GSD/PD (Rev. 01/11)

State of New Mexico
General Services Department
Contract Coversheet

Awarded Vend or
0000015221
ACT, Inc.
500 ACT Drive
P0Box4072
Iowa City, lA 52243-4072
Telephone No. (319) 337-1000

Ship To:
New Mexico Department ofWorl<force Solutions
401 Broadway NE
Albuquerque, NM 87102

Contract Number: 50-631-14-15184
Payment Terms: Net 30
F.O.B.: Destination
Deliveoy: As requested

Ia.,_,

Procurement Specialist: Teri Arevalo..)
Telephone No.: (505) 827- 0266

Invoice:
Same as "Ship To"

Foo· questions regarding this contract please contact:
Marcos Martinez (505) 841-9464

Title: ACT Worl,Keys System License

Term: March 6, 2015- January 19, 2018
This Contract is made subject to the "terms and conditions" shown on the reverse side of this page, and as
indicated in this Contract.
Accepted for the State of New Mexico

Date: 3/6/15

Purchasing Division, II 00 St. Francis Drive, PO Box 6850, Santa Fe, NM 87502-6850 (505) 827-0472
TA

 STATE OF NEW MEXICO
CONTRACT NUMBER 50-631-14-15184
DEPARTMENT OF WORKFORCE SOLUTIONS
SERVICES CONTRACT NUMBER 15-631-1001-00048
THIS AGREEMENT is made and entered into by and between the State of New Mexico,
Department of Workforce Solutions, hereinafter referred to as the "Agency," and ACT, Inc.,
hereinafter referred to as the "Contractor," and is effective as of the date set fmih below upon
which it is executed by the General Services Department, State Purchasing Division ("SPD").
WHEREAS, all terms and conditions of the SOLE SOURCE and the Contractor's response to
such document( s) are incorporated herein by reference; and

IT IS AGREED BETWEEN THE PARTIES:
1.

Reserved

2.

Scope of Work.

Contractor shall provide the products as set forth in the Attachments 1and Exhibits to this
Agreement.

3.

Compensation.

A.

The Agency shall pay to the Contractor in full payment for services satisfactorily
performed pursuant to the Scope of Work at the rate of Eighty Six Thousand
Eight Hundred and Ninety One Dollars and 67 cents ($86,891.67) in FY15. The
total amount payable to the Contl'actor under this Agreement, including
gross receipts tax and expenses, shall be $86,891.67 in FY15. FY15 is defined
as July 1, 2014 to June 30,2015.
The Agency shall pay to the Contractor in full payment for services satisfactorily
performed pursuant to the Scope of Work at the rate of One Hundred and Seventy
Three Thousand Seven Hundred and Eighty Three Dollars and 34 cents
($173,783.34) in FY16. The total amount payable to the Contractor under
this Agreement, including gross receipts tax and expenses, shall be
$173,783.34 in FY16. FY16 is defined as July 1, 2015 to June 30,2016.
The Agency shall pay to the Contractor in fi.Jll payment for services satisfactorily
performed pursuant to the Scope of Work at the rate of One Hundred and Seventy
Three Thousand Seven Hundred and Eighty Three Dollars and 33 cents
($173,783.33) in FY17. The total amount payable to the Contractor under
this Agreement, including gross receipts tax and expenses, shall be
$173,783.33 in FY17. FY17 is defined as July 1, 2016 to June 30,2017.
1

 The Agency shall pay to the Contractor in full payment for services satisfactorily
performed pursuant to the agreement at the rate of Eighty Six Thousand Eight
Hundred and Ninety One Dollars and 66 cents ($86,891.66) in FY18. The total
amount payable to the Contractor under this Agreement, including gross
receipts tax and expenses, shall be $86,891.66 in FY18. FY18 is defined as
July 1, 2017 to June 30, 2018.
The Parties agree that the above pricing is for an internet-based testing license.
The Agency may additionally seek to offer paper-based assessments at the individual prices set
forth in the attached Pricing Exhibit, attached hereto and incorporated herein by reference. The
total amount of the monies payable to the Contractor for the internet-based assessments under the
Attachments and Exhibits under this Agreement in FY15, FY16, FY17, FY18 including gross
receipts tax, shall be $521,350.00.
Payments under this Agreement shall be made in accordance with the schedule set
forth above.
B.
Payment in FY15, FY16, FY17 and FY18 are subject to availability of funds
pursuant to the Appropriations Paragraph set forth below and to any negotiations between the
parties from year to year pursuant to Paragraph 1, Scope of Work, and to approval by the SPD.
This Agreement constitutes the entire understanding of the Contractor and the Agency and
supersedes all prior discussions and agreements on this issue. Any negotiations on amendments
to the terms of this Agreement shall not bind the parties unless the amendments are adopted in a
written document signed by all parties. Notwithstanding any provision in this Agreement to the
contrary, Agency agrees to pay for services rendered pursuant to this Agreement.
C.
Contractor will submit a detailed invoice for the amounts specified in Section 3
above. Payment shall be tendered to the Contractor within thirty days after the date of invoice,
and the amounts more than 60 days past due shall draw interest at the rate set forth in 13-1-158
NMSA 1978. If payment is made by mail, the payment shall be deemed tendered on the date it is
postmarked.

4.

Term.
THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL APPROVED BY
SPD and Contractor. This Agreement shall terminate on January 19, 2018, unless terminated
pursuant to paragraph 5 (Termination), or paragraph 6 (Appropriations). In accordance with
Section 13-1-150 NMSA 1978, no contract term for a services contract, including extensions and
renewals, shall exceed four years, except as set forth in Section 13-1-150 NMSA 1978.
5.

Termination.
A.
Termination. Either party may terminate this Agreement with cause upon written
notice to the other party in the event that other party breaches its obligations under this
Agreement and fails to cure such breach within thirty (30) days after receiving written notice of
such breach. This Agreement may be terminated without cause by either of the parties hereto
upon written notice delivered to the other party at least thirty (30) days prior to the intended date
2

 of termination. Except as otherwise allowed or provided under this Agreement, upon
termination Agency shall receive a prorated refund of amounts paid by Agency during the fiscal
year of the termination. A notice of termination shall not nullify or otherwise affect either
The
party's liability for pre-termination defaults under or breaches of this Agreement.
Contractor shall submit an invoice for such work within forty-five (45) days of termination.
Notwithstanding the foregoing, this Agreement may be terminated immediately upon written
notice to the breaching party if:
(I) the breaching pmiy becomes unable to perform the services contracted for, as
reasonably determined by the non-breaching party; or
(2) if, during the term of this Agreement, the Contractor or any of its officers,
employees or agents is indicted for fraud, embezzlement or other crime due to misuse of
New Mexico state funds; or
(3) due to the lack of necessary Appropriations after compliance with the
provisions of paragraph 6 herein. THIS PROVISION IS NOT EXCLUSIVE AND DOES
NOT WAIVE THE OTHER LEGAL RIGHTS AND REMEDIES OF THE PARTIES AS
FURTHER SET FORTH IN THIS AGREEMENT THAT MAY BE IMPLICATED BY A
PARTY'S DEFAULT/BREACH OF THIS AGREEMENT."
B.
Termination Management. Immediately upon receipt by either the Agency or the
Contractor of notice of termination of this Agreement, the Contractor shall: 1) not incur any
further obligations for salaries, services or any other expenditure of funds under this Agreement
without written approval of the Agency; 2) comply with all reasonable directives issued by the
Agency in the notice of termination as to the performance of work under this Agreement; and 3)
take such action as the Agency shall reasonably direct for the protection, preservation, retention
or transfer of all property titled to the Agency and records generated under this Agreement.
C.
Provisions Surviving Termination.
All covenants and agreements to be
performed and/or observed by either party under this Agreement after the termination of the
Agreement or which by their nature survive such termination shall survive termination of this
Agreement.
6.

