Updated as of May 26, 2024

Terms of Purchase

These Terms of Purchase (these “Terms”) govern a Customer’s acquisition and use of Services provided by ProctorU, Inc. d/b/a/ Meazure Learning, a Delaware corporation (“Meazure Learning”), as specified on a Statement of Work (“SOW”) entered into in writing by and between Meazure Learning and the Customer legal entity set forth on the applicable SOW (“Customer”).  Meazure Learning and Customer are each referred to in these Terms as a “Party” or, collectively, as the “Parties.”

1. Definitions. Unless otherwise defined in these Terms, capitalized terms used in these Terms shall have the meanings set forth in Section 15.

2. Services.

2.1 Meazure Learning provides test development, administration, and delivery services that combine professional services delivery with technology to deliver live-proctored remote, test center, hybrid, and event-based services that adapt to the unique needs of each exam program and test-taker.  Meazure Learning desires to provide Customer the services set forth on an applicable SOW to be delivered to Customer by Meazure Learning or by an Affiliate of Meazure Learning as indicated on the applicable SOW (collectively, the “Services”).

2.2 Customer desires to purchase, access and use Services offered by Meazure Learning as set forth on an applicable SOW. Meazure Learning will make the Services available to Customer in accordance with these Terms and the terms of an applicable SOW entered into by and between Customer and Meazure Learning or between Customer and an Affiliate of Meazure Learning.

2.3 Customer may enter into a SOW with an Affiliate of Meazure Learning and in such case, all terms of the Agreement and any obligations, rights, and remedies contained in the Agreement shall be deemed to apply to such Affiliate as the applicable service provider for that SOW.  If an Affiliate of Customer uses the Services under a SOW entered into by that Customer with Meazure Learning, Customer shall be responsible for the conduct of that Affiliate and any breach by such Affiliate of the Agreement.

2.4 Meazure Learning and Customer each agree to abide by the provisions contained in these Terms and in any other agreements or policies linked within these Terms, including the provisions of the Data Protection Addendum available at https://www.meazurelearning.com/data-processing-addendum (“DPA”). The DPA and each SOW are incorporated by reference into these Terms and herein are collectively referred to with the Terms as the “Agreement”.

3. Customer Obligations.

3.1 Customer shall

(a) cooperate with Meazure Learning in all matters relating to the Services and appoint a single Customer employee to serve as the primary contact with respect to the Agreement who will have the authority to act on behalf of Customer with respect to matters pertaining to the Agreement;

(b) respond promptly to any Meazure Learning request to provide information, direction, approvals, authorizations, or decisions that are reasonably necessary for Meazure Learning to perform the Services; and

(c) comply with all laws that apply to the Services.

3.2 If Meazure Learning’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or employees, contractors, representatives, or agents (collectively, “Customer Personnel”), Meazure Learning shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any Losses (as defined below), to the extent arising directly or indirectly from such prevention or delay.

4. Fees and Payment.

4.1 Fees. Customer agrees to pay to Meazure Learning the amount of all prices, fees, payments, costs or expenses set forth in an applicable SOW (collectively, the “Fees”).  All Fees shall be due and payable thirty (30) days from invoice date in accordance with the pricing and terms set forth in each SOW (each, a “Due Date”).  If any Fees are in dispute, Customer shall provide Meazure Learning written notice within fifteen (15) days of the invoice date of any disputed amounts. 

4.2 Purchase Orders. If Customer’s internal processes require that it issue a purchase order (a
“PO”) for payment of invoices, such PO shall be provided to Meazure Learning within fifteen (15) days of the SOW effective date.  If the foregoing requirements are not met, no Services will be scheduled or delivered by Meazure Learning until the applicable PO is received. If the applicable PO is not received by Meazure Learning within thirty (30) days after the applicable SOW effective date, all future invoices will be payable thirty (30) days from invoice date without the requirement of a PO. Meazure Learning may waive the requirements of this Section in writing in its sole discretion.

