
which includes technical manuals, but excludes any Services-specific terms available at
marketing materials or brochures. http://legal.nwea.org/msa_supplemental_terms.pdf
1.6 FERPA: means the Family Educational which are incorporated herein by reference.
Rights and Privacy Act, 20 U.S.C. § 1232g(a)(4)(A)(ii), 1.16 Systems Administrator: means the
1232g(b)(1), as amended from time to time. Subscriber-designated individual who, within the
1.7 GRD: means the Growth Research Assessment System, is authorized to: (i) modify
Database used to generate longitudinal studies, assessment preferences for Subscriber; (ii) create and
alignment studies, linking studies, norming studies, and modify user profiles for roles including lead roles (i.e.
other research reports that Subscriber and other data administrator, assessment coordinator); and (iii)
subscribers may receive. declare testing complete for Subscriber.
1.8 NWEA Confidential Information: means 2. Grant of License. NWEA grants to Subscriber
all NWEA non-public, proprietary or confidential a nonexclusive, nontransferable, limited license to
information, in oral, visual, written, electronic or other access, use, display, and install or download a copy, as
tangible or intangible form, whether or not marked or needed, of the Services solely for Subscriber’s internal
designated as confidential, including without limitation use. The license is effective for a period of one (1) year
all NWEA Content, test scripts, underlying ideas, commencing on the date NWEA makes the Software
algorithms, item calibrations, concepts, procedures, available to Subscriber, unless otherwise specified in an
processes, principles, know-how, and methods of applicable Schedule. The Services extend only to the
operation that comprise the Services, including updates, quantity indicated on an applicable Schedule.
enhancements, modifications, and improvements. Subscriber acknowledges Product limitations on the
1.9 Reporting: means Product reports, number of test events per academic year (see
learning statements, research studies, and scoring. Supplemental Terms).

Master Subscription Agreement - Domestic 1 Last revised on: August 1, 2022
3. Protection from Unauthorized Use or Access. assistance, at NWEA’s cost and expense, in opposing
Subscriber shall not: (i) copy, distribute, reproduce, such disclosure or seeking a protective order or other
resell, publish, license, create derivative works, transfer, limitations on disclosure. If, after providing such notice
rent, lease, or sublicense any or all of the Services; and assistance as required in this Section, the
(ii) exploit for any commercial purposes any portion of Subscriber remains subject to a Legal Order to disclose
the Services or permit use of the Services by anyone not any NWEA Confidential Information, the Subscriber (or
employed by or under the control of Subscriber; its representatives or other persons to whom such Legal
(iii) remove any proprietary notices or labels from the Order is directed) may disclose no more than that
Services; (iv) use the Services in an attempt to, or in portion of the NWEA Confidential Information which, on
conjunction with, any device, program, or service the advice of Subscriber’s legal counsel, specifically
designed to circumvent technological measures requires the Subscriber to disclose. For any such
employed to control access to, distribution of, or rights disclosure, Subscriber shall use best efforts to obtain
in, the Services. Subscriber shall use reasonably secure written assurances from the applicable court or agency
measures to prevent unauthorized use (e.g., copying that such NWEA Confidential Information will be
test items) by its end users. Further, Subscriber shall afforded confidential treatment. NWEA understands and
reproduce all copyright, trademark, and other agrees that Subscriber must comply with the Georgia
proprietary notices and legends on each copy, or partial Open Records Act O.C.G.A. § 50-18-70 and release
