Curriculum Delivery Agreement 1 31 2011

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CURRICULUM DELIVERY AGREEMENT

This Curriculum Delivery Agreement is entered into as of January 2$, 2011 (the

"Effective Date"), by and between the Arizona Board of Regents, for and on behalf of

Arizona State University, Department of Online Education ("ASU"') and Knewton Inc., a

Delaware corporation ("Knewton"). ASU and Knewton are hereinafter collectively

referred to as the "Parties" and this Curriculum Agreement, as amended from time to

time, is referred to as this "Agreement").

WHEREAS, ASU has developed and owns curriculum, materials and information

in and for MAT-142 and MAT-II? courses and ASU would like to deliver these courses

to students via a web-based delivery method (each of MAT-l 42 and MAT-I 17 is referred

to as a "Math Course", and together the "Math Courses"); and

WHEREAS, Knewton has an established history and demonstrated record for the

delivery of mathematics educational programs to individuals via a web-based interface,

including self-directed, self-paced, stand-alone college math remediation courses that

solely use Knewton Content and incorporate math concepts analogous to those conceptsprovided in MAT-142 and MAT-I17 ("Readiness 142" and "Readiness 117",

respectively). Readiness 142 and Readiness 117 are collectively referred to herein as the

"MRC Modules"; and

WHEREAS, ASU wishes to engage Knewton and Knewton wishes to be engaged

(i) to deliver the Software in combination with the Math Courses and/or the MRC

Modules as an online service (the "SAAS Services") and (ii) to assist ASU with

integration of the SAAS Services into ASU's existing online educational programming

and delivery methods to create the Educational Program; and

WHEREAS, the Parties wish to set forth their mutual understanding andagreement regarding their relationship in the delivery of the SAAS Services.

NOW THEREFORE, the Parties agree and understand as follows:

1. DEFINED TERMS. Capitalized terms used in this Agreement shall have the

meanings set forth in this section, or in the section where they are first used.

1.1. "ASU Content" means ASU's name, any ASU Mark, and all Content

provided, imported or uploaded to the SAAS Services by ASU or its employees,

including, but not limited to, the Math Courses and any Content provided by ASU's

professors. ASU Content specifically excludes Usage Data and Profile Data.

1.2. "ASU Third-Party Software" means any software that is proprietary to a

Third Party licensed to ASU, including Pearson Learning Studio LMS.

1.3. "Authorized User" means students, employees and authorized agents of

ASU who are communicated to Knewton to be authorized to utilize the SAAS Services

through the Educational Program pursuant to a valid license purchased pursuant to this

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Agreement and who are provided with access to the SAAS Services by virtue of apassword or other form of authentication provided by ASU. ASU shall undertake.reasonable efforts to make all Authorized Users aware of the provisions of thisAgreement as applicable to such Authorized User's use of the SAAS Services, and shalluse commercially reasonable efforts to cause Authorized Users to comply with suchprovisions,

1.4. "Content" means, without limitation, any and all, sketches, texts, files,

links, images, photos, video, sound, scripts, notes, works of authorship, articles, or othersimilarmaterials.

1.5. "Documentation" means all of the written, printed, electronic or otherformat materials published or otherwise made available by Knewton that relate to thefunctional, operational andlor performance capabilities of the SAAS Services.

1.6. "Educational Program" means the integration of the Knewton Technology,ASU Content and ASU Third Party Software via a single online sign-on experience 'With

Pearson Learning Studio LMS, pursuant to which the Knewton Modules will beaccessible by ASU students.

1.7. "Intellectual Property Rights" shall mean any and all rights existing fromtime to time under patent law, copyright law, trademark law, trade secret law, unfaircompetition law, moral rights law, publicity rights law, privacy rights law, and any andall other similar proprietary rights, including but not limited to, patents, trademarks,service marks, tradenames, brand names, trade or business names, logos, design rights,

copyright (including copyright in computer programs), database rights, semi-conductortypography rights, know-how, methodologies and concepts, together with all goodwillattaching or relating thereto; extending to any renewals and extensions thereof, now or

hereafter in force and effect in any jurisdiction whatsoever.

1.8. "Knewton Module" means the delivery of a Math Course or a MRCModule via the SAAS Services to an Authorized User for the duration of an ASUacademic term.

1.9. "Knewton Technology" means the SAAS Services, the Software, theDocumentation, and any of Knewton's proprietary technology, including software,processes, algorithms, user interfaces, know-how, technologies, designs and othertangible or intangible technical material or information made available to ASU andAuthorized Users by Knewton in providing the SAAS Services, together with all

Intellectual Property Rights therein, including, but not limited to, any computer software(in object code and source code form), scripts, programming code, data, information orHTML script developed by Knewton or its suppliers, including any trade secrets, knowhow, methodologies and processes).

1.10. "Knewton Third-Party Software" means any software that is proprietary toa Third Party licensed to Knewton.

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1.11. "MAT 142" means ASU's entry-level math course ("college math"),

requirement for graduation.

1.12. "MAT 117" means ASU's college-level algebra course.

1.13. "Profile Data" means an Authorized User's first and last name, email andany other log-in information. Profile Data specifically excludes Sensitive User

Information.

1.14. "Service Commencement Date" means June 1, 2011, or such later date

upon which the SAAS Services (as to Math-142 and Readiness 142 only) go live and are

fully operational.

1.15. "Software" means Knewton's proprietary web-based adaptive learning

platform that is used by Knewton to provide the SAAS Services and all Knewton Third

Party Software incorporated into or utilized by the Software.

1.16. "Termination Payment" means, in the event of a termination pursuant to

Section 7.2 that will result in the termination date occurring: (i) at any time from the

Effective Date through and including the first (I") anniversary of the Service

Commencement Date: $1,000,000; (ii) at any time after the first (1st) anniversary of the

Service Commencement Date but prior to the second (2nd) anniversary of the Service

Commencement Date: $750,000; (iii) at any time after the second (2nd) anniversary of the

Service Commencement Date but prior to the third (3rd) anniversary of the Service

Commencement Date: $500,000; and (iv) at any time after the third (3rd) anniversary of

the Service Commencement Date: $0. .

1.17. "Third Party" means persons, corporations and entities other thanKnewton, ASU or any of their affiliates.

1.18. "Usage Data" means any and all information submitted by a user, or

otherwise collected by Knewton, in connection with any user's access and usage of the

SAAS Services, including, but not limited to, use and access of Content, tracking of user

usage, performance data and reports, score results, data related to knowledge retention,

session lengths, search terms used, and any other information that is not Sensitive User

Information. Usage Data specifically excludes Profile Data, Sensitive User Information

(as defined inSection 6.6 below) and ASU Content.