4.3 Late Payments.

(a) If payments for undisputed Fees are not received by Meazure Learning by the applicable Due Date, Meazure Learning may charge interest on any unpaid amount at the rate of three percent (3%) per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid.

(b) Customer shall reimburse Meazure Learning for all costs incurred in collecting any late payments, including, without limitation, attorneys’ or collections agency fees.

(c) In addition to all other remedies available under this Agreement or under applicable law (which Meazure Learning does not waive by the exercise of any rights hereunder), Meazure Learning shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed Fees when due. Customer’s failure to pay any undisputed Fees owing within thirty (30) days of invoice date shall be deemed to be a material breach of the Agreement.  

4.4 Customer agrees to reimburse Meazure Learning for all actual and documented travel and out-of-pocket expenses incurred by Meazure Learning in connection with the performance of the Services (including meals, lodging and taxes).  All such expenses shall be invoiced to Customer on a monthly basis in arrears.

4.5. Each Party shall perform its obligations under the Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by the other Party whether under the Agreement, applicable law, or otherwise and whether relating to such other Party’s breach, bankruptcy, or otherwise.

4.6 Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any foreign, federal, state, or local governmental entity on any amounts payable by Customer, including any foreign supplier withholding taxes or charges (collectively, “Taxes”).  All Fees are exclusive of any Taxes. Any Taxes currently assessed, or that may be assessed in the future, that are applicable to the Services are for Customer’s account, and Customer hereby agrees to pay such Taxes. In the event Customer is tax-exempt, Customer shall furnish Meazure Learning with its current tax exemption certificate within five (5) days of execution of an applicable SOW. Customer shall indemnify, defend and hold Meazure Learning harmless from all claims, liability and expense arising out of Customer’s failure to pay any Taxes; provided, however, in no event shall Customer pay or be responsible for any Taxes imposed on Meazure Learning’s income or gross receipts.

4.7 The Parties agree that from and after the first anniversary of the Effective Date (as defined below), Meazure Learning is entitled to increase any Fees specified in an SOW without notice to Customer, provided that: (a) such increases shall occur no more frequently than once per twelve (12)-month period per SOW, and (b) the amount of any such increase shall be five percent (5%) of the applicable Fees.

5. Term and Termination.

5.1 The Agreement will commence on the date the Parties execute a SOW referencing these Terms or on the date Customer uses or accesses any free Services (the “Effective Date”) and will continue thereafter for so long as Meazure Learning is delivering Services (the “Term”), unless terminated earlier pursuant to this Section 5.

5.2 Meazure Learning may terminate the Agreement and/or any one or more SOWs, effective upon written notice to Customer, if Meazure Learning has not delivered Services pursuant to a SOW for a period of six (6) consecutive months. The Parties may prevent such termination by mutual agreement in writing. 

5.3 Either Party may terminate the Agreement and/or any one or more SOWs, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:

(a) except as provided in Section 5.3(b) below, materially breaches the Agreement, and such breach is incapable of cure or, with respect to a breach capable of cure (other than a payment default of Customer governed by Section 5.3(b) below), the Defaulting Party does not cure such breach within sixty (60) days after receipt of written notice of such breach, provided that if such breach is not reasonably susceptible of cure within the initial sixty (60)-day period the cure period shall be extended to the time reasonably necessary to cure the default by the Defaulting Party so long as the Defaulting Party is pursuing such cure in good faith, which in no event shall exceed one hundred and twenty (120) days from the written notice of such breach;

(b) fails to pay Fees as and when due to Meazure Learning under the Agreement; or

(c) (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law (and such proceeding is not dismissed within sixty (60) days), (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property or business.

5.4 Upon termination of the Agreement by either Party, for any reason, any Fees or expenses unpaid by Customer will be immediately due and payable, all license rights granted by Meazure Learning to Customer will immediately cease to exist, and Customer will immediately cease any and all use of any software and destroy or erase all copies thereof. Thereafter, Meazure Learning will submit an invoice to Customer for any amounts due that have not yet been paid, and Customer agrees to pay such invoice immediately upon receipt.