copy, of the Services. Subscriber will deactivate and public documents as defined by the Act upon request,
remove from any equipment under its control any prior including this Agreement all public records prepared and
versions of the Services. maintained in relation to this Agreement. NWEA shall
4. Ownership. The Services are owned and have two (2) business days, upon Subscribers written
copyrighted by NWEA and are licensed through this notice of such public records request to determine
Agreement to Subscriber, except certain Software is whether any portion of any public records are private
sublicensed from an NWEA supplier. All right, title, and information of NWEA and redact such portions of the
interest in the Services and all copies, updates, public record, as applicable.
enhancements, modifications, and improvements, along 6. Student Education Records.
with all associated intellectual property rights, remain 6.1 Privacy - Student Education Records.
with NWEA, regardless of either: (i) the source giving Subscriber shall comply with all applicable federal and
rise to the intellectual property; or (ii) any modifications state laws regarding use, access, and disclosure of
or adaptations made for the benefit of Subscriber. The Student Education Records. The foregoing obligation
Services, and all updates, enhancements, includes but is not limited to, Subscriber’s compliance
modifications, and improvements, are protected by with its policies regarding parental and guardian
United States and international intellectual property consents required for NWEA and its contractors to
laws and treaties. Subscriber is not granted any license provide Services to Subscriber under this Agreement.
to use NWEA’s or its suppliers’ trade or service marks. NWEA and Subscriber acknowledge that NWEA will
Additionally, NWEA retains all right, title, and interest in collect, use and disclose Student Education Records
its trade and service marks. Subscriber shall allow consistent with the NWEA Privacy Policy – Assessment
NWEA to use, without restriction or royalty obligation, System.
any comments, suggestions, or contributions provided 6.2 Subscriber’s Ownership of Student
by Subscriber with respect to the Services. Subscriber Education Records. Subscriber owns the Student
grants and assigns to NWEA any intellectual property Education Records.
rights that Subscriber may incidentally obtain or have 7. FERPA. In accordance with FERPA, NWEA
with respect to any such comments, suggestions, or may maintain and use Student Education Records to
contributions. perform the Services and may disclose Anonymized
5. NWEA Confidential Information. Subscriber Data to third parties for legitimate educational research.
shall not use, disclose, or distribute any NWEA Subscriber is responsible for any notices to parents
Confidential Information, directly or indirectly, without required under FERPA and for providing parents and
the prior written consent of NWEA, except that NWEA guardians with an opportunity to inspect and challenge
authorizes Subscriber to disclose NWEA Confidential the contents of a Student Education Record. If NWEA
Information: (i) to Subscriber’s employees or agents receives a request from a parent or guardian
who have signed written confidentiality and challenging the content of a Student Education Record
nondisclosure agreements before such disclosure; and maintained by NWEA, NWEA shall contact Subscriber
(ii) as required by applicable federal, state, or local law, to validate the identity of the parent or guardian and
regulation, or a Legal Order. Before making any student and request instructions regarding corrective
disclosure under Section 5(ii), Subscriber shall provide action to be taken, if any. Once validated, NWEA shall
NWEA: (a) prompt written notice of such requirement so correct the erroneous Student Education Record as
that NWEA may seek, at its sole cost and expense, a directed by Subscriber in writing.
protective order or other remedy; and (b) reasonable