2. PRODUCT SPECIFICATIONS AND DELIVERY.

2.1. Product Deliverv. Knewton will administer and deliver the SAAS

Services to Authorized Users via the Educational Program. The Educational Program

and SAAS Services (as to Math-142 and Readiness 142 only) will go live and be fully

operational on or before May 31, 2011 (the "1st Delivery Date "); provided however, that

Knewton's ability to meet the foregoing 1st Delivery Date is subject to and conditioned

upon the cooperation of ASU and the providers of ASU Third Party Software and in their

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meeting the milestone deliverables set forth on Exhibit A. To the extent any milestonedeliverable set forth on Exhibit A is delayed as a result of ASU or an ASU Third PartySoftware provider's actions or inactions, the 1st Delivery Date shall be extended by thecorresponding number of days that such delay was caused by such action or inaction,provided, however, that such delay by ASU or an ASU Third Party Software provider

shall not constitute a default or breach by ASU. The Educational Program with SAAS

Services incorporating Math-117 and Readiness 117 will go live and be fully operationalon or before August 15, 2011 (the "Znd Delivery Date"); provided however, that suchdate is conditioned on the cooperation of ASU and the providers of ASU Third PartySoftware in meeting the milestone deliveries to the extent set forth on Exhibit A. To theextent any milestone deliverable set forth on Exhibit A is delayed as a result of ASU oran ASU Third Party Software provider'S actions or inactions, the 2nd Delivery Date shall

be extended by the corresponding number of days that such delay was caused by suchaction or inaction. The Parties agree to use commercially reasonable efforts to meet the1st Delivery Date and 2nd Delivery Date. Notwithstanding any of the foregoing, to theextent the SAAS Services incorporating Math-117 and Readiness 117 are not fullyoperational as of the 2nd Delivery Date, then the parties shall extend the 2nd Delivery

Date to a date after the 2nd Delivery Date (the "Extended 2nd Delivery Date") that theparties mutually agreewill provide sufficient time for such SAAS Services to be fullyoperational, and such delay until the Extended 2nd Delivery Date shall not constitute adefault or breach by either party under this Agreement and neither party will have theright to claim any damages resulting from such delay as may be provided by thisAgreement or otherwise.

2.2. Product Content. Knewton will use its best efforts to cause the SAASServices to satisfy the Knewton Performance Criteria. As used herein, the "KnewtonPerfonnance Criteria" shall mean the following requirements, as the same may beamended by mutual agreement of the Parties from time to time:

(a) Provision ofa training experience, instructing Authorized Users on how touse the features and functionality of the SAAS Services

(b) Ability to conduct an initial proficiency assessment which will begin theadaptive learning process for each Authorized User.

(c) Ability to track proficiency and mastery by each Authorized User of theconcepts identified in the applicable Math Course or MRC Module.

(d) Ability to. continually assess, remediate, then reassess an Authorized

User's progress for each significant concept taught in the applicable MathCourse or MRC Module.

(e) Ability to assess Authorized User's performance with various tools,including pre-tests, administering homework sets, quizzing and testing.

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(f) Ability to deliver on-demand videos covering various lessons, strategies

and concepts covered by the applicable Math Course or MRC Module.

(g) Provide an interface for Authorized Users to follow a guided sequence of

prioritized tasks (including a linear syllabus) to learn the applicable coursematerial.

(h) Include detailed concept descriptions and corresponding explanations,both in writing and via video.

(i) Demonstrated improvements in student performance, which shall be

determined based on the following factors: (i) improvements in thesuccess of MAT142 and MATI 17 students in content proficiency; (ii)improvements in content proficiency and passing standards of students inthe developmental courses; and (iii) improvements in the success ofdevelopmental students in subsequent MAT142 and MATll?

2.3. Reporting. Knewton shall provide student level proficiency reporting on aconcept-by-concept basis and aggregated Usage Data for each Knewton Module beingadministered at the time requested (each, a "Student Proficiency Report"). StudentProficiency Reports shall be delivered to ASU a minimwn of once per academic term and

a maximwn of three per academic term and shall reflect student performance through theshorter of (i) the life of the applicable Knewton Module or (ii) two (2) years.

2.4. Other Services. ASU may request that Knewton provide additional servicesbeyond those set forth inthis Agreement on terms and for the consideration agreed uponthe Parties from time to time. Knewton shall negotiate in good faith with ASU regardingthe terms and provisions according to which such additional services would be provided

by Knewton.

3. HOSTING, TECHNICAL SUPPORT AND TRAINING.

3.1. Hosting. Knewton or a third party appointed by Knewton will host the SAASServices. On the 1st Delivery Date, it is anticipated that the SAAS Services will behosted at the facility set forth on Exhibit A (the "Initial Hosting Facility"). Knewtonmay change the hosting facility from the Initial Hosting Facility to either (1) anotherThird Party hosting facility that shall be reasonably acceptable to ASU or (2) its ownhosting facility, which shall be owned (or managed) by Knewton. The Initial Hosting

Facility, and any subsequent hosting facility where the SAAS Services are hosted, is

referred to herein as the "Hosting Facility." Knewton will be solely responsible formanaging and maintaining the equipment (including computers and services),infrastructure, and other systems containing ASU data (the "Managed Systems") at theHosting Facility. Knevvton shall use its commercially reasonable efforts to design,

manage and operate the Managed Systems in accordance with information securitystandards customary in Knewton's industry and in compliance with all relevant federaland state laws, regulations and policies. In addition, Knewton will use its commercially

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reasonable efforts to manage the Managed Systems in compliance with ASU's policies

and standards regarding data usage and information security as currently in effect (true

and accurate copies of which have been provided to Knewton). ASU may change such

policies and standards on not less than ninety (90) days' advance notice to Knewton, and

Knewton will use its commercially reasonable efforts to comply with such changed

policies and standards (provided that they do not increase Knewton's costs of providing

the SAAS Services). If any such changed policies and standards increase Knewton'scosts, then the parties will negotiate in good faith to implement an appropriate adjustment

to the Fees to reflect such increased costs. In an effort to diminish information security

threats:

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(a) Knewton will provide ASU the most recent SAS 70 review completed by

the Hosting Facility. Knewton will further provide ASU with additional

SAS70 reviews, andlor any published documentation from the Hosting

Facility relating to information security requirements, as the same

becomes available from the Hosting Facility. At the request of ASU, not

more than once every two years, additional SAS70 or substantially

equivalent reviews from the Hosting Facilities may be obtained, inaccordance with ASU policies and in a manner consistent with the current

practice of the Hosting Facility, in each case as the same may be amended

from time to time. Any information provided hereunder with respect to

the Hosting Facility, including any SAS70 report, shall be subject to the

confidentiality provisions of this Agreement. Furthermore, at the request

of Knewton (and only if requested by the Hosting Facility), ASU will use

its commercially reasonable efforts to .enter into a confidentiality provision

with the Hosting Facility that contains terms consistent with Section 10 of

this Agreement (provided that any such confidentiality agreement with th e

Hosting Facility shall be subject to the limitations setforth in Section 10.3

hereof).