Appropriations.
The terms of this Agreement are contingent upon sufficient appropriations and
authorization being made by the Legislature of New Mexico for the performance of this
Agreement. If sufficient appropriations and authorization are not made by the Legislature, this
Agreement shall terminate at the end of the period for which funds are available upon written
notice being given by the Agency to the Contractor. The Agency's decision as to whether
sufficient appropriations are available shall be accepted by the Contractor and shall be final. The
Agency shall notify the Contractor at the earliest possible time of the services which will or may
be affected by a lack of appropriations or authority pursuant to this provision. If the Agency
proposes an amendment to the Agreement to unilaterally reduce funding in light of a failure by
the Legislature to allocate sufficient appropriations or authorization, the Contractor shall have
the option to terminate the Agreement or to agree to the reduced funding, within thirty (30) days
of receipt of the proposed amendment.
7.

Status of Contract01·.
3

 The Contractor and its agents and employees are independent Contractors performing
services for the Agency and are not employees of the State of New Mexico. The Contractor and
its agents and employees shall not accrue leave, retirement, insurance, bonding, use of state
vehicles, or any other benefits afforded to employees of the State of New Mexico as a result of
this Agreement. The Contractor acknowledges that all sums received hereunder are reportable
by the Contractor for tax purposes, including without limitation, self-employment and business
income tax. The Contractor agrees not to purport to bind the State of New Mexico unless the
Contractor has express written authority to do so, and then only within the strict limits of that
authority.
8.

Assignment.
The parties shall not assign or transfer any interest in this Agreement or assign any claims
for money due or to become due under this Agreement without the prior written approval of the
other party.
9.

Subcontracting.
The Contractor shall not subcontract any portion of the services to be performed under
this Agreement without the prior written approval of the Agency.
10.

Reserved.

11.

Confidentialitv.
During the tei'm of this Agreement, the Contractor may disclose certain Confidential
Information of a special and unique nature to the Agency. As used in this Agreement,
"Confidential Information" means any information (whether in written, verbal, or other format)
marked or identified as being confidential or which a reasonable person would understand to be
confidential from the nature of the information or the circumstances of the disclosure. Agency
agrees that neither it nor its employees shall at any time during or following the Term, without
the express written permission of the Contractor, either directly or indirectly, publish, display or
otherwise disclose to any person, organization, or entity in any manner whatsoever any
Confidential Information, or use the Confidential Information except as strictly necessary for its
intended and authorized purpose under this Agreement. The Agency shall protect the
Confidential Information using a standard of care it uses to protect its own confidential and
proprietary information, but in any event not less than a reasonable standard of care. All
Confidential Information shall be and remain the property of the Contractor notwithstanding the
subsequent termination of this Agreement. The Agency shall, within ten (1 0) days of the
. Contractor's written request, retum the Confidential Information to the Contractor (including any
copies thereof), or if the Contractor so permits, certify in writing that all Confidential
Information (including any copies thereof) has been destroyed using a method designed to ensure
confidentiality and permanently deleted from any computer hardware or other equipment. The
Agency shall immediately notify Contractor in writing in the event of any unauthorized use or
disclosure of the Confidential Information and assist in remedying such unauthorized use or
disclosure, as requested by Contractor (which shall not limit other remedies of Contractor as
provided herein or by applicable law). In the event of a breach or threatened breach of this
Section 11, Contractor, in addition to and not in limitation of any of the rights, remedies or
4

 damages available to it at law or in equity, shall be entitled to a temporary or permanent
injunction to prevent or restrain any such breach by the Agency.
12.

Reserved.

13.

Conflict oflnterest; Governmental Conduct Contractor.
The Contractor warrants that it presently has no interest and shall not acquire any interest,
direct or indirect, which would conflict in any manner or degree with the performance or services
required under the Agreement.
The Contractor certifies that the requirements of the
Governmental Conduct Act, Sections I 0-16-1 through I 0-16-18, NMSA 1978, regarding
contracting with a public officer or state employee or former state employee have been followed.
14.

Amendment.
A.
This Agreement shall not be altered, changed or amended except by instrument in
writing executed by the parties hereto and all other required signatories.
B.
If the Agency proposes an amendment to the Agreement to unilaterally reduce
funding in light of a failure by the Legislature to allocate sufficient appropriations or
authorization, the Contractor shall have the option to terminate the Agreement or to agree to the
reduced funding, within thirty (30) days of receipt of the proposed amendment.
15.

Merger.
The following Attachments are fully incorporated into this Agreement by reference:

Attachment 1 -Pricing Exhibit
Attachment 2 - Trademark Guidelines
Attachment 3 --Authorized Agency Locations
Attachment 4 - Supplemental Terms and Conditions for ACT WorkKeys Internet Based
Assessment System
Attachment 5- Supplemental Terms and Conditions for Spanish ACT WorkKeys Internet Based
Assessment System
Attachment 6 - Supplemental Terms and Conditions for ACT WorkKeys Paper Based
Assessment System
Attachment 7 - Supplemental Terms and Conditions for RegiSTAR Related Products and
Services
Attachment 8 - Supplemental Terms and Conditions for ACT Career Curriculum Related
Products and Services

5

 This Agreement, including all Attachments and Exhibits, incorporates all the
Agreements, covenants and understandings between the pmiies hereto concerning the subject
matter hereof, and all such covenants, Agreements and understandings have been merged into
this written Agreement. No prior Agreement or understanding, oral or otherwise, of the patiies
or their agents shall be valid or enforceable unless embodied in this Agreement.
Penalties for violation of law.
The Procurement Code, Sections 13-1-28 through 13-1-199, NMSA 1978, imposes civil
and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose
felony penalties for illegal bribes, gratuities and kickbacks.
16.

Equal Opportunity Compliance.
The Contractor agrees to abide by all applicable federal and state laws and rules and
regulations, and executive orders of the Governor of the State of New Mexico, pertaining to
equal employment opportunity. In accordance with all such applicable laws of the State of New
Mexico, the Contractor assures that no person in the United States shall, on the grounds of race,
religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious
medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from
employment with or participation in, be denied the benefits of, or be otherwise subjected to
discrimination under any program or activity performed under this Agreement. If Contractor is
found not to be in compliance with these requirements during the life of this Agreement,
Contractor agrees to take appropriate steps to correct these deficiencies.
17.

18.

Applicable Law.
The laws of the State of New Mexico shall govern this Agreement, without giving effect
to its choice of law provisions. Venue shall be proper only in a New Mexico comi of competent
jurisdiction in accordance with Section 38-3-1 (G) NMSA 1978. By execution of this
Agreement, Contractor acknowledges and agrees to the jurisdiction of the courts of the State of
New Mexico over any and all lawsuits arising under or out of any term of this Agreement.
Worl,ers Compensation.
The Contractor agrees to comply with all applicable state laws and rules applicable to
workers compensation benefits and unemployment insurance benefits for its employees. If the
Contractor fails to comply with the applicable state laws and rules when required to do so, this
Agreement may be terminated by the Agency.
19.