Master Subscription Agreement - Domestic 2 Last revised on: July 1, 2023
8. GRD. Subscriber authorizes NWEA to use Education Records. NWEA has an incident response
Student Education Records in the GRD, commencing program that specifies the actions to be taken in the
on the Effective Date or upon the date that Subscriber event of a Security Breach. NWEA shall notify
used or ordered Services, whichever is earlier. NWEA Subscriber by email or telephone in accordance with
and Subscriber acknowledge that the permissions and applicable state law or without unreasonable delay,
obligations expressed in this Agreement survive the whichever occurs sooner, after a Security Breach. In the
termination of this Agreement and any renewals. As event of a Security Breach, Subscriber shall cooperate
described in Section 15, NWEA will maintain Student fully with NWEA so that NWEA can comply with its
Education Records after termination of this Agreement notification obligations to the affected parent(s), legal
for Services which may include, but are not limited to, guardian(s), eligible student(s), or any other parties for
Subscriber’s access to Reporting and research-related which notification by NWEA is required under applicable
Services and to validate the authenticity of data in such state law. More information regarding NWEA’s
Reporting. If NWEA receives Subscriber’s written information security program can be found in our MAP®
request to opt out of participation in the GRD, NWEA will Growth™ Security Whitepaper.
deidentify Student Education Records in the GRD. As a 10. Fees and Taxes. Subscriber shall pay the fees
result of opting out of the GRD, certain research reports set forth on the applicable Schedule. Subscriber is a tax-
are unavailable to Subscriber due to the inability to exempt entity, and shall send NWEA written evidence of
accurately link student data with research data. such tax exemption and any other documentation as
Subscriber’s written request must be sent via email to NWEA may reasonably request related to assessing
legalservices@nwea.org and include the following: (i) taxes applicable to Subscriber.
requestor’s name, title and contact information; (ii) the 11. Billing; Payment; and Orders. Subscriber
name of requesting school or entity with NCES #; (iii) a shall use its best efforts to determine the number of
request to deidentify Student Education Records in the students to be tested by Subscriber. NWEA shall send
GRD; and (iv) an attestation that requestor is duly an invoice based on the applicable Schedule to
authorized and has legal capacity to execute the Subscriber, and Subscriber shall pay the amount due
request. within 30 days of the invoice date by mailing a check or
9. Security and Privacy Obligations. depositing the amount due via a wire transfer.
9.1 Subscriber Responsibilities. Subscriber Subscriber must contact NWEA at
is solely responsible for configuring role-based access accountsreceivable@nwea.org for wire transfer
for its employees and authorized third parties to Student instructions. If, Subscriber underestimates the number
Education Records within the Assessment System and of students tested, NWEA may submit an amended
for ensuring the security and availability of Subscriber’s invoice to capture the additional students tested, and
own passwords, computers, computer networks, and Subscriber shall pay the variance within 30 days of the
internet connections, including security patches, choice amended invoice date. Any purchase order, credit card
of browser and browser configuration settings to be order, or other order document with sufficient
used with the Assessment System, email, and other information for NWEA to process the order that is
transmissions. Subscriber acknowledges that its accepted by NWEA will be governed by this Agreement,
Systems Administrator controls the access and security provided however, the terms and conditions in any
points of the Assessment Systems. Annually, purchase order accepted by NWEA shall not be binding
Subscriber shall remove any inactive Systems upon NWEA and shall not modify the terms of this
Administrators and confirm to NWEA the names of its Agreement. All orders, including Schedules, license
active Systems Administrators. The Assessment renewals, and/or other order documents will be
System may contain mechanical or electronic methods governed by the terms of this Agreement. NWEA
to prevent unauthorized use or distribution of the reserves the right to increase its then-current list prices
Services. Subscriber shall not disable or circumvent and introduce new list prices upon 30 days notice to
such control devices. Subscriber acknowledges that the Subscriber. Any such increases will only become
validity and accuracy of the Reporting depends upon the effective upon renewal of a Subscription term.
accuracy and completeness of the class roster file 12. Amendments and Renewals. Notwithstanding
Subscriber submits. anything to the contrary, terms of any purchase orders
9.2 NWEA Responsibilities. Subject to the or written authorizations issued by Subscriber or any
limitations of warranty set forth in Section 18 of the other communications which are additional to or
Agreement, NWEA shall implement administrative, inconsistent with this Agreement are not binding unless
physical, and technical safeguards to protect Student NWEA expressly assents to such terms in writing. Any
Education Records from unauthorized access, Renewal Term exercised pursuant to Secttion 14 herein
acquisition, or disclosure, destruction, alteration, as well as any expansions during the Initial Term or any
accidental loss, misuse, or damage that are no less Renewal Term are governed by this Agreement
rigorous than accepted industry practices to protect the (including all NWEA order forms). The conditions of
confidentiality, integrity, and availability of Student payment described in Sections 10 and 11 apply to all