5.5 The expiration or termination of the Agreement or any component thereof, for any reason, shall not release either Party from any obligation or liability to the other Party, including any payment and delivery obligation, that: (i) has already accrued under the Agreement; (ii) comes into effect due to the expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of the Agreement.

6. Intellectual Property.

6.1 Ownership.

(a) Customer retains all rights, title, and interest in and to any Customer Materials, including all Intellectual Property Rights. Customer represents and warrants that Customer has all rights, title, and authority necessary to provide Meazure Learning with the Customer Materials for use in performing the Services in accordance with the Agreement.

(b) Customer acknowledges and agrees that Meazure Learning retains all rights, title, and interest in and to (i) the Services, the Meazure Learning Materials, and any applicable Meazure Learning Platform regardless of whether any of the foregoing are created by or for or licensed to Meazure Learning, (ii) any updates, upgrades, improvements, modifications, or derivative works of any of the foregoing whether now existing or later developed, and (iii) all information, materials, and data included in the foregoing or derived therefrom and the form, format, mode, or method of compilation, selection, configuration, presentation, or expression thereof, ((i), (ii) and (iii) collectively, “Meazure Learning Intellectual Property”), including all Intellectual Property Rights in any of the foregoing.

(c) Meazure Learning Intellectual Property shall include any Feedback provided by Customer or Customer Personnel. Customer hereby assigns to Meazure Learning on Customer’s behalf, and on behalf of Customer Personnel all right, title, and interest in and to any Feedback, and Meazure Learning is free to use, without any attribution or compensation to any other person, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in Feedback, for any purpose whatsoever, provided that Meazure Learning is not required to use or incorporate any Feedback.

(d) All other rights in and to Meazure Learning Intellectual Property not expressly granted to Customer in the Agreement are expressly reserved by Meazure Learning. Customer shall have in place and maintain commercially reasonable technical and organizational measures designed to protect all Meazure Learning Intellectual Property against unauthorized access, disclosure, or distribution.

6.2 Meazure Learning Platform.

(a) As part of the Services set forth in an applicable SOW, Customer and its users may be granted access to and use of a Meazure Learning Platform. If access to and use of a Meazure Learning Platform is granted by Meazure Learning, Meazure Learning grants to Customer and its users a non-exclusive, royalty-free, non-transferable and non-assignable license to access and use the applicable Meazure Learning Platform under the terms and conditions set forth in the applicable SOW, and this Agreement (including the Terms of Service and Privacy Policy).

(b) Customer shall not publish, disclose, rent, lease, modify, loan, distribute, alter, or create derivative works based on any Meazure Learning Platform or any part thereof. Customer shall not reverse engineer, decompile, translate, adapt, or disassemble any Meazure Learning Platform, nor shall Customer attempt to create the source code from the object code for any Meazure Learning Platform.

(c) Customer shall (i) be responsible for Customer’s users’ compliance with the Agreement, (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer’s data and of the means by which Customer acquires or has acquired Customer’s data, (iii) not store or transmit infringing, libelous, or otherwise unlawful or tortious material or malicious code, or store or transmit material in violation of third-party privacy rights, (iv) not sell, resell, rent, or lease the Meazure Learning Platform, (v) use commercially reasonable efforts to prevent unauthorized access to or use of the Meazure Learning Platform, and notify Meazure Learning promptly of any such unauthorized access or use, (vi) not interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (vii) not attempt to gain unauthorized access to the Meazure Learning Platform or its related systems or networks, and (viii) use the Meazure Learning Platform only in accordance with the Agreement and all applicable laws and regulations.

(d) Access to a Meazure Learning Platform depends on third parties such as internet service providers. Meazure Learning will have no liability to Customer for any loss suffered resulting directly or indirectly from: (i) failures of performance on the part of a third-party internet service provider, or (ii) failures of performance due to Customer’s or its users’ technical or computer equipment.

