In addition to the privacy policies included within the policy manual, the jurisdiction shall maintain the confidentiality of GED Testing Service’s confidential information and neither the jurisdiction nor its subcontractors, employees, or agents shall use or divulge, or cause to be used or divulged, GED Testing Service’s confidential information or proprietary property without the express authorization of GED Testing Service except where permitted or required to perform administration of the GED® test. GED Testing Service may immediately terminate the jurisdiction’s right to administer the GED® test for any violation of this provision. This provision shall survive the expiration or termination of the jurisdiction’s Memorandum of Understanding (MOU).
2. Intellectual Property
The jurisdiction acknowledges that (i) ACE is the owner of all rights, title, and interests, including all intellectual property rights, in the GED® trademarks, (ii) the jurisdiction has no interest in the GED® trademarks, and (iii) GED Testing Service, as ACE’s agent, has the exclusive right and interest in and to the GED® trademarks and the goodwill associated with and symbolized thereby. All goodwill associated with the jurisdiction’s use of the GED® trademarks or any derivatives thereof have inured, and will continue to inure, to the benefit of ACE. During the term and after the termination or expiration of the MOU, the jurisdiction agrees to not (i) directly or indirectly challenge ACE’s ownership, title, right, or interest in or to the GED® trademarks, (ii) do anything either by an act of omission or commission which might impair, violate, bring into public disrepute, or infringe on any of the GED® trademarks, (iii) claim adversely to ACE or GED Testing Service any right, title, or interest in or to the GED® trademarks, or (iv) directly or indirectly register or apply for registration of any of the GED® trademarks or any mark which is, in the opinion of GED Testing Service, the same as or confusingly similar to any of the GED® trademarks anywhere in the world. The jurisdiction agrees to maintain a level of quality that meets or exceeds the quality or performance standards customary in the educational testing services industry and agrees to comply with all applicable laws and regulations. The jurisdiction agrees to report to GED Testing Service any misuse of the GED® trademarks or fraud or other misleading or unfair business practices reported to the jurisdiction or otherwise discovered by the jurisdiction. The jurisdiction also agrees to cooperate with GED Testing Service in any enforcement efforts that GED Testing Service undertakes, and GED Testing Service agrees to reimburse the jurisdiction for the jurisdiction’s reasonable out-of-pocket expenses incurred in connection with such cooperation.
3. Data Rights
The jurisdiction may use Test-taker Data in a reasonable manner for the purposes of evaluating and reporting on the performance of the jurisdiction’s Test-taker, assessing whether the Test-taker qualifies for the jurisdiction’s high school-equivalency credential or GED® credential, for reporting jurisdiction’s GED® program data to other agencies within the jurisdiction as required for educational performance or funding, or for reporting aggregated data to support the of the jurisdiction’s GED® program. GED Testing Service will work with the jurisdiction regarding aggregate data for reports and other research as the parties mutually agree.
GED Testing Service may use Test-taker Data in any reasonable manner or in a manner in which the Test-taker has provided consent to use such Test-taker Data.
In the event any controversy or claim arises out of or related to the MOU, or the breach thereof, the parties shall attempt to resolve the matter through discussions. If such discussions do not result in agreement between the parties, the parties shall consider engaging an outside mediator to assist in resolving the dispute. Only following these discussions may legal action be instituted.
5. Entire Agreement
The MOU, including the exhibit(s) thereto, and the policy manual, contain the entire understanding and agreement between the parties related to their subject matter. The MOU supersedes any and all other agreements and understandings, whether oral or written, related to its subject matter, and may only be amended by a written document signed by both the jurisdiction and GED Testing Service
6. Force Majeure
Neither party shall be liable for any failure to perform under this agreement when such failure is due to causes beyond that party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, strikes, and prolonged shortage of energy. In the event of such delay the date of delivery or time for completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.
7. Governing Law
The MOU and the GED® program administered by the jurisdiction will be construed and enforced in accordance with the laws of the District of Columbia without reference to that body of law governing conflicts of law. GED Testing Service and the jurisdiction consent to the interpretation of laws, jurisdiction, and venue in the courts sitting in the District of Columbia.
8. Independent Contractor
In administering the GED® test, the jurisdiction is acting independently and not as an agent of GED Testing Service. Nothing contained in the MOU will create any association, partnership, or joint venture between the jurisdiction and GED Testing Service. The jurisdiction will have no authority, express or implied, to commit or obligate GED Testing Service in any manner whatsoever.
9. Limited Warranty
The jurisdiction warrants it will perform the administration of the GED® test in accordance with all applicable United States federal, state, and local laws and regulations, and in compliance with all applicable laws and regulations of the country where the GED® test is administered. These laws include, but are not limited to, laws governing international business, bribery and corruption, or transmission of personal data, and laws guaranteeing nondiscrimination against persons based on sex, race, creed, physical disability or other protected category. The jurisdiction will indemnify, defend, and hold GED Testing Service harmless from all claims of other parties for breach of these warranties.
THE WARRANTIES UNDER THE MOU REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER WARRANTIES ARE DISCLAIMED AND EXCLUDED BY GED TESTING SERVICE.
The parties recognize the uncertainty of the law with respect to certain provisions of the MOU and expressly stipulate that the MOU will be construed in a manner that renders its provisions valid and enforceable to the maximum extent possible under applicable law. To the extent that any provisions of the MOU are determined by a court of competent jurisdiction to be invalid or unenforceable, such provisions will be deleted or modified so as to make them enforceable, and the validity and enforceability of the remainder of such provisions will be unaffected.
Any terms of the MOU and this policy manual, which, by their nature, should reasonably survive termination or expiration of the MOU shall survive.