Master Subscription Agreement - Domestic 3 Last revised on: July 1, 2023
renewals and expansions. Subscriber shall make all 17. Scheduled Maintenance. NWEA has system
payments under this Agreement to NWEA. maintenance periods throughout the year that affect
13. Product Training. If Subscriber is new to the Subscriber’s use of the Services, including Subscriber’s
Services, Subscriber’s teachers and staff administering ability to (i) upload or download student and test data;
the Services must, at Subscriber’s cost, participate in (ii) access Reporting; or (iii) interact with any of NWEA’s
NWEA introductory product training before testing websites. NWEA provides notice of regularly scheduled
begins (e.g. MAP Admin Workshop if Subscriber maintenance at NWEA.org (https://www.nwea.org).
subscribes to MAP Growth or Client Server MAP). NWEA may perform emergency maintenance, at any
Before testing commences, Subscriber shall assign a time without notice.
member of its staff to coordinate the logistics of setting 18. Limited Warranty.
up the training. If Subscriber experiences staff change 18.1 Performance Warranty. NWEA
that affects the administration of the Services, warrants, during the subscription period, that the
Subscriber shall promptly notify NWEA in writing. NWEA Product(s), as delivered by NWEA and when used in
may require Subscriber to send any new staff to accordance with the Documentation and the terms of
introductory NWEA product training. this Agreement, will substantially perform in accordance
14. Publicity. Intentionally Deleted with the Documentation. If any Product does not operate
15. Term; Termination; and Remedies. This as warranted and Subscriber has provided written notice
Agreement remains in effect from it’s effective date and of the non-conformity to NWEA within thirty (30) days of
shall continue for a period of one year from July 1, 2023 discovery of such non-conformity, NWEA shall at its
through June 30, 2024 (“Initial Term”). In addition to the option (i) repair the applicable Product; (ii) replace the
Initial Term, there are three (3) annual options to renew applicable Product with a system of substantially the
this Agreement (each a “Renewal Term”) to be same functionality; or (iii) terminate the license to the
exercised at the sole discretion of Subscriber. Either non-conforming Product and provide Subscriber a pro-
party may terminate by providing the other party thirty rata refund representing the portion of any fees
(30) days written notice of its intent to terminate for previously paid for the unused portion of the terminated
convenience. NWEA may terminate immediately and/or license for such Product measured from the effective
suspend Services with 30 days prior written notice to date of termination. The foregoing warranty specifically
Subscriber upon Subscriber’s breach of this Agreement. excludes defects in or non-conformance of the
Prior to terminating or suspending, Subscriber shall be Assessment System resulting from (a) use of the
given 30 days to cure any alleged breach. In the event Assessment System in a manner not in accordance with
of Subscriber’s breach which remains uncured for which the Documentation except as otherwise authorized in
fees have been previously paid by Subscriber during the writing by NWEA; (b) modifications or enhancements to
Initial Term or any Renewal Term, NWEA is not the Assessment System made by or on behalf of
obligated to refund any fees. Either party may seek any Subscriber except as otherwise authorized in writing by
legal or equitable remedy available against the other NWEA; (c) combining the Assessment System with
party for breach of the terms of this Agreement, products, software or devices not provided by NWEA;
including without limitation, injunctive relief and specific (d) improper or inadequate maintenance of Subscriber’s
performance. After termination of the Agreement, own computers, computer networks, operating
NWEA shall continue to maintain Student Education environment, security programs, and internet
Records until: (i) NWEA receives Subscriber’s written connections; or (e) computer hardware malfunctions,
request to destroy Student Education Records via email unauthorized repair, accident, or abuse.
to legalservices@nwea.org that includes requestor's 18.2 Disclaimer. EXCEPT FOR THE
name, title, contact information, name of requesting EXPRESS LIMITED WARRANTY PROVIDED IN
school or entity with NCES #, and attestation that SECTION 18, TO THE MAXIMUM EXTENT
Subscriber is duly authorized and has legal capacity to PERMITTED BY APPLICABLE LAW, THE SERVICES
execute the request; and (ii) NWEA confirms the ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF
information in Subscriber’s written request or for a ANY KIND, EITHER EXPRESS OR IMPLIED,
period of 1 year as required by applicable records INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
requirements laws, whichever period is longer. WARRANTIES OF (i) MERCHANTABILITY; (ii)
Thereafter, NWEA shall destroy the Student Education FITNESS FOR A PARTICULAR PURPOSE OR USE;
Records without undue delay or as otherwise required (iii) QUALITY; (iv) PRODUCTIVENESS; OR (v)
under applicable state law. Subscriber understands and CAPACITY, OR THAT THE OPERATION OF THE
agrees that if NWEA destroys Subscriber’s Student SERVICES IS ERROR-FREE. EXCEPT AS
Education Records, NWEA will not be able to provide PROVIDED HERE, THE ENTIRE RISK AND
such data to Subscriber after its destruction. LIABILITY ARISING OUT OF USE OF THE SERVICES
16. Support. NWEA will provide to Subscriber REMAINS WITH SUBSCRIBER. THERE IS NO
limited support, updates, enhancements, modifications, WARRANTY FOR DATA SECURITY OR
improvements, and maintenance services. PERFORMANCE ISSUES (a) CAUSED BY FACTORS

