Last Updated: April 4, 2024
This Services Agreement ("Agreement") is by and between Territorium, Inc. (hereinafter "TERRITORIUM" or "We") and the entity name registered in the Territorium system (hereinafter "Testing Institution"). The Testing Institution agrees to these terms through the purchase of one or more Territorium Assessment Services assessment products (hereinafter the “Test” or “Tests”).
The TERRITORIUM Tests measure certain skills, competencies and/or academic domain proficiency. The Tests are designed for use as a measure of certain skills, competencies and/or academic domain proficiency; the Tests are not designed to be used as the sole criteria for individual assessment.
Upon payment to TERRITORIUM for the Tests, the Testing Institution shall receive the limited right to access the purchased Tests, Test Taker and Administration results, and documentation and hereby agrees to comply with these terms and conditions for all subsequent use of the Tests hereunder, unless and until the terms of this Agreement change, at which time the Testing Institution will be prompted to review such revised terms in order to continue use of the Tests.
Terms and Conditions
1. Testing Institution's Responsibilities.
a. User ID, Password and Security: TERRITORIUM will issue to the Testing Institution by electronic mail an ID, and password. The Testing Institution is responsible for maintaining the confidentiality of the ID and password, and for all charges and/or liabilities associated with the ID. Until TERRITORIUM is notified of any unauthorized use of your ID, you are responsible for any unauthorized charges made on or through your ID. You may not transfer your ID to another person or entity.
b. Facilities, Equipment, and Supplies: The Testing Institution shall designate an administrator ("Administrator") (technical administrator, staff or faculty member, assessment coordinator, human resources administrator or other designee) to administer the Tests and shall ensure that the Administrator administers the Tests in accordance with instructions and security procedures. Computers used for testing are required to meet minimum specifications for the Tests being administered as described in the Recommended Environment in the Success Center.
c. Staffing and Support: The Testing Institution agrees to provide trained staff persons, proctors, or their designees to coordinate arrangements for and operation of test sessions.
d. Scheduling Tests: The Testing Institution agrees to schedule testing sessions and register Test Takers in accordance with procedures described in the Success Center.
e. Data/Communications Link/Transmissions: The Testing Institution will secure and maintain all Internet service connections for data transfer and a valid e-mail address for communications and shall be solely responsible for paying all costs associated therewith.
f. Testing Institution Account Administration: The Testing Institution shall designate at least one or more Authorized Users to act as a principal point of contact with Territorium for purposes of this Services Agreement.
2. TERRITORIUM's Responsibilities.
a. Technical Support: Technical support, through direct telephone or e-mail contact, is available from 8:00 a.m. to 6:00 p.m. ET, Monday through Friday, with the exception of regularly scheduled business holidays as posted to the Success Center. Notice of any expansion or reduction in the hours of operation will be provided to the Testing Institution by TERRITORIUM. Technical support is available to Administrators with questions regarding test administration policies and procedures or problems for resolution. TERRITORIUM shall make commercially reasonable efforts to ensure that access to the Tests is available from 8:00 a.m. to 6:00 p.m. ET, Monday through Friday, other than maintenance periods and for causes beyond TERRITORIUM's control.
b. Official Test Results: For forms where the scoring and equating process is complete, the Testing Institution will receive access to view and download official results for Test Takers and Test Administrations. For unscored forms, the Testing Institution will not have access to view and download official results for Test Takers and Test Administrations until a sufficient number of assessments have been administered and the scoring and equating process has been completed. The Testing Institution may provide Test Takers with the option to receive their results at the end of the Test session.
3. Confidentiality. The Testing Institution acknowledges and agrees that by entering this Agreement, and in the course of test administrations, certain information, which is proprietary and confidential to TERRITORIUM and/or its licensors, shall be disclosed to the Testing Institution, its Administrators and employees. Such proprietary and confidential information (the "TERRITORIUM Proprietary and Confidential Information") shall include, but is not limited to, the Test and all individual Test questions, all technology and software related to the Test program, all data to be collected from Test Takers, the identities of the Test Takers, the internal TERRITORIUM guidelines for the secure administration of the Test and any other information identified by TERRITORIUM to the Testing Institution as proprietary and confidential. The Testing Institution agrees that it will not disclose the TERRITORIUM Proprietary and Confidential Information to any third party without TERRITORIUM's prior written consent. The Testing Institution agrees that it will take the same level of care and the same precautions to protect and maintain the security of TERRITORIUM Proprietary and Confidential Information as the Testing Institution takes to protect its own confidential and proprietary information. The Testing Institution also agrees that it will disclose the TERRITORIUM Proprietary and Confidential Information only to employees and agents of the Testing Institution with a "need to know" such information. In order to ensure security of test administrations, TERRITORIUM reserves the right to visit and monitor Test Site operations during scheduled test administrations, including pre - and post - testing periods.
With respect to any personally-identifiable student data collected, TERRITORIUM shall maintain such data in confidence and in accordance with any applicable data protection statutes, including, but not limited to, FERPA, and shall not disclose such data publicly or to any other third parties except in an aggregated, de-identified manner.
