Q-interactive™ Subscription and Licence Agreement (the "Agreement")

 

PLEASE CAREFULLY READ THIS AGREEMENT BEFORE ACCEPTING BELOW. PROCEEDING WITH REGISTRATION, OR ACCESSING, USING, PRINTING, OR DISPLAYING THE SERVICES INDICATES CUSTOMER'S ACCEPTANCE OF THE TERMS OF THIS SUBSCRIPTION AND LICENCE AGREEMENT.  IF CUSTOMER IS GOVERNED BY HIPAA AND IS A COVERED ENTITY AS THAT IS DEFINED UNDER HIPAA, PLEASE PAY PARTICULAR ATTENTION TO THE BUSINESS ASSOCIATE SECTION IN PARAGRAPH 10. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS, CUSTOMER SHOULD DECLINE REGISTRATION AND CUSTOMER MAY NOT ACCESS, USE, PRINT, OR DISPLAY THE PRODUCTS OR SERVICES.

 

1.    Licence Grant.

 

1. This is a legal agreement concerning Q-interactive and is between You, either as an individual or business entity (and any Authorized Users) and Pearson Education Limited. An Authorized User is any user that has been given authority to use the account by the Customer.  This Agreement supersedes and replaces any prior proposal, representation, or understanding You may have regarding Your use of the Q-interactive system.  Pearson Education Limited  (hereinafter called "Pearson") grants to You, the undersigned customer (hereinafter called "You or Your"), a personal, transferable (subject to section 1(b)), nonexclusive licence to use the Q-interactive Assessment Creation, Scoring and Reporting System product ("Q-interactive") to enable administration, scoring, and reporting individual assessments published by Pearson that are selected subtests of selected Pearson assessments which may be modified from time to time by Pearson (collectively the "Test(s)"), and retention of examinee data during the term of this Agreement. Q-interactive displays Test instructions and items for onscreen Test administration or data entry, Test-related manuals, and related user documentation, Q-interactive coordinates Your access to specific Test(s) procured by You from Pearson and based on the data input and the report selected by You, generates Test-specific score reports that will only include raw and scaled scores, index scores, and index comparison scores ("Reports") delivered through Q-interactive.  Q-interactive also provides You with an opportunity to export Your examinee data to Your desktop or to retain the examinee data in files on Q-interactive.

 

 

1. You, and other nominated users with requisite admin permissions, are responsible for administering password access for an Authorized User to Q-interactive services in accordance with Pearson’s guidelines, including appropriate access being granted to different types of Authorized User, such as additional practitioners or general administration staff.  Your purchase is for a maximum number of Authorized Users only and you may not exceed that number. If you wish to increase this number, you may be able to purchase additional Authorized User licences for the remainder of the Your current licence term for an adjusted reduced rate. In any case, You may not allow access by additional Authorized Users without purchasing additional licences. You must provide Pearson with accurate and complete information about the number of Authorized Users when you place Your initial or renewal order. It is your responsibility to update Pearson of any changes to that information by contacting us at clinical.success@pearson.com

 

2.    Term

 

The term of this Agreement begins on the date this Agreement is electronically accepted by You or when You use Q-interactive and will continue, except as otherwise provided in this Agreement, unless or until terminated by either party.

 

3.    Orders and Payment.

 

 

All orders for Test(s) and for administrations, scoring, and Reports through Q-interactive (“Administrations”) during the term of this Agreement are subject to acceptance by Pearson, in its discretion, and will be fulfilled subject to Pearson’s then current Qualification requirements (click on the following link to view Qualification Requirements) and Terms and Conditions of Purchase (click on the following link to view Terms and Conditions of Purchase) and this Q-interactive Licence. To use the system, You will need to purchase an annual subscription to Q-interactive. Subscription pricing is set out in the attached Subscription Pricing Schedule A which is incorporated herein by reference. Your Subscription fee only allows you access to the Q-interactive system. Your order for Test administrations allows you access to the Test(s) Administrations and scoring or reporting. You agree to pay all applicable charges for Test Administrations or Reports, together with any applicable taxes. Unless otherwise specified by Pearson, charges are due and payable within thirty (30) days of invoice.