20.

Records and Financial Audit.
The Contractor shall maintain records supporting the invoices submitted by Contractor
during the Agreement's term and effect and retain them for a period of three (3) years from the
date of final payment under this Agreement. Upon reasonable notice to the Contractor, the
records shall be provided to the Agency, and thereafter subject to inspection by the Agency, the
Department of Finance and Administration and the State Auditor upon reasonable notice to the
Contractor. Any such audit shall be conducted at Agency's expense. The Agency shall have the
right to audit billings both before and after payment. Payment under this Agreement shall not
foreclose the right of the Agency to recover excessive or illegal payments, pursuant to the
provisions of this Agreement.
6

 21.

Indemnification.
The Contractor shall defend, indemnify and hold harmless the Agency and the State of
New Mexico from all third patty actions, proceeding, claims, demands, costs, damages,
attorneys' fees and all other liabilities and expenses of any kind from any source to the extent
they arise out of the negligent performance of this Agreement by the Contractor, its officers,
employees, servants, subcontractors or agents, resulting in bodily injury to persons or damage to
real property during the time when the Contractor or any officer, agent, employee, servant or
subcontractor thereof has or is performing services pursuant to this Agreement, provided that the
Agency (a) notifies the Contractor as soon as practicable but no later than two (2) business days
after it receives notice of any such claim or proceeding, and (b) permits Contractor to settle any
such claim subject to the consent of the New Mexico Attorney General's Office. In the event
that any action, suit or proceeding related to the services performed by the Contractor or any
officer, agent, employee, servant or -subcontractor under this Agreement is brought against the
Contractor, the Contractor shall, as soon as practicable but no later than two (2) days after it
receives notice thereof, notify the legal counsel of the Agency and the Risk Management
Division of the New Mexico General Services Department by certified mail.
22.

Limitation of Liability.

Contractor's liability for damages ansmg out of or in connection with this
Agreement shall not exceed the amount Agency has agt·eed to pay during the term of this
Agreement. Except for damages related to the breach of confidentiality, in no event shall
either party be liable to the other party for special, indirect, incidental, punitive,
exemplary, or consequential damages. This provision shall not be construed to limit
contractor's indemnification obligation in Section 21.

23.

Warranty and Limitations.

Except for warranties expressly set forth in this Agreement or any Exhibit to this
Agreement attached hereto, Contractor expressly disclaims any and all representations and
warranties of any kind or nature, express or implied, including without limitation those
arising by statute or otherwise in law or from a course of dealing or use of trade, and
warranties of merchantability or fitness for purpose. Agency shall have the sole
t·esponsibility for assuring that its use of the products or services complies with federal,
state and local laws and regulations and all labor, employee, or other contracts or practices
to which it is a party.
24.

Force Majeut·e.

Contractor shall not be liable to Agency for any delay or failure to perform, which delay
or failure is due to causes or circumstances beyond its control, including, without limitation,
national emergencies, fire, flood, epidemics, or catastrophe, acts of God, governmental
authorities, or patties not under the control of contractor, insurrection, war, riots, or failure of
transportation, communication, or power supply. Contractor shall exercise commercially
7

 reasonable efforts to mitigate the extent of the excusable delay or failure and its adverse
consequences; provided, however, that should any such delay or failure continue for more than
sixty (60) days, the Agreement may be terminated by either party immediately upon notice to the
other.
25.

New Mexico Employees Health Coverage.
A. If Contractor has, or grows to, six (6) or more employees that are New Mexico
residents who work, or who are expected to work, an average of at least 20 hours per week over
a six (6) month period during the term of the contract ("qualifying employees"), Contractor
certifies, by signing this agreement, to have in place, and agree to maintain for the term of the
contract, health insurance for those employees and offer that health insurance to those qualifying
employees no later than July 1, 2010 if the expected annual value in the aggregate of any and all
contracts between Contractor and the State exceed $250,000 dollars.
B. Contractor agrees to maintain a record of the number of qualifying employees who
have (a) accepted health insurance; (b) declined health insurance due to other health insurance
coverage already in place; or (c) declined health insurance for other reasons. These records are
subject to review and audit by a representative of the state pursuant to the provisions of this
Agreement.
C. Contractor agrees to advise all qualifying employees of the availability of State
publicly financed health care coverage programs by providing each employee with, as a
mm1mum,
the
following
web
site
link
to
additional
information:
http://insurenewmexico.state.nm.us/.
Employee Pay Equity Reporting
Contractor agrees if it has ten (10) or more New Mexico employees OR eight (8) or more
New Mexico employees in the same job classification, at any time during the term of this
contract Contractor, to complete and submit the PEl0-249 form on the mmual anniversary of the
initial report submittal for contracts up to one (1) year in duration. If Contractor has (250) or
more New Mexico employees Contractor must complete and submit the PE250 form on the
annual anniversary of the initial report submittal for contracts up to one (1) year in duration. For
contracts that extend beyond one (1) calendar year, or are extended beyond one (1) calendar
year, Contractor also agrees to complete and submit the PE!0-249 or PE250 form, whichever is
applicable, within thirty (30) days of the annual contract anniversary date of the initial submittal
date or, if more than 180 days has elapsed since submittal of the last report, at the completion of
the contract, whichever comes first. Should Contractor not meet the size requirement for
reporting at contract award but subsequently grows such that they meet or exceed the size
requirement for reporting, Contractor agrees to provide the required report within ninety (90
days) of meeting or exceeding the size requirement. That submittal date shall serve as the basis
for submittals required thereafter. Contractor also agrees to levy this requirement on any
subcontractor(s) performing more than 10% of the dollar value of this contractor if said
subcontractor(s) meets, or grows to meet, the stated New Mexico employee size thresholds
during the term of the contract. Contractor further agrees that, should one or more subcontractor
not meet the size requirement for reporting at contract award but subsequently grows such that
they meet or exceed the size requirement for rep011ing, Contractor will submit the required
26.

8

 rep01i, for each such subcontractor, within ninety (90 days) of that subcontractor meeting or
exceeding the size requirement. Subsequent report submittals, on behalf of each such
subcontractor, shall be due on the annual anniversary of the initial report submittal. Contractor
shall submit the required form( s) to the State Purchasing Division of the General Services
Department, and other departments as may be determined, on behalf of the applicable
subcontractor(s) in accordance with the schedule contained in this paragraph. Contractor
acknowledges that this subcontractor requirement applies even though Contractor itself may not
meet the size requirement for reporting and be required to repoti itself.
Notwithstanding the foregoing, if this Agreement was procured pursuant to a solicitation,
and if Contractor has already submitted the required report accompanying their response to such
solicitation, the rep01i does not need to be re-submitted with this Agreement.

Invalid Term or Condition.
If any term or condition of this Agreement shall be held invalid or unenforceable, the
remainder of this Agreement shall not be affected and shall be valid and enforceable.

27.

28.

Enforcement of Agreement.
A party's failure to require strict performance of any provision of this Agreement shall not
waive or diminish that party's right thereafter to demand strict compliance with that or any other
provision. No waiver by a party of any of its rights under this Agreement shall be effective
unless express and in writing, and no effective waiver by a party of any of its rights shall be
effective to waive any other rights.
29.