(e) Notwithstanding anything to the contrary in these Terms, Customer authorizes Meazure Learning to collect and compile data, insights, and information to develop, improve, operate, and support its products and services, as well as create benchmarks (“Aggregated Research Data”). As between Customer and Meazure Learning, all right, title, and interest in Aggregated Research Data, and all Intellectual Property Rights therein, belong to and are retained solely by Meazure Learning. Meazure Learning restricts access to Aggregated Research Data to Meazure Learning personnel involved in research and/or development supporting or related to Meazure Learning products and services. Aggregated Research Data will not identify Customer or Customer Confidential Information (as defined in Section 15) or contain any Personal Data (as defined in the DPA), whether directly or indirectly.

7. Confidentiality.

7.1 Each Party acknowledges and agrees that, during the Parties’ relationship with one another, one Party may disclose, entrust, or give access to (“Disclosing Party”) the other Party (“Receiving Party”) certain of Disclosing Party’s Confidential Information.

7.2 Confidential Information shall be deemed not to include any information (a) that is or becomes publicly available other than directly or indirectly through a violation of the Agreement, (b) that was known to Receiving Party prior to the disclosure by Disclosing Party, (c) that Receiving Party lawfully receives from a third party not known by such Receiving Party to be bound by any confidentiality agreement with Disclosing Party in respect of such Confidential Information, or (d) that is independently developed by Receiving Party, without reference to or use of such Confidential Information.

7.3 Receiving Party will not use Disclosing Party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not disclose such Confidential Information to any third party except to those of its employees, Affiliates, subcontractors and/or professional advisors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee, Affiliate, subcontractor and/or professional advisor is bound by a written agreement or professional confidentiality obligations that contain use and disclosure restrictions consistent with the terms set forth in this Section 7.

7.4 Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use and disclosure using efforts at least equivalent to those that Receiving Party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care. Notwithstanding anything to the contrary in this Section, Receiving Party may disclose such Confidential Information as required by applicable laws, subject to Receiving Party being required to make such disclosure giving reasonable notice (if legally permitted to do so) to Disclosing Party to enable it to contest such order or requirement or limit the scope of such request. The provisions of this Section 7 will supersede any non-disclosure agreement by and between the Parties (whether entered into before, on or after the Effective Date).

7.5 Receiving Party shall be responsible for any unauthorized use or disclosure of Disclosing Party’s Confidential Information by Receiving Party’s employees, Affiliates, subcontractors or any other person or entity (in each case, only to the extent that such person or entity has received the Confidential Information directly or indirectly from Receiving Party) to the same extent that Receiving Party would be responsible for such unauthorized disclosure or use under the Agreement.

7.6 Receiving Party acknowledges that it shall not acquire any express or implied rights, title, or interest in Disclosing Party’s Confidential Information, which shall at all times be deemed to remain the sole and exclusive property of Disclosing Party.

7.7 Meazure Learning acknowledges and agrees that Confidential Information of Customer may include information for which collection, disclosure, protection, and disposition is governed by state or federal law or regulation, particularly information subject to the U.S. Family Educational Rights and Privacy Act (FERPA), the Personal Information Protection and Electronic Documents Act (PIPEDA), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the California Consumer Privacy Act (CCPA), Payment Card Industry Data Security Standards (PCI/DSS), and General Data Protection Regulation (GDPR) (collectively, “Regulated Customer Confidential Information”).

7.8 Upon termination of the Agreement, at Disclosing Party’s request, Receiving Party agrees to promptly return or destroy all Disclosing Party’s Confidential Information, and all copies, summaries and extracts thereof, held in whatever form. Notwithstanding the foregoing, Receiving Party may retain Disclosing Party Confidential Information (a) as required by law or its bona fide compliance procedures, and (b) in electronic format created pursuant to standard electronic back-up and archival procedures. All Disclosing Party Confidential Information retained pursuant to the foregoing clause (b) shall only be accessed as reasonably necessary for the performance of information technology duties (e.g., for purposes of system recovery). If Disclosing Party Confidential Information is retained under the foregoing clauses (a) or (b), all such Disclosing Party Confidential Information shall remain subject to the confidentiality and use obligations of the Agreement for so long as such Disclosing Party Confidential Information is so retained. Upon request, Receiving Party will confirm to Disclosing Party in writing the completion of any return or destruction of Disclosing Party Confidential Information in accordance with the terms and conditions of the Agreement.