4. Ownership. The Testing Institution acknowledges and agrees that TERRITORIUM and/or its licensors hold all proprietary rights, including but not limited to, all patents, patent applications, copyrights, trademarks, trade secrets and all other intellectual property rights in the Test, individual test questions, the Manual(s), all related secure test administration or operational procedures, and any other materials developed by TERRITORIUM and provided to and/or used by the Testing Institution to perform its responsibilities under this Agreement ("TERRITORIUM-Owned Technology and Materials"). The Testing Institution further acknowledges and agrees that certain third parties may hold intellectual property rights, either separately or jointly, in any third-party owned software that may be used to provide the Test. The Testing Institution understands and agrees that, except for the sole purpose of performing its responsibilities under this Agreement, no proprietary rights in such materials are granted to the Testing Institution except for the right to use and access the Test, the TERRITORIUM-Owned Technologies and Materials, and any third-party owned software. The Testing Institution agrees that it will not reproduce, modify, distribute, sell, resell, lease, sub-license, transfer, disclose, or create derivative works based upon any of the TERRITORIUM-Owned Technology and Materials or third-party software and materials associated therewith. The Testing Institution further agrees that it will not reverse-engineer, decompile, disassemble, or in any way attempt to create the source code from any TERRITORIUM or any associated third-party software. The Testing Institution shall not use the TERRITORIUM-Owned Technology and Materials for the benefit of any third parties or as a service bureau without prior written consent of TERRITORIUM. The Testing Institution understands and agrees that TERRITORIUM, and the TERRITORIUM logo and other TERRITORIUM test product logos are registered trademarks of TERRITORIUM. The Testing Institution agrees not to use, reproduce, copy, or create materials bearing the TERRITORIUM name or the TERRITORIUM registered trademarks or logos, for promotional or other purposes, without prior written approval and review of such materials by TERRITORIUM.
5. Access; Termination of Access. Upon execution of this Agreement, TERRITORIUM grants the Testing Institution a limited, revocable, non-transferable right during the term specified herein unless terminated earlier in accordance with this Agreement, to access the Test and other documentation provided by TERRITORIUM to the Testing Institution. TERRITORIUM reserves the right, at its sole discretion, to restrict, suspend or terminate access to all or any part of the Test at any time for any reason without prior notice or liability, and may change, suspend or discontinue any of the Test, including the availability, without prior notice or liability. Upon termination, the Testing Institution will be responsible for the payment of any fees related to testing not already fully administered and completed prior to the termination.
6. Performance Warranty. The Testing Institution warrants that all Test administrations conducted at its Test Sites will conform in all material respects to all specifications, instructions, policies, procedures, and requirements outlined by TERRITORIUM and will be free from material deviations of any kind. This warranty will survive any inspection and acceptance of Test results. ALL SERVICES PROVIDED BY TERRITORIUM HEREUNDER WILL BE PERFORMED IN ACCORDANCE WITH APPLICABLE INDUSTRY STANDARDS.
7. Compliance with Laws. The Testing Institution agrees that in performing all services associated with the Test, it will comply with all applicable federal, state and local laws, rules, and regulations now or hereafter in effect.
8. Liability Disclaimer. TERRITORIUM DOES NOT SET QUALIFYING SCORES FOR THE TESTS. EACH TESTING INSTITUTION THAT ELECTS TO USE TEST RESULTS TO MAKE INDIVIDUAL CANDIDATE DECISIONS IS RESPONSIBLE FOR ESTABLISHING ITS OWN QUALIFYING CRITERIA. THE TESTING INSTITUTION ACKNOWLEDGES THAT THE TEST IS NOT A HIGH STAKES TEST, AND AGREES THAT IF ITS USE OF THE TEST RESULTS IS FOR PURPOSES OF ESTABLISHING ANY STUDENT REQUIREMENTS (e.g., PLACEMENT, GRADUATION), THAT THE TEST RESULTS SHALL NOT BE USED AS THE SOLE CRITERIA FOR SUCH DECISIONS. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, TERRITORIUM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS TO THE TESTING INSTITUTION, ADMINISTRATOR, TEST TAKER OR ANY THIRD PARTY WITH RESPECT TO THE TEST, DOCUMENTATION OR ANY OTHER SOFTWARE, SERVICE OR PRODUCT PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT. TERRITORIUM MAKES NO WARRANTY OR REPRESENTATION THAT YOUR ACCESS TO AND USE OF THE TEST WILL BE UNINTERRUPTED OR ERROR-FREE. WITHOUT LIMITING THE FOREGOING, TERRITORIUM HEREBY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS OR RELIABILITY. UNDER NO CIRCUMSTANCES WHATSOEVER WILL TERRITORIUM BE RESPONSIBLE OR LIABLE TO TESTING INSTITUTION, ADMINISTRATOR, TEST TAKER OR ANY THIRD PARTY FOR ANY INDIRECT, COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES THAT RESULT FROM OR RELATE IN ANY MANNER TO USE OF THE TEST.
9. Limitation of Liability. TERRITORIUM's entire liability and the Testing Institution's sole remedy regarding the use of the Test shall be the total amount of fees paid by the Testing Institution to TERRITORIUM under the corresponding Order.
10. General Provisions. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, U.S.A. This Agreement and any corresponding Order constitute the entire agreement between TERRITORIUM and the Testing Institution with respect to the subject matter hereof and supersedes all other prior written or oral agreements, understandings and commitments between TERRITORIUM and the Testing Institution. No provision of this Agreement may be modified or waived, nor shall the parties’ performance hereunder by governed by any purchase order terms or other terms and conditions unless expressly authorized by a written amendment to the Agreement executed by authorized representatives of TERRITORIUM and the Testing Institution. If any of the provisions of this Agreement are held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby. The Testing Institution may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of TERRITORIUM.