(b) As to the Managed Systems only, Knewton will perform periodic scans for

unauthorized applications, services, code and system vulnerabilities on the

at regular intervals in accordance with its current practices.

(c) In addition, a s to the Managed Systems only, Knewton will provide and

conduct operational, security and vulnerability reports and assessments to

ASU in accordance with its current operational practices, as the same may

be amended from time to time.

(d) Knewton will limit access to ASU's resources, including sensitive data, to

those of its personnel who have a legitimate business need based, in each

case, on the individual's job-related assignment. Access should be

approved and tracked by the system owner to ensure proper usage and

accountability and shall be subject to review by ASU upon request.



3.2. Technical Support. During the Term, Knewton will provide second level

technical support for the SAAS Services via an email helpdesk for up to five (5) ASU

employees notified in writing by the ASU account manager to Knewton ("Designated

Support PersolU1el"). The email helpdesk shall be operational during the following

hours: from 7 AM MST to 7 PM MST, Monday through Thursday and from 7 AM MST

to 4 PM MST, Friday through Sunday ("Support Hours"). In addition, during the Term,

Knewton will provide a webpage of technical requirements and a basic list of FAQs for

Authorized User self-support and ASU staff reference. Knewton shall respond to all

support inquiries from Designated Support Personnel within three (3) business hours

during Support Hours. Knewton will use commercially reasonable efforts to resolve any

problem reported by any Designated Support Personnel regarding the SAAS Services,

provided that with respect to any problems that Knewton reasonably determines are

critically affecting the SAAS Services, Knewton will use the aforementioned efforts to

resolve the problem promptly andlor escalate the problem to Knewton's account manager

and then its management personnel responsible for operations. ASU acknowledges that

nothing in this Agreement creates or imposes any obligation upon Knewton to provide

support services of any nature to any Authorized User or any Third Party. Knewton will

promptly refer to ASU any requests for technical support that Knewton receiveshereunder but reasonably determines to be outside the scope of its obligations under this

Agreement.

3.3. Training. Knewton will provide ASU faculty and administrators up to twenty

five hours of on-site training regarding the use of the SAAS Services. Such training will

occur over a consecutive 3 day period prior to the 1st Delivery Date, which training shall

be sufficient for ASU facility and administrators to provide support and deliver the SAAS

Services to students. The training will be delivered at the times and locations requested

by ASU. Knewton will provide additional training upon request from ASU, subject to

the parties mutually agreeing on the fees to be paid by ASU for such additional training.

3.4. Dedicated Staff. Both Parties shall provide a dedicated account manager to

respond to questions and inquiries from ASU or Knewton personnel regarding the

obligations of the other Party under this Agreement, on an as needed basis. Knewton's

account manager, and any subsequent replacement, shall be preapproved by ASU.

Knewton's initial account manager will be Brad McIlquham. ASU's initial account

manager will be Kari Barlow.

4. CONSIDERATION. As consideration for the SAAS Services, ASU will pay

Knewton $100 per registered student per Knewton Module (the "Fees"). ASU will report

registered students to Knewton fourteen days after commencement of a Knewton Module

by a student in the case of the MRC Modules and within fourteen days aftercommencement of each ASU academic term in the case of Math Courses (which reported

students shall be referred to herein as Authorized Users). Knewton will invoice ASU for

the use of the SAAS Services by Authorized Users on a per term basis. Payment of

undisputed Fees shall be due within 30 days following receipt of invoice. The Fees are

non-refundable. Overdue amounts shall accrue interest at the rate of one and one-half

percent (1 Y z %) per month, or at the highest legal interest rate, if less. Knewton reserves

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the right (in addition to any other rights or remedies Knewton may have) to suspend the

SAAS Services provided hereunder, and Authorized User's access to the SAAS Services,

if any Fees are more than sixty (60) days overdue until such amounts are paid in full.

5. TERM. This Agreement shall commence as of the Effective Date and end effective

as of the earlier of (i) the termination date if terminated pursuant to Section 7 or (ii) the

expiration of three years. The Parties may extend the term for two additional one-year

terms, which term extensions shall be memorialized in writing and acknowledged by both

Parties.

6. INTELLECTUAL PROPERTY; LICENSES.

6.1. Right to Use and Access. Subject to the terms and conditions of this

Agreement, Knewton grants to ASU and its Authorized Users a non-exclusive right to

use and access the SAAS Services for which a license has been purchased hereunder,

provided that the SAAS Services are used solely as part of the Educational Program and

in accordance with applicable Documentation provided by Knewton.

6.2. Usage Restrictions. Without limiting the generality of the foregoing, ASU

agrees that except as authorized in writing it will not: (i) use the SAAS Services for any

purposes beyond the scope of this Agreement; (ii) authorize or knowingly permit use of

the SAAS Services by. persons other than Authorized Users; (iii) rent, lease, loan, or sell

access to the SAAS Services to any third party other than as permitted under this

Agreement; (iv) adapt, alter, modify, translate or create derivative works of the Software

or Documentation; (v) alter, translate, or modify the SAAS Services or any part thereof;

(vi) combine or integrate the SAAS Services with software or technology not provided by

Knewton hereunder or expressly contemplated by this Agreement; (vii) decompile,

disassemble, reverse engineer or otherwise attempt to reconstruct, obtain or perceive the

source code from which any component of the SAAS Services are compiled orinterpreted.

6.3. Usemames and Passwords. ASU may permit any Authorized User to use and

access the SAAS Services pursuant to this Agreement, which such use and access shall

occur through the Educational Program. ASU shall be responsible for providing

Authorized Users with a unique usemame and password (which usemame and password

may be such Authorized User's usemame and password used to access other services

provided by ASU (an "ASU Password"» to use and access the Educational Program.

Additionally, ASU acknowledges and agrees that (i) only Authorized Users are entitled to

access the SAAS Services and (ii) ASU will notify Knewton promptly upon knowledge

of any actual or suspected unauthorized use of any account, usemame, or passwords, orany other breach or suspected breach of this Agreement. ASU further acknowledges that

(i) each Authorized User usemame and password may only be used to access the SAAS

Services during one (1) concurrent login session, and (ii) its policies prohibit the sharing,

reassignment or use of usemames and passwords by more than one individual Authorized

User. Knewton acknowledges that at the present time ASU does not nor does it have the

ability to monitor concurrent logins. As between ASU and Knewton, Knewton shall bear

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sole responsibility for monitoring concurrent logins, including the development and

implementation of any tools necessary to do so.