7.9 Each Party’s obligations under this Section 7 will survive termination or expiration of the Agreement for a period of three (3) years, except for Confidential Information that (a) constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law, (b) constitutes Regulated Customer Confidential Information, in which case, such obligations shall survive termination or expiration of the Agreement for the period of retention set forth in the applicable law or regulation, or (c) is retained pursuant to, and in accordance with, the terms and conditions of Section 7.8.

8. Data Privacy. Each of the Parties acknowledges and agrees that it is committed to complying with applicable Data Protection Laws (as defined in the DPA) and that the terms of the DPA available at https://www.meazurelearning.com/data-processing-addendum are specifically incorporated by this reference into the Agreement and made a part of the Agreement. Each of the Parties further acknowledges and agrees that a signature of an applicable SOW referencing these Terms constitutes any signatures required by such Party with respect to the DPA or with respect to the Standard Contractual Clauses referenced in the DPA.

9. Links and Integrated Partnerships.

9.1 Links.

(a) The Services may contain links to third-party websites or resources outside of Meazure Learning’s control. By using the Services, Customer acknowledges and agrees that Meazure Learning is not responsible or liable for: (i) the availability or accuracy of such websites or resources, or (ii) the content, products, or services on or available from such websites or resources. The inclusion of links to such websites or resources does not imply Meazure Learning’s endorsement of such websites or resources or the content, products, or services available therein. By using the Services, Customer acknowledges that it is solely responsible for and assumes all risk arising from Customer’s use of any such third-party websites or resources.

(b) Customer may provide a link to the Services, provided such link is fair and legal and does not damage Meazure Learning’s reputation and such link does not suggest any form of association, approval, or endorsement from Meazure Learning unless Meazure Learning has provided advance written permission of publication of such association, approval, or endorsement. Subject to the foregoing, Customer shall not:

(i) establish a link to the Services from any website that is not owned by Customer;

(ii) cause the Services or any portions of the Services to be displayed, or appear to be displayed, by any other site, for example, framing, deep linking, or in-line linking, on any other site; or

(iii) otherwise take any action with respect to the Services that is inconsistent with any other provision of the Agreement.

(c) Customer agrees to cooperate with Meazure Learning and immediately cease any linking when directed to do so by Meazure Learning. Meazure Learning reserves the right to withdraw linking permission without notice.

9.2 Integrated Partnerships. Customer acknowledges that any third-party application, service, or program that is integrated into the Services (“Integrated Partnership”) is not part of the Services. Meazure Learning does not warrant and/or make any representations as to the effectiveness, sufficiency, and or safety of any Integrated Partnerships. By using the Services, Customer acknowledges that it is solely responsible for and assumes all risk arising from Customer’s use of Integrated Partnerships and that any products, services, programs, services, and/or systems offered by an Integrated Partnership are not Meazure Learning’s products, services, programs, and/or systems.

10. Disclaimer of Warranties. MEAZURE LEARNING IS PROVIDING SERVICES AND THE DATA AND INFORMATION INCLUDED THEREIN ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, AND (A) NEITHER MEAZURE LEARNING, NOR ANY OTHER PERSON ON MEAZURE LEARNING’S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY MEAZURE LEARNING, OR ANY OTHER PERSON ON MEAZURE LEARNING’S BEHALF, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

11. Limitations of Liability.

11.1 IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, MEMBERS, DIRECTORS, MANAGERS, OFFICERS, OR EMPLOYEES (COLLECTIVELY, “RELATED PARTIES”) BE LIABLE UNDER THE AGREEMENT TO THE OTHER PARTY, ITS RELATED PARTIES OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

11.2 IN NO EVENT SHALL MEAZURE LEARNING’S AGGREGATE LIABILITY TO CUSTOMER OR ANY CUSTOMER RELATED PARTIES FOR ANY CAUSES OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, RELATING TO, ARISING FROM OR IN CONNECTION WITH THE SERVICES OR THE AGREEMENT, EXCEED THE AMOUNT ACTUALLY PAID TO MEAZURE LEARNING FOR THE SERVICES UNDER THE APPLICABLE SOW(S) IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIMS.