Master Subscription Agreement - Domestic 4 Last revised on: July 1, 2023
OUTSIDE OF NWEA’S REASONABLE CONTROL; OF THE ESSENTIAL PURPOSE OF ANY LIMITED
OR (b) RESULTING FROM ANY ACTION OR REMEDY.
INACTION OF SUBSCRIBER OR ANY THIRD 20. Indemnification.
PARTIES; OR (c) RESULTING FROM SCHEDULED 20.1 By Subscriber. Intentionally Deleted.
MAINTENANCE PERIODS. NWEA CANNOT 20.2 By NWEA. If all the conditions in this
CONTROL PERFORMANCE OF THE SERVICES section are met, NWEA shall (i) defend Subscriber
BASED ON THE FLOW OF DATA TO OR FROM against claims made by an unaffiliated third party that
NWEA’S NETWORK OR OVER THE INTERNET, the Assessment System infringes its US patent,
WHICH DEPEND IN LARGE PART ON THE copyright, or trademark; and (ii) pay the amount of any
PERFORMANCE OF INTERNET SERVICES resulting adverse final judgment against Subscriber
PROVIDED OR CONTROLLED BY THIRD PARTIES. (after any appeals) or settlement to which NWEA
AT TIMES, ACTIONS OR INACTIONS OF SUCH consents. Subscriber must notify NWEA promptly in
THIRD PARTIES CAN IMPAIR OR DISRUPT writing of the claim. Subscriber must also give NWEA
SUBSCRIBER’S CONNECTIONS TO THE INTERNET. sole control over its defense and settlement. NWEA’s
ALTHOUGH NWEA USES COMMERCIALLY obligations under this Section will not apply to the extent
REASONABLE EFFORTS TO REMEDY AND AVOID the claim (or adverse final judgment) is based on: (a)
SUCH EVENTS, NWEA DOES NOT GUARANTEE Subscriber using the Assessment System after NWEA
THAT SUCH EVENTS WILL NOT OCCUR. has informed Subscriber to discontinue use due to such
ACCORDINGLY, NWEA DISCLAIMS ANY LIABILITY a claim; (b) the combination or use of the Assessment
RESULTING FROM OR RELATED TO SUCH System with non-NWEA information, data, or materials
EVENTS. THE REMEDIES SET FORTH IN THIS except as otherwise authorized in writing by NWEA; (c)
SECTION 18 ARE SUBSCRIBER’S SOLE AND modification of the Assessment System except as
EXCLUSIVE REMEDIES AND NWEA’S SOLE AND otherwise authorized in writing by NWEA; (d) use of
EXCLUSIVE LIABILITY REGARDING THE NWEA’s trademark(s) without express written
PRODUCTS AND SERVICES FAILURE TO permission; or (e) Subscriber’s acts or omissions which
PERFORM AS WARRANTED IN THIS SECTION 18. result in a claim under this Section. If NWEA receives
19. Limitation of Liability. EXCEPT TO THE information about a claim under this Section related to
EXTENT PROHIBITED BY APPLICABLE LAW, IN NO the Assessment System in whole or in part, NWEA may
EVENT IS NWEA LIABLE FOR ANY DAMAGES OR do any of the following, at its discretion and expense: (i)
EXPENSES WHATSOEVER, INCLUDING WITHOUT procure the right to continue its use; (ii) replace the
LIMITATION, DAMAGES FOR LOST PROFITS, LOST infringing portion of the Assessment System with a
OPPORTUNITY, LOST SAVINGS, LOSS OF functional equivalent; (iii) modify the infringing portion of
GOODWILL, LOST BUSINESS, LOSS OF the Assessment System to make it non-infringing (if
ANTICIPATED BENEFITS, BUSINESS NWEA does this, Subscriber will stop using the allegedly
INTERRUPTION, LOSS OF BUSINESS infringing portion of the Assessment System
INFORMATION, LOSS OF OR DAMAGE TO DATA, immediately); or (iv) terminate this Agreement.
COMPUTER FAILURE OR MALFUNCTION, OR ANY Notwithstanding anything to the contrary, NWEA’s
OTHER INDIRECT, SPECIAL, INCIDENTAL, commitment under this Section is Subscriber’s
CONSEQUENTIAL DAMAGES, OR PECUNIARY exclusive remedy for third-party infringement and trade
LOSS, WHETHER BASED IN CONTRACT, TORT, OR secret misappropriation claims. Nothing in this section
OTHERWISE, ARISING OUT OF THE USE OF OR obligates NWEA to indemnify Subscriber from and
INABILITY TO USE THE SERVICES, EVEN IF NWEA against any claims, suits, actions, losses, damages,
HAS BEEN ADVISED OF THE POSSIBILITY OF liabilities, costs and expenses attributable to the acts or
SUCH DAMAGES. NWEA’S ENTIRE LIABILITY omissions of Subscriber, its officers, employees, or
UNDER THIS AGREEMENT IS LIMITED TO THE agents.
AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR 21. Evaluation License. This Section 21 applies if
THE RIGHT TO USE THE PRODUCT IN THE TWELVE NWEA has provided the Services (including but not
MONTHS PRECEDING THE INCIDENT GIVING RISE limited to Assessment System, Reporting, and/or
TO THE CLAIM. THIS LIMITATION ALSO APPLIES Software) to Subscriber for evaluation purposes. NWEA
TO NWEA’S DEVELOPERS AND SUPPLIERS OF grants Subscriber a thirty (30) day (or as otherwise
THE SERVICES AND IS THE MAXIMUM FOR WHICH indicated by NWEA in writing) limited license to use
THEY AND NWEA ARE COLLECTIVELY such Services solely for the purposes of evaluation.
RESPONSIBLE. THE FOREGOING LIMITATIONS NWEA is not obligated to provide support for the
SHALL APPLY NOTWITHSTANDING THE FAILURE evaluation Services. SUBSCRIBER ACKNOWLEDGES
AND AGREES THAT THE SERVICES PROVIDED
FOR EVALUATION MAY FUNCTION FOR A LIMITED
PERIOD OF TIME, HAVE LIMITED FEATURES, AND
HAVE OTHER LIMITATIONS NOT CONTAINED IN A