6.4. Retained Rights; IP Ownership.

(a) Knewton Ownership. The Knewton Technology is the exclusive

property of Knewton or its suppliers. Knewton hereby retains all right, title and interest

in and to the Knewton Technology. Except as expressly set forth in Section 6.1, no

express or implied license or right of any kind is granted to ASU regarding the Knewton

Technology, or any part thereof, including any right to obtain possession of any source

code, data or other technical material relating to the SAAS Services. ASU acknowledges

that it neither owns nor acquires any rights in any of the foregoing not expressly granted

by this Agreement and that the foregoing constitutes proprietary information andlor trade

secrets of Knewton or its suppliers and is or may be protected by U.S. copyright, trade

secret and similar laws. ASU further acknowledges that Knewton retains the right to use,

and to grant third parties the right to use, the Knewton Technology, or any part thereof,

for any and all purposes whatsoever in Knewton's sole discretion.

(b) ASU Ownership. ASU Content is the exclusive property of ASU,

its employees, students or its suppliers. ASU hereby retains all right, title and interest in

and to all ASU Content provided by ASU to Knewton pursuant to this Agreement.

During the Term, ASU grants to Knewton a limited, non-exclusive, royalty-free license

to store ASU Content and make it available through the SAAS Services to Authorized

Users solely for all reasonable and necessary purposes required or contemplated by this

Agreement. Knewton acknowledges that ASU Content constitutes proprietary

information andlor trade secrets of ASU or its suppliers and that ASU Content is or may

be protected by U.S. copyright, trade secret and similar laws. Knewton further

acknowledges that ASU retains the right to use, and to grant third parties the right to use,

the ASU Content, or any part thereof, for any and all purposes whatsoever in ASU's solediscretion. Knewton shall have an affirmative obligation to backup all Content stored on

their system, including any ASU Content.

6.S. Ownership of Usage Data. As between ASU and Knewton, any and all

Usage Data generated in connection with the SAAS Services shall be owned exclusively

by Knewton. Without limiting the generality of the foregoing, as the exclusive owner of

such Usage Data, Knewton shall have the irrevocable and perpetual right to use,

reproduce, display, modify, create derivative works and disclose the Usage Data in any

manner in connection with its business operations or otherwise and for any other purpose

whatsoever, including without limitation (i) in order to test and improve the SAAS

Services; (ii) in the development and distribution of new products and services; and (iii)in order to prepare and provide comparative benchmarks, During the Term, Knewton

grants to ASU a limited, revocable and nonexclusive right to use and access the Usage

Data for the limited purposes required and contemplated by this Agreement. To the extent

any Student Proficiency Reports are compiled from the Usage Data pursuant to this

Agreement, Knewton grants to ASU a perpetual, nonexclusive, royalty-free, worldwide

right to use such Student Proficiency Reports for any purpose whatsoever. ASU

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acknowledges and agrees that the Usage Data and Student Proficiency Reports constitute

proprietary information and trade secrets of Knewton subject to the confidentiality

provisions of Section 10 hereof.

6.6. Profile Data; Sensitive User Information. At the time an Authorized User

first accesses the SAAS Services pursuant to this Agreement, ASU acknowledges that as

between such Authorized User and Knewton, such Authorized User will grant Knewton a

limited, non-exclusive, perpetual right to store and use such Authorized User's Profile

Data in connection with such Authorized User's use of Knewton software services and

products, including the SAAS Services. ASU and Authorized Users shall not provide

Knewton with any of the following information under this Agreement: an Authorized

User's birthday, home address, phone number, ASU Password, ethnicity and/or social

security number (collectively, the "Sensitive User Infonnation"). Between Knewton and

ASU, Knewton will bear sole responsibility for any rights granted or agreements made

between Authorized Users and Knewton, and ASU shall have no obligations with respect

to enforcement or otherwise with respect to the rights and obligations referenced in this

Section 6.6.

6.7. Ownership of New Works. For the avoidance of doubt, to the extent either

Party creates new intellectual property during the course of this Agreement, as between

ASU and KNEWTON, the creating Party shall have full and complete ownership of any

and all Intellectual Property Rights in such intellectual property. At the termination of

this Agreement, any derivative worksshall be disassembled with each Party owning their

respective contributions (unless otherwise agreed in writing).

7. EVENTS OF DEFAULT, REMEDIES AND TERMINATION.

7.1. Tennination For Cause. In the event that either Party is in material default in

the performance of any obligation under this Agreement or in material breach of anyprovision of this Agreement, then the non-defaulting/non-breaching Party has the option

to terminate this Agreement only after written notice of default and opportunity to cure

.has been given to the defaultinglbreaching Party. The notice of default must provide for

an opportunity to cure of at least thirty (30) days following receipt of notice, or such

longer time period as may be specifically prescribed in this Agreement. Ifthe breaching

Party receiving the notice has not cured the default or breach before the cure date stated

in the notice, then in addition to any other remedies available by law, the non-breaching

Party may terminate this Agreement by giving the breaching Party written notice of

termination, which will be effective upon delivery. If the default can be cured, but cannot

by its nature be cured in thirty (30) days, the Parties will agree to extend the cure period

for such period as is reasonably necessary in order to cure the default; provided, however,if after six months from the occurrence of the material default the default cannot be

cured, the nondefaulting party may terminate this Agreement with. no further

responsibilities.

7.2. Termination Without Cause. Either Party may terminate this Agreement for

any reason by providing at least 90 days advance written notice of termination to the

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other Party. If Knewton terminates this Agreement pursuant to this Section 7.2, Knewton

shall (at the request of ASU) provide the transition services contemplated in Section 7.7and cooperate in good faith with ASU to transition the services provided pursuant to thisAgreement to the persons identified by ASU at that time. If ASU terminates thisAgreement pursuant to this Section 7.2, ASU shall pay Knewton, as full compensation,

on or prior to the date such termination becomes effective: (1) all Fees that are due andpayable through the termination date; and (2) the Termination Payment.

7.3. Termination Due to Insolvency. ASU shall have the right to terminate thisAgreement at any time in the event Knewton files a petition in bankruptcy, or itadjudicated bankrupt, or if a petition in bankruptcy is filed against Knewton and not

discharged within thirty (30) days, or if Knewton makes an assignment for the benefit of

its creditors or an arrangement pursuant to any bankruptcy law for the settlement ofKnewton's debts, or if a receiver is appointed for Knewton or its business.

7.4. Effect of Termination or Expiration. Upon termination or expiration of thisAgreement and except as set forth in Section 7.7, all licenses granted hereunder shall

immediately terminate (except as set forth in Section 7.7) and any and all fees invoiced orotherwise accrued on or before the date of termination but not paid shall be due andpayable.

7.5. Mitigation of Damages. If a Party becomes aware of any breach of thisAgreement by the other Party, the nonbreaching Party shall use its commerciallyreasonable efforts to mitigate any damages arising out of or relating to such breach,including incurring costs only to the minimum extent necessary to remedy the breachwhich would otherwise give rise to damages.

7.6. No Waiver. No waiver of satisfaction of a condition or nonperformance of

an obligation under this Agreement will be effective unless it is in writing and signed bythe Party granting the waiver. No waiver by either Party of any breach of the provisionsof this Agreement by the other Party shall in any way be construed to be a waiver of any

future breach of bar the right to insist on strict performance of the provisions of thisAgreement.

