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SCANTRON®
<br />STANDARD TERMS AND CONDITIONS
<br />HARDWARE, SOFTWARE AND SERVICES
<br />11. ORDERS. These Standard Terms, together with any Schedules (collectively the "Agreemeni form
<br />a legal agreement between Scantron Comoration ('Scantron') and the legal entry that orders
<br />Products and/or Services from a proposal, Order form or other sales documentation ('Odder')
<br />incorporating this Agreement ("Customer). Products and Services may be set forth in a Purchase
<br />Order, but Purchase Order terms are not binding unless Scantron expressly assents to such terms in
<br />writing. This Agreement farms the complete contract for this transaction between Scantron and
<br />Customer.
<br />2. DEFINITIONS.
<br />'Custom Produdions' means the reproduction by Scantron of materials provided by Customer, or the
<br />creation or printing by Scantron of Forms Or other materials pursuant to Customers directions or
<br />specifications.
<br />'Customer Conterr means all materials posted by Customer within Software or providetl to Scantron
<br />for Customers use with a Product, including but not limited to Customers item bank of testing
<br />materials and item banks or other materials Owned by third parties.
<br />'Documentation' means any user manuals and/or other materials accompanying the applicable
<br />Product or Service that describe product features or functionality.
<br />'Product" means any hartlware, software, forms printed by Scantron (the "Forms"), third party
<br />products or other items providetl by Scantron and/or its affiliates add subcontractors as described in
<br />the applicable Schedule Or Documentation.
<br />'Purchase Ordermeans any Customer -issued Order form or Other Communication autndndnif or
<br />memorializing the purchase of Products and/or Services.
<br />"Schedule' means any Scantron Orders, attachments, statements of work, click -through license
<br />agreements, specification documents or other documents, either signed by the parties or Incorporated
<br />by reference in another Schetlule, that provide the terns applicable t0 specific Products Or Services.
<br />In the event of an inconsistency, the specific terms Of a Schedule govern over these Standard! Terms.
<br />"Service" means installation, training. Consulting, implementation, support, hosting or Other services
<br />provided by Scantron andlor its affiliates and subcontractors as described in the applicable Schedule
<br />or Documentation.
<br />3. TITLE: RISK OF Lopo : DELIVERY. SCaeVOO will use reasonable ¢(forts to deliver the Products and
<br />Services to Customer on Or before Specified delivery dates. Delivery of Software Occurs when it is
<br />shipped, made available for download. or otherwise provided to Customer For Software hosted by
<br />Scantron, delivery occurs when the Software is first made available to Customer for use. If hardware
<br />Products are purchased by Customer under this Agreement, Scantron transfers flue to Customer
<br />upon shipment Of the hardware Products, However, Scantron retains a purchase money security interest in the hardware Products unfit paid in full by Customer Customer agrees to execute
<br />appropriate documents to permit Scanwn to perfect its purchase money security interest. Scantron
<br />bears the risk of loss for Products up to and including their date of shipment Thereafter, Customer
<br />assumes all risk of loss. All Products will be shipped FOB Origin. If Customer is to lease any
<br />hardware Products, a separate leasing agreement must be executed. Customer will promptly inspect
<br />and accept or reject the Products and Services upon delivery. Absent Customers earlier written
<br />acceptance. Products and Services are accepted 30 days following delivery,
<br />/. SOFTWARE LICENSE GRANT. To the extent Thal software Products are acquired by Customer under
<br />This Agreement (the "Software"), Scantron grants a non-exclusive, non transferable license to the
<br />Software (the 'License Gramr). Documentation is included in and with the license far the Software.