Notices.
Any notice required to be given to either party by this Agreement shall be in writing and
shall be delivered in person, by courier service or by U.S. mail, either first class or certified,
return receipt requested, postage prepaid, as follows:

30.

To the Agency:

Department of Workforce Solutions
Business Development & Outreach Division
401 Broadway Blvd. NE
P.O. Box 1928
Albuquerque, NM 87102
Attention: Division Director

To the Contractor:

ACT, Inc.
500 ACT Drive
P.O. Box 168
Iowa City, IA 52243-0168
Attention: CFO
FAX: 319-341-2760

Use of ACT's Trademarks.
a.
Subject to the restrictions set forth in this Agreement, and only during the term of
this Agreement, ACT grants to Customer a non-exclusive, non-transferable, non9

 sublicensable and non-assignable right to use the ACT trademarks as indicated, and
subject to the limitations set fotih in the Trademark Guidelines.
b.

Restrictions.

(i)
All of Customer's uses of ACT's trademarks must be preapproved by
ACT. Customer must contact ACT by email at workkeys@act.org to initiate the review
process for any proposed trademark uses and shall not begin use of the trademarks until
Customer has received affirmative written approval from ACT to do so.
(ii)
Customer shall not use, any of ACT's trademarks in such a way so as to
give the impression that they are the property of anyone other than ACT.
(iii)
Customer shall comply with the Trademark Guidelines, and any other
reasonable requirements established by ACT concerning the style, design, display, and
use of its trademarks. ACT may revise such guidelines and requirements in its sole
discretion at any time and from time to time. Customer agrees that it will not change the
names of the ACT Products and Services in its administration, offering, marketing or
other use of the Products and Services, and that the individual components shall always
be known and referred to by their ACT dictated names unless renamed by ACT.

c.
Trademark Ownership. Except to the extent expressly granted in this Agreement,
no rights to ACT's trademarks are granted by ACT under this Agreement. Customer
agrees that ownership of the Marks, as defined in the Trademark Guidelines, licensed to
the Customer and the goodwill relating thereto shall remain vested in ACT both during
the period of this Agreement and thereafter, and Customer further agrees never to
challenge, contest or question the validity of ACT's ownership of the Marks or any
registrations thereof by ACT. Customer shall not file or prosecute a trademark or service
mark application or applications to register the Marks (or any mark containing or similar
to the Marks) in connection with any goods or services in any jurisdiction. This section
6(c) shall survive the termination of this Agreement, whether by expiration, termination
or for any other reason.
·
d.
Term. The trademark license herein shall terminate immediately upon
termination of this Agreement, and Customer shall immediately delete or destroy all
materials containing the Marks upon termination of this Agreement. ACT also reserves
the right to immediately terminate the licenses set fmih in this Agreement at will if
Customer's use of ACT's trademarks does not, in the judgment and sole discretion of
ACT, comply with the requirements set forth in this Agreement.

10

 31.

Authority.

If Contractor is other than a natural person, the individual(s) signing this Agreement on
behalf of Contractor represents and warrants that he or she has the power and authority to bind
Contractor, and that no further action, resolution, or approval from Contractor is necessary to
enter into a binding contract.

arties have executed this Agreement as of the date of

By:

Date:
ecretary
New Mexico Department of Workforce Solutions

Approved for legal sufficiency:
By:

fkul~ ~--<-~

Date:

Rudolph Arnold
Attorney
Office of the General Counsel
New Mexico Department of Workforce Solutions

J-

/zt- 1/s

~

Date:

By:

7

z/u/;s-

David Robbins,
Chief Financial Officer
Department of Workforce Solutions

By:

JL~

2 -z:s-~~

Date: _ _ _ _ __

Thomas J. Goedken
Chief Financial Officer
ACT, Inc.

11

 The records of the Taxation and Revenue Department reflect that the Contractor is registered
with the Taxation and Revenue Department of the State of New Mexico to pay gross receipts and
compensating taxes.

Date:02-.

By:

2.-5: / G

This Agreement has been approved by General Services Department, State Purchasing Division:
Date:_3_·_-_(,_·-_!_5'_

By:
General ServJCes Department
State Purchasing Division

12

 Attachment 1

ACTO
PRICING EXHIBIT
The parties agree as follows:
WORKKEYS
SYSTEMS

INTERNET-BASED

AND

PAPER-BASED

ASSESSMENT

•

Unlimited internet-based assessments* for Workforce Investment
Act/ Department of Labor clients delivered through New Mexico
Department of Workforce Solutions WorkKeys Internet-based
Assessment Authorized Agency Locations listed in Attachment 2.
• Paper-based assessments for Workforce Investment Act/Department
of Labor clients delivered through New Mexico Department of
Workforce Solutions Authorized Agency Locations listed in
Attachment 2, shall be invoiced pmsuant to the prices sets forth in
Exhibit A to the Payment Agreement.
• Internet-based assessments must be administered prior to the
expiration date of the Agreement.
Paper-based assessments must be administered and scmed prior to the
expiration date of the Agreement.

*************************************
REGISTAR PRODUCTS AND SERVICES
•
•
•
•

Three (3) year license for New Mexico Department of Workforce
Solutions.*
NCRC Certificate Registration and Printing for those who are eligible.
Weekly shipping of NCRC Ce1tificates to all New Mexico Department
of Workforce Solutions testing sites.
One final sweep for NCRC Certificates will take place after the
expiration date of the Agreement and Ce1tificates will be shipped.

***************************************
CAREER READY 101
•

Three (3) year license for New Mexico Department of Workforce
Solutions.**

•

Includes Career Ready 101 at the 18 Authorized Agency Locations listed in
the Attachment 2

***************************************
13

 Subscription fee of $470,000* for the above described products and
services for a term of three years to January 19,2018. Subscription fee
will be invoiced in three (3) equal installments on an annual basis,
commencing on the date of acceptance and approval of the Agreement
by ACT. Customer is not entitled to a refund or credit at the end of the
Agreement.
Subscription fee of $8,000 for one three-year Career Ready I 0 I license
for the main site and $43,350 for 18 three-year Career Ready 101 licenses
for 18 Authorized Customer Locations, for a total of $51 ,350** for a term
to January 19, 2018. Subscription fee will be invoiced in three (3) equal
installments on an annual basis, commencing on the date of acceptance
and approval of the Agreement by ACT. Customer is not entitled to a
refund or credit at the end of the Agreement.
'NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TilE MAXIMUM
AMOUNT OF COMPENSATION PAYABLE BY THE CUSTOMER FOR INTERNET-BASED
ASSESSMENTS AND NCRC CERTIFICATES TO ACT IS $470,000.00,

'*NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM AMOUNT OF
COMPENSATION PAY ABLE BY THE CUSTOMER FOR CAilliER READY I 01 TO ACT IS $51,350.00,