7.7. Orderly Transition. Notwithstanding anything contained herein to thecontrary, in the event that this Agreement is terminated (except for an ExemptedTermination (as defined below» and at ASU's option and expense, Knewton shallcontinue providing the services contemplated herein and providing Authorized Users

accessto the SAAS Services for sufficient time that all Authorized Users using the SAAS

Serviceshave completed their coursework for which Fees have been paid, but in no eventshall such period exceed six (6) months (the post termination services are referred to asthe "Transition Services", and the period during which such Transition Services areprovided are herein referred to as the "Transition Period"). The Fees for any TransitionServices shall be as set forth in Section 4, and shall be payable in full on the first day of

the TransitionPeriod. The Transition Services will be provided at least at the same levelsof quality and timeliness of performance as such services were provided prior to the

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termination, and in a professional manner, with high quality and in accordance with

industry standards. ASU may, upon written notice to Knewton, modify the specificTransition Services to be provided to a subset of the services provided under thisAgreement and may reduce the term for the Transition Period to less than that specifiedabove, provided that Knewton shall not be obligated to refund to ASU any Fees paid by

. ASU nor shall ASU be relieved of any obligation to pay any Fees either accrued or

invoiced on or prior to the date this agreement is terminated. The parties may alsomutually agree in writing to extend the Transition Period, subject to the parties mutuallyagreeing on the fees to be paid by ASU for. such Transition Services during suchextended period. Knewton will provide Student Proficiency Reports using Usage Datafrom Authorized Users through the Transition Period. Upon termination of this

Agreement the parties agree to work in good faith, at ASU's sole cost and expense, toeffectuate an orderly transition of the services contemplated herein. As used herein, an"Exempted Termination" means either: (a) a termination of this Agreement by Knewtonpursuant to Section 7.1 for a breach by ASU of Section 4; or (b) a termination of thisAgreement by Knewton pursuant to Section 7.2 under circumstances where either (i) theprovision of the SAAS Serviceshas been or is reasonably likely to be enjoined or (ii) the

continued provision of the SAAS Services would expose Knewton to monetary damagesin excess of the feespaid by Knewton to ASU under this Agreement.

8. REPRESENTATIONS AND WARRANTIES.

8.1. Knewton Representations and Warranties. Knewton represents and warrants

that: (a) the services to be performed by Knewton under this Agreement will be

performed in a professional manner and Knewton will conform the SAAS Services to thePerformance Criteria and other standards set forth in this Agreement; (b) all services willbe performed by qualified, trained, and properly equipped personnel; (c) Knewton willcomply with all applicable Federal, state and local laws, regulations, rules and

ordinances; (d) to its knowledge, all written materials supplied to ASU in connection withthe transactions contemplated herein are true, correct and accurate responses as of thedate of their submission; and (e) that it owns the Knewton Technology or has obtained allrights in the Knewton Technology to provide the SAAS Services to ASU and convey thelicenses granted herein to ASU so that the use of the SAAS Services by ASU in

. accordance with the terms of this Agreement do not violate the Intellectual PropertyRights or other rights of a Third Party. Notwithstanding the foregoing, (i) in respect ofany breach by Knewton of Section 8.1(a) or Section 8.(b), ASU shall, before seekingmonetary damages from Knewton, pursue in good faith the support services relating to

the SAAS Services available to it pursuant to Section 3.2 of this Agreement and shallotherwise comply with its duty to mitigate under Section7.5.

8.2. ASU Representations and Warranties. ASU represents and warrants toKnewton that it owns.the ASU Content or has obtained all rights in the ASU Content toprovide the ASU Content to Knewton and convey the licenses granted herein to Knewton

so that the use by Knewton to provide the SAAS Services pursuant to this Agreement donot violate the Intellectual Property Rights or other rights of a Third Party.

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9. STATE OF ARIZONA PROVISIONS.

9.1. Nondiscrimination. The parties agree to comply with all applicable state andfederal laws, rules, regulations and executive orders governing equal employmentopportunity, immigration, nondiscrimination, including the Americans with DisabilitiesAct.

9.2. Conflict of Interest. ASU's participation in this Agreement is subject toSection 38-511 of the Arizona Revised Statutes which provides that this Agreement maybe cancelled if any person significantly involved in initiating, negotiating, securing,drafting or creating this Agreement on behalf of ASU is, at any time while thisAgreement or any extension thereof is in effect, an employee or agent of the other party

to this Agreement in any capacity or a consultant to any other party with respect to thesubject matter of this Agreement.

9.3. Notice of Arbitration Statutes. As required by Sections 12-133 and 12-1518of the Arizona Revised Statutes, notice is provided that the parties to this Agreement will

be required to make use of mandatory arbitration of any legal action that is filed in theArizona superior court concerning a controversy arising out of this Agreement if: (1) thecourt finds or the parties agree that the amount in controversy does not exceed thejurisdictional limit established by rule of that court for mandatory arbitration, or (2) thisagreement is a public works contract and the amount in controversy is less than onehundred thousand dollars ($100,000).

9.4. Failure of Legislature to Appropriate. If ASU's performance under thisAgreement depends upon the appropriation of funds by the Arizona Legislature, and ifthe Legislature fails to appropriate the funds necessary for performance, then ASU mayprovide written notice of this to Knewton and cancel this Agreement without further

obligation of ASU. Appropriation is a legislative act and is beyond the control of ASU.

9.5. Weapons, Explosive Devices and Fireworks. ASU prohibits the use,possession, display or storage of any weapon, explosive device or fireworks on all landand buildings owned, leased, or under the control of ASU or its affiliated or relatedentities, in all ASU residential facilities (whether managed by ASU or another entity), inall ASU vehicles, and at all ASU or ASU affiliate sponsored events and activities, exceptas provided in Section 12-781 of the Arizona Revised Statutes or unless written

permission is given by the ASU Police Department CASUPD). Notification by Knewtonto all persons or entities who are employees, officers, subcontractors, consultants, agents,guests, invitees or licensees of Knewton ("Knewton Parties") of this policy is a condition

and requirement of this Agreement. Knewton further agrees to enforce this contractualrequirement against all Knewton Parties. ASU's policy may be accessed through thefollowingweb page: http://www.asu.edulaad/manuals/pdp/pdp201-05.html.

9.6. Confidentiality. Any other provision of this Agreement to the contrarynotwithstanding, the parties acknowledge that Arizona State ASU is a public institution,and as such is subject to Title 39, Chapter 1, Article 2 of the Arizona Revised Statutes

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http://www.asu.edulaad/manuals/pdp/pdp201-05.html.

http://www.asu.edulaad/manuals/pdp/pdp201-05.html.



(Sections 39-121 through 39-127). Any provision regarding confidentiality is limited to

the extent necessary to comply with the provisions of state law.