12. Indemnification and Insurance. Subject to the other terms and conditions of the Agreement:

12.1 To the extent permitted by law, Meazure Learning shall indemnify, defend, and hold harmless Customer, and Customer’s Related Parties (each, a “Customer Indemnified Party”) from all lawsuits, actions, claims, damages, liabilities, assessments, losses, deficiencies, judgments, interests, awards, penalties, fines, costs, or expenses of any character (including reasonable attorney’s fees) (collectively, “Losses”) based on a claim that any of the Services or Meazure Learning Intellectual Property or Customer’s receipt or use thereof infringes any intellectual property right of a third party arising under the laws of the United States or any other applicable jurisdiction; provided, however, that Meazure Learning shall have no obligations under this Section 12.1 with respect to Losses arising out of: (a) any Customer Materials, (b) use of the Meazure Learning Intellectual Property in combination with any materials or equipment not supplied to Customer or specified in writing by Meazure Learning, and (c) any modifications or changes made to the Services by or on behalf of any person other than Meazure Learning.

12.2 To the extent permitted by law, Customer shall indemnify, defend, and hold harmless Meazure Learning, and Meazure Learning’s Related Parties (each, a “Meazure Learning Indemnified Party”) from all Losses (a) based on a claim that any Customer Materials or Meazure Learning’s receipt or use thereof infringes any intellectual property right of a third party arising under the laws of the United States or any other applicable jurisdiction, (b) use of the Meazure Learning Intellectual Property in combination with any materials or equipment not supplied to Customer or specified in writing by Meazure Learning, and (c) any modifications or changes made to the Services by or on behalf of any person other than Meazure Learning.

12.3 If Meazure Learning receives information about an infringement claim related to the Services, then Meazure Learning may at its sole option and expense: (a) replace or modify the applicable Services to make them non-infringing, (b) procure for Customer the right to continue using the Services under the terms of the Agreement, or (c) if Meazure Learning is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate Customer’s rights and Meazure Learning’s obligations under the Agreement with respect to such Services and refund any Fees prepaid by Customer to Meazure Learning for Services not yet provided.

12.4 Meazure Learning will maintain commercially appropriate insurance coverage given the nature of the Services and Meazure Learning’s obligations under the Agreement. Such insurance will be in an industry standard form with licensed insurance carriers with A.M. Best ratings of A-IX or better and will include commercially appropriate cyber liability insurance coverage. Upon written request, Meazure Learning will provide Customer with certificates of insurance evidencing such coverage.

13. Subcontract. Except as otherwise provided in the DPA, Meazure Learning may subcontract or delegate any of its obligations under the Agreement to any subcontractors, affiliates, or delegates in its sole discretion. In the event of any such subcontracting, Meazure Learning will use commercially reasonable efforts to subcontract only with persons that have the requisite skills to perform any subcontracted obligations consistent with the terms of the Agreement.

14. Miscellaneous.

14.1 Marketing and Advertising. Customer hereby authorizes and gives permission for Meazure Learning and Meazure Learning’s Affiliates to use, on a non-exclusive and royalty-free basis, the legal, trade or fictitious names, logos, trademarks, and/or personal quotes of Customer or its Affiliates (the “Logos”) in connection with promotional materials that Meazure Learning may disseminate relating to Meazure Learning’s relationship with Customer.