2014lll3l659

14

 ATTACHMENT 2

TRADEMARK GUIDELINES
The following guidelines describe the proper use of ACT's trademarks. ACT, Inc. reserves the right to change these
guidelines at any time.
1.
Prior Written Consent Required. You are being provided these guidelines because you have agreed to
administer, participate, or use ACT's Products and Services, which involves the use of ACT's trademarks indicated
below (the "Marks"). Except as expressly set forth in the Agreement to which these Trademark Guidelines are
attached, these guidelines do not entitle you to use any other trademarks of ACT. You should not use any of ACT's
trademarks (including, without limitation, in any business name, company name, domain name, or in conjunction
with your products or services) in any way that would infringe on ACT's rights unless otherwise expressly agreed to
in advance in writing by ACT.
2.
Use of Trademark Symbols. For all of ACT's federally registered trademarks, you must place the ® symbol
immediately following the mark at least the first time you use it in a print or elech·onic document (e.g. on the cover,
in the first inside header). In addition, if the document is long or multipart, use the ® symbol with the trademark
each time it appears in a major section, part or element. The following marks and logos are federally registered:
ACT® (Note: the ACT mark may be used ONLY in combination with the other marks listed below. For
.
example," ACT KeyTrain" is acceptable.)
KeyTrain®
WorkKeys®

*

NATIONAL
CAREER H.EADINESS
CERTIFICATE'

NCRC®

3.
Trademarks Not Federally Registered. For all of ACT's trademarks that are not federally registered, you
must place the TM symbol immediately following the mark at least the first time you use it in a print or electronic
document (e.g. on the cover, in the first inside header). In addition, if the document is long or multipart, use the ™
symbol-with the tradem.ark each time it appears in a major section, part or element. The following marks and logos
are not federally registered:
ACT Career CurriculumTM
Career Ready lOFM

A~CT'Career

~

Currlculumr"

ACT' WorkKeys
4.

Marks Allowed for Permitted Use:

15

 (a)
Customer may only use the 1\1arks pertaining to the Products and Services purchased as and to the
extent permitted herein. The available Products and Setvices and applicable attendant Marks permitted for
use are as follows:
Product/Service
ACT® WorkKers® Inten1et-Based Assessment System
ACIWWorkKeys® Paper-Based Assessment System
ACT® RegiSTARTM related Products and Services

Mark
without ACT's prior written consent.
None, without ACT's prior written consent.
None~

*NATIONAL

\.\/orkKeys, NCRC,
ACT® Readiness Indicator
ACIW Career Curriculum Products and Services
License to Be an ACT Career Solutions Provider

8~:~~~~~c~~~::~~>INEss

None, without ACT's prior written consent.
without ACT's prior written consent.
\VorkKevs, KeyTrain, Career Ready 101

None~

Customer may not use any other ACT hademark, including the Express Score or RegiSTAR marks.

(b) Customer may only use the Marks cited above pertaining to the Products and Services purchased as
follows:
Product/Service
ACT®RegiSTARTM related Products and Services

License to Be an ACT Career Solutions Provider

5.

Use
Subject to the reshictions set forth in this
Agreement, and only during the term of this
Agreement, ACT grants to Customer a nonexclusive, non-transferable, non-sublicensable and
non-assignable right to use the cited 1\riarks on the
certificate and in Customer's marketing materials
related to the certificate program.
Subject to the restrictions set forth in this
Agreement, and only during the term of this
Agreement, ACT grants to Customer a nonexclusive, non-transferable, non-sublicensable and
non-assignable right to use the cited Marks for
purposes of administration and marketing of ACT
Products and Services.

Using the Trademarks in Text.
\Vhen using the text version of a trademark, set it apart from other nouns and words it modifies.
(a)
Capitalize the text and use the appropriate h·ademark symbol. You may also underline, italicize, or bold the
text.
(b)
Use ACT's trademarks as proper adjectives only. A hademark is an adjective and should not be
used as a verb or as a noun. The use of nouns or other descriptive words in close proximity to a mark
distinguishes the mark as a trademark, and should always be used in conjunction with the trademark
whenever possible, and, at a minimum, the first time you use it in a document. Huwever, it is not necessary
to use nouns or other descriptive ·words in conjunction with a logo standing alone, for example, on
marketing materials or on a web site.
Correct: The WorkKeys® assessment system permits a direct comparison of the skills and levels of
skills needed to perform a job ·with the skills and levels of skills an individual currently possesses.
Incorrect: WorkKeys® permits a direct comparison of the skills and levels of skills needed to
perform a job with the skills and levels of skills an individual currently possesses.
(c)

Do not use ACT's trademarks in the possessive or plural form.

16

 Correct: The VVorkKeys assessment system has many advantages.
Incorrect: \.YorkKeys' advantages are numerous.

(d)

Do not shorten, abbreviate or create acronyms from ACT's trademarks.
Incorrect: The VVK pTogram has numerous advantages.

(e)

Do not hyphenate ACT's hademarks, even at the end of a line.

(f)

\Vhen using the ·words "National Career Readiness Certificate" in text, and not as part of the logo,
do not use the TM symbol or the® symbol.
Correct: The National Career Readiness Certificate issued by ACT serves as a proven economic
development tool.
Incorrect: ACT's National Career Readiness CertificateTM serves as a proven economic development
tool.

6.
Do Not Combine ACf's Trademarks. Do not combine ACT's trademarks with your h·ademarks or the
trademarks of any third party.
7.
Disolav of ACT's Trademarks. Do not display any of ACT's trademarks in larger format or more
prominently than your own trademarks, ·wherever displayed, without the prior written consent of ACT. Do not
display any of ACT's trademarks in any way that would dilute, diminish, cause harm to, or misrepresent such
h·ademarks, the product or service itself, or ACT, Inc. Use ACT's trademarks only to identify ACT, Inc.'s products
and services.
8.
Attribution. Do not use any of ACT's h·ademarks in a manner that would create confusion regarding the
ownership of ACT's products or services. You must state, either in a footnote or in a parenthetical, that the
trademark you are using is a h·ademark of ACT, Inc., and indicate whether or not the trademark is federally
registered. All attribution statements must be placed on a separate line from other statements. If you use ACT's
h·ademark on a web site designed and/ or maintained by you, you must include an attribution on the first page of the
web site. For all other materials, include an attribution the first time you use the h·ademark in your materials.
Correct attribution for tradem.arks that are not federally 1·egistered:
[identify the trademark] is the trademark of ACT, Inc.

Correct attribution for trademarks that are federally registered:
[identify the trademark] is the registered trademark of ACT, h1c.

9.
Logo. ACT's logos may not be altered in any way, except for minor enlargement or reduction. Use the
correct Pl\115 colors and color separations ·when reproducing the logo in color.
10.
Descriptions of ACT's Products and Services. Any statements describing any of ACT's Products and
Services that you include on any 'Neb site or marketing materials but that did not originate from ACT must be
submitted for review and approval to ACT's legal department at the address in paragraph 11 below. Do not make
any c1aims1 representations, warranties, guarantees, or similar statements in any of your materials regarding ACT's
Products and Services unless expressly authori7.ed in writing by ACT.
11.
ACT's Right to Review. ACT reserves the right to request samples of your materials using ACT's
trademarks periodically to ensure compliance with this document, and such materials rnust be provided to ACT in a
timely mam1er.

17

 12.
Contacts. For questions regarding these guideJines, please contact ACT's Legal Deparhnent at the following
address:
ACT,Inc.
Law Deparhnent
500 ACT Drive
P.O. Box168
Iowa City, Iowa 52243-0168
(319) 337-1686

To obtain a sample of the approved logo, please contact ACT's Communications Deparhnent at the following
address:
ACT, Inc.