9.7. Indemnification. Each Party shall be responsible for its own and its agents'

negligence, actions and omissions. Any other provision of this Agreement to the contrary

notwithstanding, the parties acknowledge that Arizona State ASU is a public institution

and any indemnification or hold harmless provision shall be limited as required by Statelaw, including without limitation Article 9, Sections 5 and 1of the Arizona Constitution

and Sections 35-154 and 41-621 of the Arizona Revised Statutes.

9.8. Service Marks and Trademarks. For purposes of this provision, the phrase

"ASU Mark" means any trade name, trademark, service mark, logo, domain name, and

any other distinctive brand feature owned or used by ASU. Knewton agrees to comply

with ASU's trademark licensing program concerning any use or proposed use by

Knewton of any ASU mark on goods, in relation to services, and in connection with

advertisements or promotion of Knewton or its business. Prior to any use of an ASU

mark by Knewton or its affiliates or successors or assigns, Knewton will comply with

ASU Policy PUR 701: Trademark Licensing and submit the proposed use of the ASUmark (together with a sample or specimen of the intended use) to ASU's Trademark

Licensing Coordinator for approval. Except as expressly authorized in this Agreement,

Knewton is not permitted to use any ASU mark without prior written approval of ASU's

Trademark Licensing Coordinator. Knewton's use of any ASU mark must comply with

ASU's requirements, including using the "circle R" (®) indication of a registered

trademark.

9.9. Student Educational Records. ASU and Knewton recognize that student

educational records are protected by the federal Family Educational Rights and Privacy

Act (FERPA) (20 U.S.C. § 1232g). FERPA permits disclosure of student "educational

records" to "school officials" that have a "legitimate educational interest" in theinformation. (For definitions of quoted terms, see ASU Policy usr 107-01: Release of

Student Intormation.) The federal Family Compliance Office has recognized that

institutions can designate other entities, including vendors and consultants, as "other

school officials." Designated representatives of Knewton will be designated as "other

school officials" for purposes of this Agreement. No designated representative of

Knewton shall disclose student educational records it receives under this agreement to

any third party, except with the prior written consent of the student or as permitted by

law. Any disclosures made by Knewton will comply with ASU's definition of

"legitimate educational interest." Knewton agrees and warrants that it shall use student

educational records solely to accomplish its obligations under this agreement and solely

in a manner and for purposes consistent with the terms and conditions of this agreement

and ASU policies and procedures. Knewton agrees and warrants that it shall not make

any disclosures of student educational records without prior notice to and consent from

ASU. If any designated representative discloses or misuses any educational record, ASU

and/or Knewton will take appropriate action against the designated representative that is

similar to action ASU would take against one of its employees who disclosed or misused

the educational records of its students.

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9.10. Legal Worker Requirements. As required by Arizona Revised Statutes

§41-4401 ASU is prohibited after September 30, 2008 from awarding a contract to any

contractor who fails, or whose subcontractors/subrecipients fail, to comply with Arizona

Revised Statutes § 23-214-A. Knewton warrants that it complies fully with all federal

immigration laws and regulations that relate to its employees, that it shall, as applicable

or required under Arizona Revised Statutes § 23-214A, verify, through the employment

verification pilot program as jointly administered by the U.S. Department of Homeland

Security and the Social Security Administration or any of its successor programs, the

employment eligibility of each employee hired to work on this Agreement, and that it

shall, as applicable or required under Arizona Revised Statutes § 23-214A, require its

subcontractors and sub-subcontractors to provide the same warranties to Knewton.

9.l1. Insurance Requirements. Knewton's insurance obligations are set forth on

Exhibit B.

10. CONFIDENTIAL INFORMATION

10.1. Ownership of Confidential Information. Each Party acknowledges thatduring the performance of this Agreement, each of Knewton and ASU (each "Receiving

~") will have access to certain information disclosed by the other Party .(the

"Disclosing Party") related the Disclosing Party's business, technology, products, or

services or other confidential or proprietary information (collectively, "Confidential

Information"), or Confidential Information of third parties that the Disclosing Party is

required to maintain as confidential. Both Parties agree that all items of Confidential

Information are proprietary to the disclosing Party or such third party, as applicable, and

shall remain the sole property of the Disclosing Party or such third party.

10.2. Mutual Confidentiality Obligations. Each party agrees as follows: (i) to

use the Confidential Information of the Disclosing Party only for the purposes describedherein; (ii) that it will not reproduce the Confidential Information of the Disclosing Party

other than as permitted herein and will hold in confidence and protect such Confidential

Information from dissemination to, and use by, any third party other than in accordance

with paragraph (iv) below; (iii) that it will not create any derivative work from

Confidential Information of the Disclosing Party in violation of this Agreement or the

Disclosing Party's copyrights; (iv) to restrict access to the Confidential Information of the

Disclosing Party to such of the Receiving Party's personnel, agents, and/or consultants

and contractors, if any, who have a need to have access and who have been advised of the

obligation of confidentiality and have agreed in writing to treat such information in

accordance with the terms of this Agreement; and (v) to exercise the same degree of care

and protection with respect to the Confidential Information that it exercises with respectto its own Confidential Information and not to directly or indirectly disclose, copy,

distribute, republish or allow any Third Party to have access to any Confidential

Information. The foregoing restrictions shall not apply to Confidential Information that is

(a) already known by the Receiving Party; (b) becomes, through no act or fault of the

recipient, publicly known; (c) received by Receiving Party from a third party without a

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restriction on disclosure or use; or (d) independently developed by Receiving Partywithout reference to the Disclosing Party's Confidential Information.

10.3. Notwithstanding anything contained herein to the contrary, the partiesacknowledge that Arizona State University is a public institution, and as such is subject

to Title 39, Chapter 1,Article 2 of the Arizona Revised Statutes (Sections 39-121 through

39-127). A ny provision regarding confidentiality is limited to the extent necessary tocomplywith the provisions of state law.

11. RESERVED.

12. INDEMNIFICATION. Each party shall be responsible for its own negligence,actions or omissions.

13. MISCELLANEOUS.

13.1. Disclaimer of Warranties. Except for the express warranties provided

herein, the SAAS Services, Documentation, Knewton makes no (and hereby disclaimsall) other warranties, whether written, oral, express, implied or statutory, including,

without limitation, any implied warranties of merchantability, title, non-infringement, orfitness for a particular purpose, with respect to the SAAS Services.