Master Subscription Agreement - Domestic 5 Last revised on: July 1, 2023
COMMERCIAL VERSION OF THE SERVICES. supersede any inconsistent or different pre-printed
NOTWITHSTANDING ANYTHING TO THE terms of any such order document. If there is a conflict
CONTRARY IN THIS AGREEMENT, NWEA IS among any of the terms of this Agreement, the parties
PROVIDING THE SERVICES “AS IS”, AND NWEA intend that it be resolved by giving precedence to
DISCLAIMS ANY AND ALL WARRANTIES Agreement documents in the following order (i.e. the
INCLUDING ANY IMPLIED WARRANTIES OF earlier listing governing the later): (i) any Supplemental
FITNESS FOR A PARTICULAR PURPOSE, Terms to the extent related to Services described in an
MERCHANTABILITY, AND STATUTORY applicable Schedule; (ii) this Agreement without any
WARRANTIES OF NON-INFRINGEMENT, Schedules or Supplemental Terms; (iii) the most recent
LIABILITES, AND INDEMNIFICATION OBLIGATIONS Schedule; followed by (iv) any other Schedules in
OF ANY KIND. IN THE EVENT OF A CONFLICT reverse chronological order.
BETWEEN THIS SECTION 21 AND OTHER TERMS 22.6 Assignment. Subscriber may not
OF THIS AGREEMENT, THIS SECTION 21 WILL assign this Agreement to any third party without the prior
SUPERSEDE SUCH TERMS WITH RESPECT TO THE written consent of NWEA, which consent shall not be
SERVICES LICENSED TO SUBSCRIBER FOR unreasonably withheld.
EVALUATION PURPOSES. 22.7 Binding. This Agreement binds and
22. Miscellaneous. inures to the benefit of each party and its respective
22.1 Force Majeure. Neither party is liable successors and approved assigns, if any.
for any delay or failure to perform any obligation 22.8 Merger or Sale of NWEA. If either (i)
hereunder due to causes beyond its control, including NWEA and a third-party merge; or (ii) NWEA is sold to
without limitation, war, riot, insurrection, civil a third party, then the surviving or resulting entity shall
commotion, terrorist activity, fire, industrial dispute, act maintain the Student Education Records in accordance
of nature, computer-related crimes (including, but not with this Agreement, if the entity is subject to this
limited to, denial of service attacks), epidemic, Agreement.
pandemic, act or omission of a third-party vendor or 22.9 Representation of Signatories. Each
supplier, equipment failure, public enemy of person signing this Agreement represents and warrants
government, failure of telecommunications, system that such person is duly authorized and has legal
malfunction, or other casualty. capacity to execute and deliver this Agreement for its
22.2 Waiver and Severability. Waiver of respective party.
any default or breach under this Agreement by NWEA 22.10 Notices. Any notice required under
does not constitute a waiver of any subsequent default this Agreement shall be in writing and effective when (i)
or a modification of any other provisions of this delivered personally against receipt, (ii) deposited in the
Agreement. If any part of this Agreement is held illegal mail and registered or certified with return receipt
or otherwise unenforceable by a court of competent requested, postage prepaid, (iii) shipped by a
jurisdiction, the parties intend that the remainder of this recognized courier service and addressed to either party
Agreement nevertheless remains in full force and effect. as designated in this Agreement, (iv) delivered by email
Upon a determination that any term or provision is illegal to an email address designated by the recipient, or (v)
or unenforceable, the court may modify this Agreement when delivered via any of the foregoing at such other
to affect the original intent of the parties as closely as address as may be provided by the recipient in
possible. accordance with this section.
22.3 No Third-party Beneficiaries. The 22.11 Controlling Law and Venue. Unless
parties do not intend to confer any right or remedy on the law of the jurisdiction where Subscriber is domiciled
any third party. requires otherwise, the parties intend that this
22.4 Survival. The following sections Agreement be construed and controlled by the laws of
survive any termination of this agreement or the the State of Georgia, U.S.A., without giving effect to
termination of any license granted under this principles of conflict of laws. Notwithstanding anything
agreement: 1, 3, 4, 5, 6, 7, 8, 9.1, 14, 15, 18, 19, 20.1, to the contrary, the United Nations Convention on
22.2, 22.3, 22.4, 22.5, 22.9, 22.10, 22.11, and 22.12. Contracts for the International Sale of Goods, Uniform
22.5 Entire Agreement; Order of Commercial Code, and Uniform Computer Information
Precedence. This Agreement contains the entire Transactions Act are specifically disclaimed and do not
understanding of the parties regarding the subject apply to this Agreement. Any litigation arising out of this
matter of this Agreement and supersedes all prior and Agreement must be conducted in courts located in
contemporaneous negotiations and agreements, DeKalb County, Georgia.
whether written or oral, between the parties with respect 22.12 Attorney Fees. If any lawsuit is
to the subject matter of this Agreement. The terms of instituted to interpret, enforce, or rescind this
this Agreement apply to all order documents, including Agreement, the prevailing party on a claim may recover,
but not limited to purchase orders and credit card in addition to any other relief awarded, its reasonable
orders, accepted by NWEA, and this Agreement will attorney fees and other fees, costs, and expenses