Conununications Department
500 ACT Drive
P.O. Box168
Iowa City, Iowa 55243-0168
(319) 337-1409

Notification of ACT decisions ·will be made in accordance with the Notices section of the Standard Agreement
Form.

18

 Attachment 3
Authorized Agency Locations
\VorkKeys Internet-base d Assessment Authorized Agency Locations
Alamogordo Workforce
901 Alaska Avenue
Connection Center
Albuquerque Business and Career
501 Mountain Road
Center
NE
Carlsbad VVorkforce Connection
323 S Halagueno
Center
Curry County Wm·kforce
111 North Main
Connection Center
Deming \.Y orkforce Com1ection
322 E Oak Str·eet
Center
Espanola One Stop Career Center
319 Onate Street
Farmington \Vorkforce Cmmection
600 W Arrington
Center
Gallup V\'orkforce ~onnection
503 W Highway 66
Center
Grants \.Yorkforce Connection
310 West High Street
Center
Las Cruces VVorkforce Connection
226 Alameda Street
Center
Las Vegas V\'orkforce Connection
833 Grand Avenue
Center
Lea County \.Yorkforce Connection
204 West Park Str·eet
Center
Raton \.Yorkforce Connection
1144 South Second
Sh·eet, Ste.A
Center
Rio Rancho Workforce Com1ection
1201 Rio Rancho
Center
Blvd, Ste.C
Roswell l'Vorkforce Connection
2110 South Main
Center
Str·eet
707 :rvrechem Drive
Ruidoso \.Yorkforce Connection
Center
Sandoval County Workforce
301 Rail Runner
Connection Center
Avenue
Santa Fe \Afo.t:kforce Connection
301 W DeVargas
Center
Silver City Workforce Cmmection
410 W Broadway
Center
Socorro V\'orkforce Cmmection
109 Faulkner
Center
Truth or Consequences \.Yorkforce
1301 North Pershing
Cmmection Center
1036 Salazar Road
Taos Workforce Connection Center

Alamogordo

NM

88310

Albuquerque

NM

87103

Carlsbad

NM

88220

Clovis

NM

88101

Deming

NM

88030

Espanola
Farmington

NM
NM

87532
87401

Gallup

NM

87301

Grants

NM

87020

Las Cruces

NM

88005

Las Vegas

NM

87701

Hobbs

NM

88240

Raton

NM

87740

Rio Rancho

NM

87124

Roswell

NM

88203

Ruidoso

NM

88345

Bernalilo

NM

87004

Santa Fe

NM

87501

Silver City

NM

88061

Socorro

NM

87801

Truth or
Consequences
Taos

NM

87901

NM

87571

901 Alaska Avenue

Alamogordo

NM

88310

501 Mountain Road
NE

Albuquerque

NM

87103

d 101 AU tllOriZe
. d A-\gency L ocati ons
career Rea:ty
Alamogordo Workforce
Connection Center
Albuquerque Business and Career
Center

19

 Artesia Workforce Connection
Center

704WMain

Artesia

NM

88210

Carlsbad \.Yorkforce Connection

323 S Halagueno

Carlsbad

NM

88220

111 NMain

Clovis

NM

88101

322 E Oak Street

Deming

NM

88030

319 Onate Str·eet
600 W Arrington

Espanola
Farmington

NM
NM

87532
87401

503 W Highway 66

Gallup

NM

87301

204 W Park Street

Hobbs

NM

88240

226 Alameda Street

Las Cruces

NM

88005

833 Grand A venue

las Vegas

NM

87701

Center
Clovis \·Vorkforce Connection
Center
Deming \Vorkforce Comtection
Center

Espanola One Stop Career Center
Farmington \Vorkforce
Connection Center

Gallup Workforce Cmmection
Center
Hobbs V\7orkforce Comtection
Center
Las Cruces V\1orkforce Connection
Center
Las Vegas \'\7orkforce Connection
Center
Roswell \Vorkforce Connection
Center

Ruidoso VVorkforce Cmmection

2110 South Main

Roswell

NM

88203

Street
707 Mechem Drive

Ruidoso

NM

88345

301 W DeVargas

Santa Fe

NM

87501

410 W Broadway

Silver City

NM

88061

109 Faulkner

Socorro

NM

87801

1036 Salazar Road

Taos

NM

87571

Center

Santa Fe Workforce Comtection
Center
Silver City \Vorkforce Comtection
Center
Socorro \.Yorkforce Connection
Center
Taos Workforce Connection
Center

20

 Attachment 4

.ACT" WorkKeys·
Supplemental Terms and Conditimis for ACJW Worki<eys® Internet Based Assessment System
The \VorkKeys system includes a suite of assessments that link to workplace skiHs and certain scoring and reporting
services that are associated with such assessments. Through this purchase the Authorized Agency Locations will have
access to the \VorkKeys Internet based assessment system receive the following (collectively the "Internet Based
Assessment System"):
•

Access to the following Internet-delivered WorkKeys assessments (only those checked will be available
to the Agency):

[ZJ All Available

If only specific tests are included, indicate the authorized tests below:
Foundational Skills Assessments:

0
0
0
0
0

Reading for Information
Reading for Information- Extended
Locating Information
Applied Mathematics
Applied Mathematics- Extended

0
0
0
0
0
0
0

Business Writing
Applied Technology
WorkPlace Observation
Listening for Understanding
Reading for Information - Healthcare
Locating Information- Healthcare
Applied Mathematics - I-Iealthcare

Personal Skills Assessments:

0
0

Performance
Talent
0Fit
\VorkKeys Online Practice Tests list as Preparation packages as available assessment in your Realm

0
0
0
0
•
•

Reading for Information- Preparation Package
Locating Information- Preparation Package
Applied Mathematics- Preparation Package
Applied Technology- Preparation Package

access (via the Internet) to the scoring data for each Authorized Examinee tested by Agency, and
access (via the Internet) to the following reports (each on a per realm basis):
o
Individuals Registered to Test Report- A report that shows the names of the examinees that have
been registered in advance to take the \VorkKeys assessments.
o
Usage Report - A report on the number of assessments launched by the Agency over a specified
time period.
o
Individual Score Report- An individual score report for each examinee tested by the Agency.
o
Data Export Report - A report that includes the name, demographics, and scores for all examinees
tested by the Agency.
o
Roster Report- A report that shows examinees' \VorkKeys scores over a time period (similar to the
Data Export Report but does not contain the demographic data).
o
Individual vs. Profile Report - A report showing examinee scores compared to profile scores set by
Agency.
o
Group vs. Profile Report- A report showing the examinees' \VorkKeys scores in a designated group
of examinees versus desired identified \VorkKeys profile scores.

201405191119
Customized for New Me.'<ico Department of Workforce Solutions 201501090959

 Note: Contractor reserves the right to add, delete, and modify reports from time to time in its sole and
absolute discretion.
Agency desires to purchase access to the Internet Based Assessment System. Therefore, the parties agree as follows:
I.

Definitions. As used in this Supplement, (a) the term "Assessments" shall refer to Contractor's Work Keys internet
based assessments indicated above, and (b) the term "Materials" shall mean the Assessments and the
accompanying materials, written or electronic, including without limitation the Supervisor's Manual or other
similar manuals published from time to time by Contractor. The term "Authorized Examinees" means
constituents/clients of the Agency located in New Mexico. The term "individual" means a human being and does
not include a partnership, corporation, association, cooperative, or other legal entity. The term "Authorized
Agency Location" means the locations identified in Attachment 3.