 

4.    Use of the Test(s) and Q- interactive.

 

You agree to use the Test(s) and Q-interactive (a) in accordance with this Licence and in accordance with all applicable laws and regulations and (b) for the number of Administrations You have purchased from Pearson. You also agree to only use Q- interactive on devices that conform to Pearson's then-current published electronic operating environment specifications. You agree that Pearson may install any Q-interactive Maintenance Release at no additional charge. You understand and agree that Pearson's Test(s) and Q-interactive are meant to be used as tools to supplement You in the overall assessment process, and are not intended or designed to be used alone or replace Your professional judgment.. You shall not grant sublicences, assign or transfer (including transfer by rental) Q-interactive or use Q-interactive to benefit any third party without the prior written consent of Pearson.

 

5.    Protection of Test(s) and Operating System.

 

The Test(s) and the Q-interactive operating system are the proprietary property of Pearson and contain trade secrets, copyrighted works and, in certain cases, patented intellectual property, owned by Pearson and/or its licensors. The placement of a copyright notice on any portion of the Test(s) or Q-interactive does not mean that they have been published and will not derogate any claim by Pearson of trade secret protection. Title to the Test(s) and Q-interactive and copies thereof, and all intellectual property rights protecting the Test(s) shall remain with Pearson and/or its licensors and Q-interactive shall remain the property of Pearson.

 

In the event You implement a single sign-on solution to allow You or Your Authorized Users access to Q-interactive, it is your responsibility to implement appropriate safeguards regarding access to Q-interactive through your chosen single sign-on provider, such as appropriate password rotations and Multi-Factor Authentication.

 

6.    Examinee Data.

 

YOU ARE ADVISED TO EXPORT AND SAFEGUARD YOUR IMPORTANT DATA AND BACK UP IMPORTANT INFORMATION FREQUENTLY. You understand that You may be allowed to export Your examinee data at any time. If You choose to store examinee data on Q-interactive, Pearson will regularly backup the examinee data stored in the Q-interactive data base and will securely store these backups. However, You must make regular backups and agree that You release Pearson from any failure in the database system.

 

7.    Restrictions on Use

 

(a) You agree not to copy or duplicate, modify or alter physical or electronic characteristics of the Test(s) or the Q-interactive operating system or to dismantle or reverse engineer any part of the Test(s) or Q- interactive.

 

(b) Because Q-interactive and its outputs, including but not limited to Reports, are protected as trade secrets, except as expressly provided in this section 7, these TRADE SECRETS ARE NOT PERMITTED TO BE DISCLOSED in response to requests made pursuant to HIPAA (Health Insurance Portability and Accountability Act of 1996) or any other data disclosure law that exempts disclosure of information or documents protected as trade secrets. You agree that You will not otherwise, directly or indirectly disclose any trade secrets of Pearson without the prior written consent of Pearson.

 

(c) You may excerpt portions of the Reports, limited to the minimum text necessary to accurately describe Your significant core conclusions, for incorporation into Your written evaluation of the individual, in accordance with Your profession's citation standards, if any.

 

(d) You may not, under any circumstance, copy or reproduce the text of any Test question without Pearson's prior written permission.

 

8.    Test(s) Availability.

 

Pearson's rights to make available Test(s) and Administrations are subject to agreements between Pearson and the Test owners/licensors. There is no assurance that Pearson will be able to provide any particular Test now or in the future. If Pearson is unable to sell Administrations with respect to a particular Test, You may continue to use any previously purchased Administrations. You agree that Pearson will not be liable to You in any manner whatsoever for any future unavailability of any Test(s) or Administrations.

 

9.    Availability and Support.

 

 Pearson will use commercially reasonable efforts to maintain availability of Q-interactive 24 hours a day 7 days a week, except for scheduled downtime or emergency downtime required to apply a security or other essential software patch or respond to an event, such as a denial of service attack, which is outside our reasonable control. You may contact Pearson’s Technical Support for help in operation of Q-interactive during Pearson’s regular Technical Support business hours (click the following link to access the Technical Support business hours).