14.2 Notices. Unless notified in writing of a change of address, Customer will send any required notice under this Agreement to Meazure Learning, 7901 Jones Branch Drive, Suite 330, McLean, VA 22101 USA, ATTN: CHIEF COMPLIANCE OFFICER, and Meazure Learning will send any required notice to Customer directed to the address set forth in a SOW or the most recent address Customer has provided to Meazure Learning for such notice. Except with respect to any notices pertaining to litigation, breach of the Agreement, failure to comply with applicable law or other material breach of a Party’s obligations to the other Party, Customer may also send notices to [email protected] and Meazure Learning may also send notices to Customer by using the last primary contact email.

14.3 Entire Agreement. The Agreement constitutes the entire agreement between the Parties and shall supersede any and all prior or contemporaneous oral and written communications, understandings, or agreements relating to the subject matter of the Agreement. The Agreement or any component thereof may only be amended or modified in a writing that specifically states that it amends the Agreement or such component thereof and is signed by an authorized representative of each Party. In the event of any conflict between the various portions of the Agreement, the following order of precedence shall govern: (a) first, the DPA, (b) second, these Terms, (c) third, the applicable SOW, and (d) fourth, the Terms of Service.  For the avoidance of doubt, Meazure Learning is deemed to have refused any provisions in POs, invoices or other documents or statements from Customer that purport to alter or have the effect of altering any provision of the Agreement, and such refused provisions shall be unenforceable.

14.4 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party, or make any warranties, representations, or guaranties on behalf of such other Party, in any manner whatsoever.

14.5 Third-Party Beneficiaries. Except as set forth in Section 12 with respect to Related Parties and Section 2.3 with respect to Affiliates of Meazure Learning, the Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein, express, or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. 

14.6 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to, or in the case of a judicial or regulatory proceeding, the court or regulatory body may modify this Agreement to, give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.7 Assignment. Customer will not assign the Agreement, or any SOW, in whole or in part, without Meazure Learning’s prior written consent. Meazure Learning may assign the Agreement, in whole or in part (including any of its rights and obligations under the Agreement or any SOW), to any of its Affiliates, or in connection with any merger, consolidation, reorganization, or sale of all or substantially all of its assets or any similar transaction. All the terms and conditions of the Agreement (including any SOW) will be binding upon, will inure to the benefit of, and will be enforceable by each of the Parties, or in the case of Meazure Learning, its Affiliates, and their respective successors and permitted assigns. Any attempted assignment, transfer, or other conveyance in violation of this Section shall be null and void.

14.8 No Waiver. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights or remedies shall operate or be construed as a waiver of such rights or remedies; nor shall any single or partial exercise of any right, or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.

14.9 Force Majeure.

(a) Neither Party will be liable for a delay or failure to perform its obligations pursuant to the Agreement, due to and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control including, without limitation, the following force majeure events (each a “Force Majeure Event”): (i) acts of God, (ii) acts of government, including any changes in laws or regulations, (iii) acts or omissions of third parties, (iv) flood, fire, earthquakes, civil unrest, wars, acts of terror, or strikes or other actions taken by labor organizations, (v) government ordered shutdown due to pandemic, (vi) computer, telecommunications, Internet, Internet service provider or hosting facility failures or delays involving hardware, software, or power systems not within the Impacted Party’s possession or reasonable control, (vii) network intrusions or denial of service attacks, or (viii) any other cause, whether similar or dissimilar to any of the foregoing.

(b) Notwithstanding the foregoing, the Impacted Party shall be required to prevent or address the impact from a Force Majeure Event with due planning and reasonable alternatives to performance or receipt of Services.  This Section 14.9 does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or payment obligations for Services that have been rendered prior to the date of the Force Majeure Event. 

(c) The Impacted Party shall give notice within fifteen (15) calendar days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use commercially reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the Force Majeure Event.

14.10 Governing Law.  With respect to an Agreement entered into by and between Customer and ProctorU, Inc. d/b/a Meazure Learning, such Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware in the United States. With respect to an Agreement entered into by and between Customer and Yardstick Assessment Strategies, Inc., such Agreement shall be governed by and construed in accordance with the internal laws of the province of New Brunswick Canada. Each of the Parties hereby irrevocably consents to the personal jurisdiction and venue of the courts in the venues shown above. Unless prohibited by governing law or venue, each Party irrevocably agrees to waive jury trial. In all cases, the application of law will be without regard to, or application of, conflict of law rules or principles.