2.

Grant and Scope of License. Subject to the terms and conditions of this Agreement, Contractor hereby grants to
the Agency a non-exclusive and non-transferable right during the Term of this Agreement to (a) access the
Internet Based Assessment System for the purpose of assessing the Authorized Examinees, (b) administer the
Assessments to the Authorized Examinees, and (c) use the Materials in connection with the authorized
administration of the Assessments.

3.

Restrictions. Except as expressly permitted in this Supplement or otherwise permitted in the Agreement, , Agency
may not (a) use the Materials for any other purpose, (b) assign, license, sell, loan, lease, or otherwise transfer the
Internet Based Assessment System or the Materials in whole or in part, (c) authorize or allow a third party to use
the Internet Based Assessment System or lvlaterials, (d) copy, or allow anyone else to copy, in whole or in part,
the Materials, (e) modifY, reverse engineer, decompile, or disassemble the Internet Based Assessment System or
Materials, or (f) store the Materials at any location other than the Authorized Agency Location(s).

4.

Contractor's Responsibilities. Subject to any contrary terms in any other Supplement, Contractor will (a) permit
the Agency access to the Internet Based Assessment System during the Term of this Agreement, (b) set up the
primary administrator upon receipt of the signed Agreement, (c) provide reasonable training if requested upon
commencement of this Agreement in the form of a self-paced online training session, (d) provide the Agency
reasonable technical support for the Internet Based Assessment System via telephone and electronic mail, (e)
score the Assessments and provide score reports through the Internet Based Assessment System, and (f) make
available the results data associated with the Agency's account during the terms of the Agreement for access by
Agency, subject to Contractor's archival schedule as published from time to time.

5.

Agency's Responsibilities. Agency shall (a) appoint an administrator who shall have the sole authority to
distribute passwords, and to set up additional administrators, proctors and Agency accounts, (b) assure proper
machine configuration, a compatible Internet browser, and Internet access, (c) administer the Assessments in
conformance with the Supervisor's Manual and other similar manuals as published and updated from time to time,
including administering the Assessments in a proctored environment, (d) restrict access to the Materials to those
employees or individuals who have a nneed to know", (e) control the use of the Internet Based Assessment System,
and assure that only Authorized Examinees are provided passwords and are tested, (f) comply with all other terms
and conditions of this Agreement, including, but not limited to, paying, when due, all fees mved Contractor, and (g)
assume full responsibility for the selection of the Internet Based Assessment System and Assessments to achieve its
intended purpose.

6.

Test Security. Agency shall fully cooperate, and shall cause those individuals involved in the administration of or
preparation for the Assessments ("Administration Staff'), to fully cooperate with Contractor in the event of a test
security incident. The Materials (including without limitation the Assessments) are Contractor's Confidential
Information. Agency acknowledges that its failure to maintain the confidentiality of the Assessments will result in
damages to Contractor and may require Contractor to develop a replacement form. Accordingly ifthrough the fault
of Agency or the Administration Staff, the security of an Assessment is compromised, Agency agrees to pay
Contractor the costs of developing a new form in addition to any other remedies under the law. Contractor may, in
its sole and absolute discretion, cancel scores in cases of testing irregularities, which may include without limitation,
use of a compromised test form, falsification by an examinee of his/her identity, impersonation of another examinee
(surrogate testing), unusual similarities in the answers of examinees at the same test center, or other indicators that
the test scores may not accurately reflect the examinee's level of educational development.

20140519lll9
Customized for New Mexico Ikpartmenl ofWorkforc<l SolutioflS 201501090959

 7.

Data. The parties acknowledge and agree that Contractor may use and disclose the data collected from the
administration of the Assessments, as set forth in Contractor's data usage policies, as amended from time to time.

8.

Use After Termination. Upon termination of this Agreement for any reason, Agency shall immediately
discontinue use of the Internet Based Assessment System and shall immediately destroy, or if requested by
Contractor, return, all copies of the Materials in its possession. Agency shall certifY in writing its compliance
with these requirements.

9.

Maintenance. Contractor has established recurring maintenance windows during which Contractor may take down
servers and conduct routiQ.e maintenance checks. Contractor publishes the times of the maintenance windows
periodically. Contractor also reserves the right to provide unscheduled maintenance periodically. Contractor shall
not be responsible for any damages or costs incurred by Agency, if any, for such down time.

I 0.

Updates and Modifications. The Internet Based Assessment System may be modified or updated from time to time
at Contractor's sole discretion. Contractor shall make such modifications and updates available to Agency as they are
developed; provided however, that: (1) Contractor reserves the right to charge a fee for any new functionalities
available through the Internet Based Assessment System; and (2) to the extent that modifications or updates require
revised computer configuration, Agency shall provide such hardware or software that meets the revised computer
configuration requirements for the updated Internet Based Assessment System within the time frame set forth in a
written (including electronic) notice from Contractor detailing the timeframe of such modification or update and the
revised computer configuration requirements.

t 1.

Ownership. Contractor owns the WorkKeys system and all component parts, modifications, and updates thereto.
Contractor owns the copyrights on the Materials, and Contractor owns the trademark "WorkKeys." Except as
specifically granted in this Agreement, Agency does not acquire any right, title, or interest in or to the WorkKeys
system, including the Internet Based Assessment System and Materials, any rights in patents and copyrights
applicable thereto, or. any right, title or interest in or to the trademark "WorkKeys." Use of Contractor trademarks
is governed by Section 30 of the Services Contract, and Attachment 2 Trademark Guidelines.

12.

U.S. Government Licensees. The Internet Based Assessment System is a 11 Commercial item," as that term is
defined in48 C.P.R. 2.101 (Oct. 1995), consisting of"commercial computer software" and "commercial computer
software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the
Internet Based Assessment System with only those rights set forth herein.

13.

Computer Requirements. Agency acknowledges and agrees that the computer configuration requirements located
at http://www.act.org/workkeys/tech!index.html are required to properly access and use the Internet Based
Assessment System and that Contractor shall have no liability for matters relating to the fhilure to comply with
these computer requirements. Contractor may revise these configuration requirements from time to time in its
sole discretion.

14.

Use of Third Parties. In the event that a third pa11y is listed among the Authorized Agency Location(s) ("Third
Party"), the Agency enters into this Agreement on its own behalf and on behalf of the Third Party. The Agency
represents and warrants that it has the authority to bind the Third Party to this Agreement and that such Third
Party is hereby bound by the terms and conditions of this Agreement as if it were the Agency. The Agency agrees
that it shall be jointly and severally liable for all obligations of the Third Party.