 

10.  Personal Data Processing.

 

1. To perform services for You, Pearson may receive personal data that is provided by You and examinees. Pursuant to this Agreement, any personal data that Pearson receives is subject to the Privacy Policy (click the following link to access the Privacy Policy). Pearson will not use personal data including any personal health information provided by You in any manner without Your prior consent. 
2.  Pearson may use or disclose data that Pearson receives from You or Your examinees collected from Administrations to provide Test(s) and Administrations to You pursuant to this Agreement. For Pearson's quality assurance, research and/or Test development purposes, Pearson may, from time to time extract de-identified personal data stored on Q-interactive. De-identification means that the extracted demographics and Test responses cannot be identified as Yours or Your examinees. Pearson will only use this de-identified data for lawful purposes, including but not limited to, quality assurance, research, and/or test development. In the event that You have existing examinee data for the Test(s) on other Pearson platforms, Q-interactive may permit You to migrate Your data from other Pearson platforms to Q-interactive. If this migration is permitted by Q-interactive and elected by You, You agree that You are responsible for complying with Pearson's migration protocol and ensuring Your data's correctness before and after migration. The Customer agrees to comply with all applicable data protection laws in relation to personal data collected and stored by Q-interactive where it is the data controller.
3. Use of De-identified Data for Research. Pearson may during the period of Your subscription to Q-interactive provide You with the option, should You and Your client agree, to share de-identified examinee data with Pearson for one or both of the following purposes: (1) General Research. This will allow Pearson to use de-identified data from your account in validation studies and studies of specific clinical populations. These data will enable us to identify items and subtests with the greatest sensitivity and specificity, and increase our ability to develop shorter and better assessments. You will have the opportunity to choose which examinees’ data will be included in the research database. (2) Special Research. This will permit Pearson to contact You each time there is a research study and, if You qualify, You may choose at that time to participate. If you choose to participate, You will receive information about specific research studies when they are being conducted. This data will be used only for research and test development so that future versions of the assessment will have enhanced clinical utility.  
4. Business Associate. If You are governed by HIPAA and are a Covered Entity under HIPAA, You and Pearson agree that the Business Associate Addendum will govern HIPAA-related matters (click on the following link to view and accept the Business Associate Addendum). If You are a school or not a Covered Entity, this paragraph does not apply.

 

 

 

11. Data Processing. In relation to personal data in relation to which Pearson is identified in the Privacy Notice as the data processor;

 

1. You appoint Pearson to process such personal data for the sole purpose of making available Test(s) and Administrations in accordance with these terms and conditions. Except as otherwise stated in these terms and conditions Pearson will not process the personal data for its own purposes or for the purposes of third parties and will follow authorised users’ documented instructions in relation to such personal data given through Q-interactive.
2. Pearson will comply with applicable data protection laws in relation to its processing of personal data under these terms and conditions and in particular will: (i) ensure that persons who process personal data are subject to strict obligations to maintain confidentiality and process personal data only for the purpose of making available Test(s) and Administrations through Q-interactive; (ii) take appropriate technical and organizational measures in accordance with the Privacy Notice to protect personal data against accidental or unlawful destruction, and/or loss, alteration or unauthorized disclosure or access; (iii) provide timely and adequate support to enable You to (a) respond to any request by any individual exercising his or her right under applicable data protection laws, including the right to access, correct or delete personal data from Q-interactive, or any other correspondence, request or complaint by any person or regulatory authority in connection with the processing of personal data by Q-interactive, and if such requests, correspondence, inquiries or complaints go directly to Pearson, Pearson will promptly notify You and provide all relevant information; and (b) where Pearson's processing of personal data is likely to result in a high risk to the data protection rights and freedoms of the data subjects, at Your cost, perform a data protection impact assessment and, if necessary, consult with Your data protection authority.
3. Pearson will promptly and without undue delay notify You and provide You with all information and support required to enable You to comply with Your obligation to report any breach of privacy or security incident to regulatory authorities and affected individuals in accordance with the applicable data protection laws. In addition, Pearson will take such steps as are reasonably required to mitigate the effects of any breach of privacy or security incident.
4. Pearson will appoint sub-processors in relation to personal data only in accordance with the Privacy Notice and on contracts that reflect these terms and conditions and you approve of all such appointments. Pearson will inform you of any new sub-processors via updates to the Privacy Notice and you must raise any objection to new sub-processors within 14 days of such update.

 

 

1. Pearson will provide to You or to an external auditor appointed by You on request such information as is reasonably required to enable You to verify Pearson’s compliance with its obligations in relation to personal data.  

 

 

12. Data Migration. In the event that You have existing examinee data for the Test(s) on other Pearson platforms, Q-interactive may permit You to migrate Your data from other Pearson platforms to Q-interactive. If this migration is permitted by Q-interactive and elected by You, You agree that You are responsible for complying with Pearson’s migration protocol and ensuring Your data’s correctness before and after migration.