13.2. Inspection of Books and Records. Each Party shall maintain proper booksof record and account, in which true and correct entries, in all material respects, shall bemade of all material transactions and matters relating to the transactions contemplated

herein. Each Party may inspect the books and records of the other Party that arereasonably relevant to the services and compensation provided under this Agreement,provided, however, that audits must be scheduled at least ten (10) business days in

advance to avoid disruption of the nanrequesting Party's business operations. If suchinspection and audit reveals that ASU has underpaid or overpaid Knewton with respect toany amounts due and payable during the period to which such inspection and audit relate,

ASU (in the case of an underpayment) or Knewton (in the case of an overpayment) shallpromptly pay such amounts as are necessary to rectify such underpayment oroverpayment. In addition to the foregoing, to the extent required by Section 35-214 ofthe Arizona Revised Statutes, Knewton agrees to retain all records needed to substantiatethe fees charged to ASU by Knewton under this Agreement (for purposes of clarification,this is not meant to apply to the actual per unit price points set forth in this Agreement).

Knewton agrees to make those records available at all reasonable times for inspection andaudit by ASU or the Auditor General of the State of Arizona during the term of this

Agreement and for a period of five (5) years after the completion of this Agreement. Therecords shall be provided at Arizona State University, Tempe, Arizona, or anotherlocation designatedby ASU upon reasonable notice to Knewton.

13.3. Governing Law. This Agreement shall be construed in accordance withand governed by the laws of the State of Arizona, without regard to the choice of lawrules of the State of Arizona

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13.4. Assignment. Without the prior written approval of the non-

transferring/non-assigning Party, this Agreement shall not be transferred or assigned by

operation of law or otherwise by either Party, except that either Party may assign any of

its rights and obligations under this Agreement, without consent of the other Party, due to

or in connection with any merger, consolidation or sale of all or substantially all of its

related assets or any similar transaction. This Agreement shall be binding upon the

successors, legal representatives and assignees ofKnewton.

13.5. Notices. All notices, requests, demands and other communications under

this Agreement shall be in writing and shall be to the parties as set forth below:

Notice to ASU. Unless hereinafter changed by written notice to Knewton, any

notice to ASU, other than invoices and notice with respect to invoices, shall be delivered

or mailed to:

Arizona State University

ASU Online and Extended CampusAttn: Philip Regier, Exec Vice Provost & Dean

P.O. Box 870101

Tempe AZ 85287-0101

With copy to:


Office of General Counsel

PO Box 877405

Tempe AZ 85287-7405

Unless changed by written notice to Knewton, invoices and notice regardinginvoices to ASU shall be delivered or mailed to:


ASU Online and Extended Campus

Philip Regier, Executive Vice Provost and Dean

PO Box 870101

Tempe AZ 85287-0101

Notice to Knewton. Unless hereinafter changed by written notice to ASU, any

notice to Knewton shall be delivered or mailed to:

Knewton, Inc.

Attn: David Liu

19 Union Sq. West 12th FI.

New York, NY 10003

Notices shall be effective upon receipt and shall be deemed to be received as follows: i) if

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delivered by nationally recognized overnight courier, effective the business day following

the date of shipment; or ii) if by U.S. certified mail, actual receipt.

13.6. Counterparts. This Agreement may be executed in several counterparts,

each of which shall be deemed an original, but such counterparts shall together constitute

but one and the same agreement.

13.7. Entire Agreement. This Agreement and the exhibits attached hereto

contain the entire agreement and understanding of the Parties with respect to the subject

matter hereof, supersede all other prior understandings, oral or written, with respect to the

subject matter hereon, and are intended by ASU and Knewton as the final, complete and

exclusive statement of the terms agreed to by them.

13.8. Amendments. No amendment, modification, change, waiver, release or

discharge hereof and hereunder shall be effective unless evidenced by an instrument in

writing and signed by the party against whom enforcement is sought.

13.9. Severability. Should a court of competent jurisdiction later consider anyprovision of this Agreement to be invalid, illegal, or unenforceable, it shall be considered

severed from this Agreement. All other provisions, rights and obligations shall continue

without regard to the severed provision, provided that the remaining provisions of this

Agreement are in accordance with the intention of the Parties. The faihire of one Party to

assert a right hereunder shall not constitute a waiver of that right or excuse a similar

subsequent failure to perform any such term or condition by the other Party.

13.10. Promotional Use of Names. Neither Party shall use the other Party's name

or any adaptation of it in any advertising, promotional or sales literature without the prior

written consent of the other Party. Notwithstanding the foregoing, the Parties agree to

use good faith efforts to mutually create a general contract announcement press releaseindicating that the parties have entered into this Agreement.

13.11. Independent Contractors. ASU and Knewton are independent contractors

and not partners or joint venturers under this Agreement, and nothing shall be construed

as causing them to be such. Neither Party shall have authority to act in the other's name,

nor act for the other's benefit, except as is expressly provided for in this Agreement.

13.12. Force Majeure. Neither Party will have the right to claim damages or to

terminate this Agreement as a result of the other Party's failure or delay in performance

due to circumstances due to a natural disaster, actions of third parties or actions or

decrees of governmental bodies beyond the control of the affected Party, including, butnot limited to, telecommunication failures, endemic failures on the Internet or the World

Wide Web, virus ·or denial-of-service attacks launched on third party telecommunication

systems, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy,

components, war, riot, insurrection, epidemic, acts of God, or governmental action.

Notwithstanding the foregoing; if after six months from the force majeure event the

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affected p arty can not resu me perform an ce, the o ther party m ay term in ate th is A greem en t

with no further responsibilities.

[Signatures appear on the following page.]

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IN W ITN ESS W HER EO F, the Parties hereto have executed this A greem ent as of

the d ay and y ea r first w ritte n a bo ve .

ASU:

T he A rizon a B oard of R egents, for

and on behalf of A rizon a State

U n iv ers ity , D ep artm en t o f O n lin e

Education

By ~Jr~e: p~\TItle: t",ee.(.d',,,~V (Cl..- P ' Q v o ! : . t O k ' d /)Wj\

KNEWTON:

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Exhibit A

Milestone Dates and Milestone Deliveries:

February 15,2011 - A product defmition meeting with ASU and Knewton to finalize

requirements for MAT-142.

March 1, 2011 - Alpha test with ASU internal stakeholders. ASU to provide a minimum

of 10 employees to test the Readiness for 142 MRC module.

April 1, 2011 - Beta test with ASU students. ASU to provide a minimum of 20 current

students and up to 100 to test the Readiness for 142 MRC module.

April 15, 2011 - Alpha test with internal stakeholders. ASU to provide a minimum of 10

employees to test the MAT -142 course.

May 1,2011 - Beta test with ASU students. ASUto provide a minimum of20 current

students, and up to 100, to test the MAT-142 course.

May 31, 2011 - Delivery of Readiness for 142 and MAT 142 courses that are fully

operational by having completed Beta testing and being accessible to students via the

Pearson Learning Studio LMS.

June 15,2011 -r- Knewton and ASU to finalize decision to move forward with August

delivery of Readiness for 117 and MAT -117.

July 1, 2011 - Alpha test with ASU internal stakeholders. ASU to provide a minimum of

10 employees to test the Readiness for 117 MRC module.