<br />Each License Grant is only for the United Stales and Canada and provides Customer with the right to
<br />use the Software object code (not source rode) for Customers internal purposes only, to perform
<br />services in the normal course Of Customers business, and consistent with the applicable
<br />Documentation. A Schedule, including any clickthroughlicense agreement that accompanies the
<br />Software, may define additional or alternative terms and conditions. If you do not agree to any click -
<br />through license agreement that is not made available for review before placing your order, you must
<br />notify Scantron within 15 days of delivery of your rejection Of such terms, and must promptly return
<br />the Product and accompanying items for a refund of the applicable fee. Scantron or its designated
<br />agents shall have the right to enter and inspect Customers records andlor its computer systems for
<br />the purpose of auditing Customers use of the Software. Access will be permitted with reasonable
<br />advance notice during business hours.
<br />S. SERVICES. To the extent any Services are purchased by Customer under this Agreement, all
<br />technical information, custom software, know -haw and other intellectual property supplied by
<br />Scantron to Customer in the course Of performing any Services (the "Work Product") is licensed to
<br />Customer in accordance with the provisions of Nis Agreement. Upon delivery, Work Product shall be
<br />'Software' under the terms of the Agreement. Scantron may charge a reinstatement fee to support or
<br />service Products not Continuously under warranty and then service, support and/or maintenance (as
<br />applicable). CUSTOMER ACKNOWLEDGES THAT AS PART OF ANY INSTALLATION SERVICES,
<br />SCANTRON MAY "ACCEPT" CLICK -THROUGH AGREEMENTS FOR THE PRODUCTS AND
<br />THIRD PARTY PRODUCTS ON BEHALF OF CUSTOMER. Hardcopies Of such dick-ihdeugh
<br />agreements are available upon request.
<br />S. COMPENSATION. In addition 0 applicable Product and Service fees, Customer will reimburse
<br />Scantron's Out-d-pocket Costs including shipping and reasonable travel and living expenses.
<br />Invoices shall be paid within 30 days of receipt without deduction, withholding Or offset. ScanVon may
<br />suspend any License Grant and/or Services provided under this Agreement until payments are
<br />brought current. Amounts not paid when due are subject to finance charges of 1.5% per month or the
<br />highest rate permitted by law (whichever is lower). Customer will pay or reimburse Scan[mn far all
<br />duties, taxes (other than taxes an Scantron's income), fees or other similar amounts assessed or
<br />imposed by governmental authorities. Scantron may at any time change fees for Products, Services
<br />or Other items respecting future orders. Fees for Services not scheduled within 9 months of invoice
<br />date will be forfeited unless extended in writing by Scantron.
<br />T. TERM: TERMINATION. This Agreement remains 10 effect Mtl Services are Complete and all License
<br />Grants extended under this Agreement, if any, cease. Products Or Services provided pursuant to a
<br />Schedule that defines a term may Wit be terminated during such term except as provided in such
<br />Schetlule. NOtwithdantling the foregoing, R a party tails to cure a default within 30 days after written
<br />notice explaining the default the nonEefaulting party may immediately terminate any License Grants,
<br />Services or other items to which the default (elates. Termination of his Agreement terminates further
<br />performance by the non -terminating party. If the termination is based upon a default with respect to
<br />Software, Customer must immediately uninstall and stop using all Copies of such Software, return to
<br />Scantron or destroy all copies of any Software and Documentation in Customers possession or
<br />control within 20 days Of termination, and certify the return or destruction of all Software and
<br />Documentation if requested by Scantron Early termination does not relieve Customer of any
<br />payment obligations which arise prior to the effective date of such termination. Sections 6, B, 9F, 10,
<br />12B, 12D, together with any terms Of the Agreement that can be reasonably interpreted to survive
<br />termination, shall survive.
<br />8. PROPRIETARY RIGHTS: CGNFIDEWIAUWIPRIVACY/SECURTY.
<br />A. PROPRIETARY RIGHTS. The Products and Services (including any Work Product) are protected
<br />by copyright, Veda secret and other proprietary rights of Scaniren and its suppliers. Software and
<br />Mm Product are licensed, not sold, to Customer. Scantron reserves all rights in Products,
<br />Servose and Documentation not expressly granted to Customer.