 

 

13. Warranty.

 

Pearson warrants that neither the Test(s) in their standard form nor normal use of the Test(s) will infringe any patents or copyrights existing at the time the Test(s) are made available by Q-interactive, provided, however, that this warranty does not extend to any non- Pearson test ("Pearson Test(s)" that are published directly or under licences by Pearson Education Limited ), to any infringement arising out of the use of such Test(s) in combination with systems, equipment or Q-interactive programs or platforms not supplied by Pearson.. If You promptly notify Pearson of any such infringement claim of which You have knowledge or notice, and accord Pearson the right, at its sole option and expense, to handle the defense of the infringement claim, Pearson will indemnify and hold You harmless from and against such infringement claim. If such an infringement claim arises, or if Pearson becomes aware of the possibility of such a claim, then Pearson may, in its discretion (a) furnish You with non-infringing replacement Test(s) within sixty (60) days; or (b) terminate this Agreement in whole or in part by repurchasing Your unconsumed Administrations. This is Your exclusive remedy for any breach of this warranty against infringement.

 

EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS SECTION, PEARSON MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TEST(S). ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.

 

14. Termination.

 

Either party shall have the right to terminate this Agreement, including any licences, if the other party breaches any of its obligations under this Agreement and fails to cure the same within thirty (30) days after receipt of written notice of default (except that there shall be no cure period for Your breach of Pearson's rights under Sections 4 or 5 of this Agreement). If this Agreement is terminated for any reason, Pearson will allow you access to Q-interactive for not more than thirty (30) days for the sole purpose of exporting Your data. Your obligations under this Section 14, as well as the provisions of Section 15 and 16 below, shall survive any termination of this Agreement.

 

Pearson shall have the right to terminate this Agreement, including any licences, if You use assessments in excess of Your subscription and fail to pay for those excess uses.  

 

15.  Dormant and Active Accounts. 

 

As long as You have an active account (defined below), Your purchased subtests, report inventory, usages or other digital allocations of assessment measures and support materials will remain accessible and available for You and any Authorized Users of the account without expiration.  Accounts deemed dormant (as defined below) will have all data (including client scores, history, etc.) and digital allocations (usages, inventory, manuals, etc.) permanently expunged from the system (after notice has been provided to the Account owner) and will no longer be retrievable by You or Pearson after Appropriate Notice (as defined below) has been provided to the account owner named on the account.

 

An Account refers to this Q-interactive account.

 

An “Active Account” is defined as any account that has a paid Licence within the past twenty-four (24) months.

 

A “Dormant Account” is defined as any account that has not had an Active Account in the last twenty-four (24) months.

 

“Appropriate Notice” is defined as communication efforts (email or letter) by Pearson with no less than six attempts to contact You (the “Account Owner”) over a ninety (90) day period after the account is deemed a Dormant Account using the contact information (email and billing address) on file for the account in question.  The Appropriate Notice will include one or more of the following: notice that the account should be reactivated or that all client information for all Authorized Users should be downloaded from the Pearson system prior to a specific date.  If Pearson does not receive an appropriate response, The Customer and all Authorized User’s data will be permanently deleted and will no longer be available.

 

16. Indemnification.

 

EXCEPT AS PROVIDED IN SECTION 13 OF THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY AND HOLD PEARSON HARMLESS AGAINST ALL CLAIMS, LIABILITIES, DEMANDS, DAMAGES, OR EXPENSES (INCLUDING LEGAL FEES AND EXPENSES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE TEST(S) COVERED BY THIS AGREEMENT AND/OR YOUR FAILURE TO PERFORM YOUR OBLIGATIONS UNDER THESE TERM AND CONDITONS.  

 

17. Liability.

 

 NOTHING IN THESE TERMS AND CONDITIONS PURPORTS TO LIMIT OR EXCLUDE PEARSON’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE OR FOR FRAUD. PEARSON'S LIABILITY FOR LOSS OR DAMAGE RELATING TO THIS AGREEMENT AND/OR Q-INTERACTIVE AND/OR THE TEST(S) OR YOUR USE OR INABILITY TO USE THE TEST(S), REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE CHARGES PAID BY YOU FOR THE TEST(S) INVOLVED. THIS IS YOUR EXCLUSIVE REMEDY. IN NO EVENT SHALL PEARSON BE LIABLE TO YOU FOR ANY CLAIM MADE AGAINST YOU BY ANY OTHER PARTY OR FOR ANY CLAIM MADE BY YOU FOR LOST BUSINESS OR PROFITS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF PEARSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, LOSS OR DAMAGES.