Master Subscription Agreement - Domestic 6 Last revised on: July 1, 2023
incurred in connection with the lawsuit, the collection of subject to the federal audit requirements of OMB
any award, or the enforcement of any order as Circular A-133. NWEA is an independent contractor,
determined by a judge. and neither NWEA nor its employees are Subscriber’s
22.13 Counterparts. The parties may employees. Nothing contained in this Agreement
execute this Agreement in counterparts, each of which creates or implies an agency relationship, joint venture,
is an original, and the counterparts constitute one and or partnership between the parties.
the same Agreement. The parties may also deliver and 22.15 UK Bribery Act. Each party agrees to
accept facsimile or electronically scanned signatures, comply with the UK Bribery Act. Subscriber
which bind a party as if the signature were an original. acknowledges and agrees that Subscriber has not
22.14 Vendor Status and Independent received, requested, been offered, agreed, paid or
Contractor. NWEA provides Services within its normal promised, any offer, promise or gift of any financial or
business operations and operates in a competitive other advantage from and to any person that would
environment. The Services constitute a vendor constitute a violation under the UK Bribery Act, or which
relationship, as defined by OMB Circular A-133 and, would have influenced or secured any business or other
therefore, any monies to pay for this Agreement are not advantage to NWEA.

Agreed by:

NWEA, a division of Houghton Mifflin Harcourt DeKalb County School District:
Publishing Company:

By: By:

Printed Name: William Bayers Printed Name:

Title: EVP & General Counsel Title:

Date: July 6, 2023 Date:

Master Subscription Agreement - Domestic 7 Last revised on: July 1, 2023

Agenda Item