14.11 Equitable Relief. Each Party acknowledges and agrees that the other Party may be irreparably harmed in the event of certain breaches of the Agreement and that monetary damages alone cannot fully compensate the non-breaching Party for such harm. Accordingly, each Party agrees that the non-breaching Party will be entitled to seek injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained will be in addition to, and not foreclose, any other remedies that may be available.

14.12 Interpretation. The division of the Agreement and its components into sections and exhibits and the insertion of headings are for convenience of reference only and shall not affect the interpretation or construction of the same. In the Agreement, the use of the singular shall include the plural and vice versa. All references to days in the Agreement are deemed to refer to calendar days unless otherwise specified. The Parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to the Agreement, and therefore waive their effects. It is the expressed wish of the Parties that the Agreement and any component thereof be drafted and executed in English. Les parties conviennent que la présente entente et tous les documents qui s’y rattachent seront rédigés en anglais et constitueront la version officielle à signer.

14.13 Survival. The provisions contained in the Agreement that by their sense and context are intended to survive the expiration or termination of the Agreement will survive such expiration and termination.

14.14 Updates. Customer acknowledges and agrees that Meazure Learning updates and upgrades its offerings of Services and features and, Meazure Learning may, at any time, or from time to time, without notice, modify, update, replace, or otherwise change the Services and/or format of the Services, and the provisions of these Terms; provided that such modifications, updates, replacements or other changes (a) do not negatively and materially affect the purpose of the Services, or (b) are reasonably necessary to comply with any applicable legal requirement.

14.15 Counterparts. Any SOW may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A Party’s electronic signature or transmission of any document by electronic means will be deemed to bind such Party as if signed and transmitted in physical form.

15. Definitions.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the power, directly or indirectly, to direct the management and policies of the subject entity, whether through the ownership of voting securities, by contract, or otherwise.

“Confidential Information” means non-public information of a Party that should reasonably be understood by the circumstances of disclosure or the nature of the information itself to be such Party’s proprietary and confidential information, including but not limited to, (i) as to Customer, Customer Materials, (ii) as to Meazure Learning, Meazure Learning Intellectual Property and the Agreement (including any pricing or Fees), and (iii) as to either Party, its business or operational plans and strategies; pricing, product, or services information; technologies and software; information concerning current, former or prospective students, employees, customers, vendors, licensees, licensors, and relationships with each of the foregoing; and any other information of a confidential nature relating to a Party’s business that is disclosed by a Party to the other Party or that otherwise comes to the attention of a Party due to its relationship with the other Party. 

“Customer Materials” means any materials that Customer provides or makes available to Meazure Learning in connection with Meazure Learning’s performance of the Services including, without limitation (a) any instruction, instructional materials, information, designs, specifications, or any other materials (including any exam delivery or monitoring instructions or instructions for accommodation of disability or otherwise); and (b) any technical data, Customer data, end-user data, operational data, or exam content provided by Customer to Meazure Learning.

“Feedback” means new features or functionality relating to Meazure Learning Intellectual Property and any other improvements developed with the assistance of Customer or Customer Personnel as a result of comments, suggestions, or recommendations of Customer or Customer Personnel.

“Intellectual Property Rights” means protectable intellectual property such as patents and applications, copyrights, trademarks, trade secrets, mask works, design rights, rights of priority, know how, design flows, methodologies, and any and all other legal rights protecting intangible proprietary information in any jurisdiction in the world.

“Meazure Learning Materials” means, without limitation, all documentation and materials provided by Meazure Learning or its Affiliates to Customer as part of the Services, regardless of delivery method including, but not limited to, training materials, documents, information, and virtual content.

“Meazure Learning Platform” means Meazure Learning’s proprietary technology, software and tools, and any and all related and underlying documentation or technology, including, but not limited to, products, software tools, algorithms, know-how, processes, methodologies, databases, and architecture.