July 15,2011 - Beta test with ASU students. ASU to provide a minimum of20 current

students and up to 100 to test the Readiness for 117 MRC module.

July 1, 2011 - Alpha test with internal stakeholders. ASU to provide a minimum of 10

employees to test the MAT-II 7 course.

July 15, 2011 - Beta test with ASU students. ASU to provide a minimum of 20 current

students, and up to 100, to test the MAT -117 course.

August 15,2011 - Delivery of Readiness for 117 and MAT-l 17 courses that are fully

operational by having completed Beta testing and being accessible to students via the

Pearson Learning Studio LMS.

Initial Hosting Facility:

[Amazon Web Services]

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Exhibit B

KNEWTON INSURANCE REQUIREMENTS:

Knewton shall procure and maintain until all of its obligations have been discharged,including any warranty periods under this Agreement, are satisfied, insurance against

claims for injury to persons or damage to property which may arise from or in connection

with the performance of the work and/or service hereunder by Knewton, its agents,

representatives, employees or subcontractors.

The insurance requirements herein are minimum requirements for this Agreement and in

no way limit the indemnity covenants contained in this Agreement. Arizona State

University in no way warrants that the minimum limits contained herein are sufficient to

protect Knewton from liabilities that might arise out of the performance of the

work/service under this Agreement by Knewton, its agents, representatives, employees or

subcontractors, and Knewton is free to purchase additional insurance.

A. MINIMUM SCOPE AND LIMITS OF INSURANCE: Knewton shall provide

coverage with limits of liability not less than those stated below.

1. Commercial General Liability - Occurrence FormPolicy shall include bodily injury, property damage, personal injury

and broad form contractual liability coverage.

• General Aggregate

$2,000,000

• Products - Completed Operations Aggregate

$1,000,000

• Personal and Advertising Injury

$1,000,000

• Blanket Contractual Liability - Written and Oral

$1,000,000

• Fire Legal Liability$50,000

• Each Occurrence$1,000,000

a. The policy shall be endorsed to include the following

additional insured language: "The State of Arizona, ArizonaBoard of Regents, Arizona State University and their regents,

officers, officials, agents, and employees shall be named as

additional insureds with respect to liability arising out of the

activities performed by or on behalf of Knewton".

a. Policy shall contain a waiver of subrogation against the State

of Arizona, Arizona Board of Regents, Arizona State

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University and their regents, officers, officials, agents, and

employees for losses arising from work performed by or on

behalf of Knewton.

2. Worker's Compensation and Employers' Liability

Workers' CompensationStatutory

Employers' Liability

Each Accident

$500,000

Disease - EachEmployee

$500,000

Disease - Policy Limit

$1,000,000

Policy shall contain a waiver of subrogation against the State

of Arizona, Arizona Board of Regents, Arizona State

University and their regents, officers, officials, agents, andemployees for losses arising from work performed by or on

behalf of Knewton.

3. Technology/Network Errors and Omissions Insurance

Each Claim

$1,000,000

Annual Aggregate

$1,000,000

Coverage to include:

• Hostile action or a threat of hostile action with the intent to affect, alter,

copy, corrupt, destroy, disrupt, damage, or provide unauthorized

access/unauthorized us of a computer system including exposing or

publicizing confidential electronic data or causing electronic data to be

inaccessible;

• Computer viruses, Trojan horses, worms and an other type of malicious or

damaging code;

• Dishonest, fraudulent, malicious, or criminal use of a computer system by .

a person, whether identified or not, and whether acting alone or in

collusion with other persons, to affect, alter, copy corrupt, delete, disrupt,

or destroy a computer system or obtain financial benefit for any party or to

steal or take electronic data;

• Denial of service for which the insured is responsible that results in the

degradation of or loss of access to internet or network activities or normal

us of a computer system;

• Loss of service for which the insured is responsible that results in the

inability of a third party, who is authorized to do so, to gain access to a

computer system and conduct normal internet or network activities;

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• Access to a computer system or computer system resources by anunauthorized person or an authorized person in an unauthorized manner;

• Loss or disclosure of confidential information no matter how it occurs;

• Systems analysis;

• Software Design;

• Systems programming;• Data processing;

• Systems integration;

• Outsourcing including outsourcing development and design;

• Systems design, consulting) development and modification;

• Training services relating to computer software or hardware;

• Management, repair and maintenance of computer products, networks andsystems;

• Marketing, selling, servicing, distributing, installing and maintainingcomputer hardware or software; and

• Data entry, modification, verification, maintenance) storage, retrieval or

preparation of data output.

a. In the event that the professional liability insurance requiredby this Agreement is written on a claims-made basis,Knewton warrants that any retroactive date under the policyshall precede the effective date of this Agreement; and that

either continuous coverage will be maintained or an extendeddiscovery period will be exercised for a period of two (2)

years beginning at the time work under this Agreement is

completed.

b. The policy shall cover professional misconduct or lack ofordinary skill for those positions defined in the Scope ofWork of this Agreement.

B. ADDITIONAL INSURANCE REQUIREMENTS: The policies shall include, orbe endorsed to include) the following provisions:

1. The State of Arizona, Arizona Board of Regents, Arizona State University andtheir regents, officers, officials, agents, and employees wherever additionalinsured status is required such additional insured shall be covered to the full

limits of liability purchased by Knewton, even if those limits of liability are inexcess of those required by this Agreement.

2. Knewton's insurance coverage shall be primary insurance with respect to all

other available sources.

3. Coverage provided by Knewton shall not be limited to the liability assumedunder the indemnification provisions of this Agreement.

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C. NOTICE OF CANCELLATION: Should any of the above described policies be

cancelled before the expiration date thereof, notice will be delivered in accordancewith the policy provisions.

D. ACCEPTABILITY OF INSURERS: Insurance is to be placed with duly licensedor approved non-admitted insurers in the state of Arizona with an "A.M. Best"rating of not less than A- VII. The State of Arizona in no way warrants that theabove-required minimum insurer rating is sufficient to protect Knewton frompotential insurer insolvency.

E. VERIFICATION OF COVERAGE: Knewton shall furnish the Arizona StateUniversity with certificates of insurance (ACORD form or equivalent approved by

the State of Arizona) as required by this Agreement. The certificates for eachinsurance policy are to be signed by a person authorized by that insurer to bindcoverage on its behalf

All certificates and endorsements are to be received and approved by Arizona State

University before work commences. Each insurance policy required by thisAgreement must be in effect at or prior to commencement of work under thisAgreement and remain in effect for the duration of the project. Failure to maintainthe insurance policies as required by this Agreement, or to provide evidence ofrenewal, is a material breach of contract.

All certificates required by this Agreement shall be sent directly to Arizona StateUniversity as noted in Section 13.5of the Agreement.

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Curriculum Delivery Agreement 1 31 2011

Documents

Transcript of Curriculum Delivery Agreement 1 31 2011