<br />B. LIMITATIONS ON USE. Customer will not: reproduce Products or Sem4ces; sell or subscanse
<br />Products Or Services', permit the use of Software. Services or Documentation by others or
<br />Otherwise Operate Software for third parties (Og., as a service bureau or Data processing service);
<br />modify or translate Software; disassemble, reverse engineer or decompile Software or Otherwise
<br />attempt to discover trade secrets related t0 Software; use the Shcware in excess of the licenses
<br />granted and lcause fees paid,
<br />C. CONFIDENTIALITY. Both partes may acquire Certain information that is confidential, proprietary
<br />Or trade secret information of the other party or a third party ('Confidential Information') in the
<br />performance of This Agreement. The party receiving Confidential Information will use such
<br />information solely for performance under this Agreement; not disclose such information to any
<br />third party (excluding agents and, in the case of Scantron, Its affiliated Companies); and otherwise
<br />protect such information from any unauthorized use Or disclosure. The receiving party shall bind
<br />Ad employees, agents and affiliates having access to Confidential Information to Confidentiality
<br />Obligations Consistent with this provision. Neither party will be obligated to keep confidential any
<br />information that is: publicly available through no fault Of such party; received by such party from a
<br />third party not under a Confidentiality obligation regarding the information; independently
<br />developed by such party without referring to the Confidential information; or required by applicable
<br />law to be disclosed by such party. Scantron may reflect the Customers name in a customer list
<br />and the respective products Involved.
<br />D. CUSTOMER CONTENT AND CUSTOM PRODUCTIONS. No ownership Interest in Customer Content
<br />or Custom Productions shall be transferred to Scantron, and Scantron will not use Customer
<br />Content Or Custom Productions other than as contemplated by the Agreement Customer
<br />warrants that any Customer Content and Custom Productions are either owned by Customer, or
<br />Customer has all rights Squired! fa Scantron to use or reproduce such Customer Content and/or
<br />Custom Productions in the manner Intended pursuant to the Agreement. Customer will lncemnify,
<br />defend and hold Scantron harmless from any claims, causes of action, costs (including, without
<br />limitation, reasonable attorneys' fees) and any other liabilities of any nature arising from or related
<br />to claims that Custom Productions adi Customer Content violate the rights of any third party.
<br />E. PRIVACY/SECURITY. Scantron will maintain and monitor policies and procedures to meet Me
<br />data privacy and security objectives of the Family Educational Rights and Privacy Act (FERPA),
<br />the Health Insurance Portability and Accountability Act of 1995 ("HIPAA"), the Gramm -Leach -
<br />Bliley Ad (°GLBA"), the Fair and Accurate Credit Transactions Act ("FACTNt, the Fair Credit
<br />Reporting Act ("FCRA"), and Other related laws and regulations (collectively, the "Privacy Laws°),
<br />by addressing administrative, technical and physical safeguards designed to (i) ensure the
<br />security and confidentiality of nonpublic personal information achung to students, patients Or other
<br />consumers, (ii) ported against any anticpated threats or hazards to the security Or integrity of
<br />such information; and (iii) protect against unauthorized access to or use of such Infdmauon that
<br />Could result in substantial hand or inconvenience to Customer, Unless otherwise specifically
<br />agreed in a Schedule, Customer shall be solely responsible for responding to third party requests
<br />to disclose w change any such information. Vdth reasonable advance notice, Scantron will permit
<br />a review during regular business hours to assess whether appropriate Controls are in place, or will
<br />provide documentation to verify compliance with its obligations under this paragraph. If Customer
<br />is a "covered entity" under HIPAA. Scantron will execute a business associate agreement
<br />upon the reasonable request of Customer and to the extent required by law. Upon execution by
<br />both parties , such BAA shall be incorporated herein by this reference. To the extent of an
<br />Incenestency the terms of such BAA shall govern.