 

 

18.   Support Service.  

 

Subject to and conditioned on the Customer’s and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Pearson shall use commercially reasonable efforts to provide to You and Your and its Authorized Users technical support (collectively, the "Services") in accordance with the time periods and terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by the subscriber and its Authorized Users  from Monday-Friday 9a.m. to 5 p.m. UK, except for:

(a) Scheduled Downtime;

(b) Service downtime or degradation due to a Force Majeure Event;

(c) any other circumstances beyond Pearson's reasonable control, including Customer or any Authorized User's use of Third Party Materials, misuse of the Services, or use of the Services other than in compliance with the express terms of this Agreement and the Specifications; and

(d) any suspension or termination of Customer's or any Authorized Users' access to or use of the Services as permitted by this Agreement.

 

Support information and contact details can be found on our Contact Us page

 

19. General.

 

THESE TERMS AND CONDITIONS SHALL BE GOVERNED BY, CONSTRUED, AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF ENGLAND AND WALES and together with the ordering documentation for Q-interactive and any Tests or Administrations constitutes the entire agreement between You and Pearson concerning this matter, and supersedes all discussions, proposals, bids, invitations, orders, and other communications, oral or written, on this subject. Any dispute between You and Pearson shall be brought before the competent courts of England, which shall have exclusive competence to adjudicate such dispute. No person other than a company within the direct or indirect ownership or control of Pearson plc who is not a party to this agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term. These terms may not be waived, amended, or modified in any way without the prior written permission of Pearson. If any one or more provisions are found to be illegal or unenforceable, the remaining provisions will be enforced to the maximum extent possible. To the extent any purchase order from You conflicts with or amends these terms and conditions in any way, these terms and conditions shall prevail. Schedule A – Pre-Pay for Usage Subscription Pricing This Subscription Pricing Schedule is made part of the Q-interactive™ Subscription and Licence Agreement and sets out the various subscription types available to our Licencees. Your Q-interactive Pre-Pay for Usage Subscription is determined by the number of Q-interactive Users and the number of Test(s) You want made available for use and your annual volume of Test use as set out in the table below.

 

 

SCHEDULE A

 

PLATFORM ACCESS: ANNUAL COST PER USER (pre-tax)

Number of Users Standard Licence   Speech Licence      Education Licence

1-4 Users                        £200                             £120                             £95

5-24 Users                      £175                             £95                              £75

25+ Users                       £150                             £70                              £55

 

PLATFORM ACCESS: CONTENT USAGE (pre-tax)

No of Subtests                         Cost per Subtest

150 - 750                                   £1.85                                   

751 - 5000                                 £1.65

5001+                                        £1.40

 

PLATFORM ACCESS + CONTENT USAGE = ANNUAL COST (paid before services begin).

The following applies to each Pre-Pay for Usage Subscription Licence:

• The Licence term is one year from the date of purchase.
• You will pay, up front, for Your Annual Use at the above Cost per Subtest. Additional Subtest(s) consumed (over the number originally purchased) will be billed at the end of the licence term at the above standard Cost per Subtest rate.
• If Your account enters a negative Subtest balance (subtests consumed exceed the number purchased for a licence) at any time, Pearson reserves the right to raise an invoice for payment to cover the negative balance as it stands at any point in time. You will receive communication from us in advance of any such invoice being raised. Further our minimum order quantity requirement of 150 Subtests will apply on any such invoice raised, irrespective of the negative balance total. If payment of this invoice is not received within our standard payment terms, we reserve the right to lock Your account until payment has been received.
• If You have any Subtest uses in excess of Your Annual Use subscription, You understand that Pearson retains the right to automatically apply any new usage purchases to cover the costs of any excess usages accrued during the previous licence period and will add the remainder, if any to Your subscription.
• Excess Subtests at the end of the Subscription Term will be automatically carried forward if the Licence is renewed. Excess Subtests will not be credited if Your Licence is not renewed.
• Additional Users may be added to a Licence anytime during the Licence term. Cost will be prorated to the nearest full month. Some Test(s) require the use of manipulative items or response booklets that must be purchased separately.
• The CVLT, PPVT, and GFTA assessments cost the equivalent of three subtests.
• The WIAT, KTEA and WRAT subtests cost the equivalent of 0.5 subtests

Licence version effective date 23rd January 2024