<br />9. WARNANTIES.
<br />A. FORMS. Upon delivery, Scantron warrants the Forms against material defects in materials and
<br />workmanship when used normally in accordance with the applicable Documentation. If a problem
<br />occurs with the Forms caused by an error in Bowmen's manufacturing process, Stanton will
<br />replace any defective Fortes. Scantron reserves the right to examine all Forms claimed to be
<br />defective. If Scantron determine the Forms th be defective, Scantron will take the necessary steps
<br />to Coact the problem by reporting or using alternative data capture methnds.
<br />B. HARDWARE PRODUCTS. For a period of 30 days (or such other period as agreed in a SchooUla,
<br />hereinafter the "Hardware Warranty Period ' I following the delivery, Scantron warrants hardware
<br />Products against material defects in materials and workmanship when used normally in
<br />accortlance with the Documentation. A Schedule for hardware Products may include one of the
<br />Following specific warranties:
<br />DEPOT WARRANTY. During the Hardware Warranty Period, Customer shall ship, at its own
<br />expense, defective hardware Products t0 the Scantron Depot Service Center for repair, The
<br />Cost of return shipping shall be paid by Scantron.
<br />CENTRAL EXCHANGE WARRANTY. During the Hardware Warranty Period, Customer shall
<br />promptly call Scentron's Call Center for diagnosis and consultation. Upon Samford's diagnosis
<br />that the hardware is caledve, Scantron will ship a replacement for the hartlware Product.
<br />Customer shall install the replacement per Scanlon a Specifications. Wtthin 5 business days
<br />of receipt Of the replacement, Customer shall return the Original tlefective Product to Scantron
<br />via the enclosed shipping label. If Customer fails to return the Product within 10 business tlays.
<br />Customer shall be Charged the full retail value of the Protluct.
<br />ONSITE WARRANTY. During the Hardware Warranty Period, Scantron shall provide repair
<br />services at Customers premises (during Scantmn's regular business hours).
<br />Scantron will use reasonable efforts to Correct any hardware Product (by either repair or
<br />replacement, at ScanVOn's sole discretion) that fail to Comply with the applicable warranty.
<br />Customer must give Scantron prompt written notice Of failure during the applicable warranty
<br />period, and Scantron must be able to reproduce the noncompliance. Unless Otherwise specified
<br />in a schedule, the terms Of the Depot Warranty apply to Scantron hardware Protlucts. Even if
<br />delivered as an inseparable part of a hardware Product, Software is Covered exclusively by the
<br />Software Warranty. Customer will provide reasonable assistance to Scantron in reproducing the
<br />failure.
<br />C. SOFTWARE. For a period of 9O days fallowing the delivery Of the Software (or such other period
<br />as agreed in a Schedule, hereinafter the "Software Warranty Period'), Scantron warrants the CD,
<br />DVD downloaded files or Other media against defects in materials or manufacture. If Customer
<br />nor Scantron during the Software Warranty Period, Scantron will, at its expense, replace any
<br />defective media returned to Scantron and will use reasonable efforts to correct marmot failures Of
<br />the Software to function in accordance with applicable Documentation. If Scantron is unable to
<br />Comply with the foregoing limited warranty. Customers sole and exclusive remedy shall be to
<br />terminate the License Grant by returning the Software for a Refund of the Software fees.
<br />Scantion's sole obligation, and Customers sole remedy, is to cared such Woods, which may
<br />include reasonable °work -among" solutions. If the failure repoRed is attributable to user error, to
<br />SCANTRON CORPORATION CONFIDENTIAL
<br />STANDARD TERMS AND CONDITIONS PAGE 1 OF 2 roe +mmta
<br />HARDWARE, SOFTWARE AND SERVICES THESE TERMS AND CONDITIONS HAVE BEEN MODIFIED FOR THE CITY OF SANTA ANA 11.11.2020
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