201405191119
Customized for New Mexico Department of Workforce Solutions 201501090059

 Attachment 5

.ACT•WorkKeys·
Supplemental Tenus and Conditions for Spanish AC'I" WorkKeys® Internet Based Assessment System
The Spanish \VorkKeys system includes a suite of assessments that link to workplace skills and certain scoring and
reporting services that are associated with such assessments. Through this purchase the Agency will have access to the
Spanish \VorkKeys Internet based assessment system receive the following (collectively the "Internet Based
Assessment System 11) :
•

Access to the following Internet-delivered Spanish WorkKeys assessments (only those checked will be
available to the Agency):

i:>"J All Available

If only specific tests are included, indicate the authorized tests below:
Foundational Skills Assessments:

0 Reading for Information
D Locating Information
0 Applied Mathematics
D Applied Mathematics -Metric
D Applied Technology
•
•

access (via the Internet) to the scoring data for each Authorized Examinee tested by Agency, and
access (via the Internet) to the following reports:
o
o
o
o

Pending Registrations Report - A report that shows the names of the examinees who have been
registered by the Agency, but who do not have any assessments assigned to them.
Examinee Roster Report - A report that shows the names of the examinees and their login
credentials.
Test Attempt Data Report- A report that shows examinees' \VorkKeys scores and the number of
assessments launched by the Agency over a specified time period.
Individual Results Report- An individual score report for each examinee tested by the Agency.

Note: Contractor reserves the right to add, delete, and modifY reports from time to time in its sole and
absolute discretion.
Agency desires to purchase access to the Internet Based Assessment System. Therefore, the parties agree as follows:
1.

Definitions. As used in this Supplement, (a) the term "Assessments" shall refer to Contractor's Spanish
\VorkKeys internet based assessments indicated above, and (b) the term "Materials" shall mean the Assessments
and the accompanying materials, written or electronic, including without limitation the Supervisor's Manual or
other similar manuals published from time to time by Contractor. The term ''Authorized Examinees" means
individuals who are constituents/clients of the Agency located in New Mexico. The term "individual" means a
human being and does not include a partnership, corporation, association, cooperative, or other legal entity.

2.

Grant and Scope of License. Subject to the terms and conditions of this Agreement, Contractor hereby grants to
the Agency a non-exclusive and non-transferable right during the Term of this Agreement to (a) access the
Internet Based Assessment System for the purpose of assessing the Authorized Examinees, (b) administer the
Assessments to the Authorized Examinees, and (c) use the Materials in connection with the authorized
administration of the Assessments.

3.

Restrictions. Except as expressly permitted in this Supplement or otherwise permitted in the Agreement,
including, without limitation, in Supplemental Terms and Conditions for ACT Career Solutions Provider License,
as and to the extent made a part of the Agreement, Agency may not (a) use the Materials for any other purpose,
(b) assign, license, sell, loan, lease, or otherwise transfer the Internet Based Assessment System or the :Materials in
whole or in part, (c) autl10rize or allow a third party to use the Internet Based Assessment System or Materials, (d)

201405151507
Cm1omiud for New Mexico lkparlment ofWorkforce Solutions 20150 I091001

 copy, or allow anyone else to copy, in whole or in part, the Materials, (e) modify, reverse engineer, decompile, or
disassemble the Internet Based Assessment System or Materials, or (f) store the Materials at any location other
than the Authorized Agency Location(s).
4.

Contractor's Responsibilities. Subject to any contrary terms in any other Supplement, Contractor will (a) permit
the Agency access to the Internet Based Assessment System during the Term of this Agreement, (b) set up the
primary administrator upon receipt of the signed Agreement, (c) provide reasonable training if requested upon
commencement of this Agreement in the form of a self-paced online training session, (d) provide the Agency
reasonable technical support for the Internet Based Assessment System via telephone and electronic mail, (e)
score the Assessments and provide score reports through the Internet Based Assessment System, and (f) make
available the results data associated with the Agency's account during the terms of the Agreement for access by
Agency, subject to Contractor's archival schedule as published from time to time.

5.

Agency's Responsibilities. Agency shall (a) appoint an administrator who shall have the sole authority to
distribute passwords, and to set up additional administrators, proctors and Agency accounts, (b) assure proper
machine configuration, a compatible Internet browser, and Internet access, (c) install the prescribed secure
browser prior to the administration of any Assessments, (d) administer the Assessments in conformance with the
Supervisor's Manual and other similar manuals as published and updated from time to time, including
administering the Assessments in a proctored environment, (e) restrict access to the Materials to those employees or
individuals who have a ' 1need to know", (0 control the use of the Internet Based Assessment System, and assure that
only Authorized Examinees are provided passwords and are tested, (g) comply with all other terms and conditions of
this Agreement, including, but not limited to, paying, when due, all fees owed Contractor, and (h) assume full
responsibility for the selection of the Internet Based Assessment System and Assessments to achieve its intended
purpose.

6.

Test Security. Agency shall fully cooperate, and shall cause those individuals involved in the administration of or
preparation for the Assessments ("Administration Staff'), to fully cooperate with Contractor in the event of a test
security incident. The Materials (including without limitation the Assessments) are Contractor's Confidential
Information. Agency acknowledges that its failure to maintain the confidentiality of the Assessments will result in
damages to Contractor and may require Contractor to develop a replacement form. Accordingly if through the fault
of Agency or the Administration Staff, the security of an Assessment is compromised, Agency agrees to pay
Contractor the costs of developing a new form in addition to any other remedies under the law. Contractor may, in
its sole and absolute discretion, cancel scores in cases of testing irregularities, which may include without limitation,
use of a compromised test form, falsification by an examinee of his/her identity, impersonation of another examinee
(surrogate testing), unusual similarities in the answers of examinees at the same test center, or other indicators that
the test scores may not accurately reflect the examinee's level of educational development.

7.

Data. The parties acknowledge and agree that Contractor may use and disclose the data collected from the
administration of the Assessments, as set forth in Contractor's data usage policies, as amended from time to time.

8.

Use After Termination. Upon termination of this Agreement for any reason, Agency shall immediately
discontinue use of the Internet Based Assessment System and shall immediately destroy, or if requested by
Contractor, return, all copies of the Materials in its possession. Agency shall certify in writing its compliance
with these requirements.

9.

1vfaintenance. Contractor has established recurring maintenance windows during which Contractor may take down
servers and conduct routine maintenance checks. Contractor publishes the times of the maintenance windows
periodically. Contractor also reserves the right to provide unscheduled maintenance periodically. Contractor shall
not be responsible for any damages or costs incurred by Agency, if any, for such down time.

10.

Updates and Modifications. The Internet Based Assessment System may be modified or updated from time to time
at Contractor's sole discretion. Contractor shall make such modifications and updates available to Agency as they are
developed; provided however, that: (I) Contractor reserves the right to charge a fee for any new functionalities
available through the Internet Based Assessment System; and (2) to the extent that modifications or updates require
revised computer configuration, Agency shall provide such hardware or software that meets the revised computer
configuration requirements for the updated Internet Based Assessment System within the time frame set forth in a
written (including electronic) notice from Contractor detailing the timeframe of such modification or update and the
revised computer configuration requirements.

11.

Ownership. Contractor owns the WorkKeys system and all component parts, modifications, and updates thereto.
Contractor owns the copyrights on the Materials, and Contractor owns the trademark "WorkKeys." Except as

201405151507
Customized for New Mexico IRpartnk'nt of Workforce Solutions 201501091001

 specifically granted in this Agreement, Agency does not acquire any right, title, or interest in or to the WorkKeys
system, including the Internet Based Assessment System and Materials, any rights in patents and copyrights
applicable thereto, or any right, title or interest in or to the trademark "WorkKeys." Use of Contractor trademarks
is governed by Section 30 of the Services Contract and Attachment !Trademark Guidelines.
12.

U.S. Government Licensees. The Internet Based Assessment System is a 11 commercial item, 11 as that term is
defined in 48 C.F .R. 2.10 l (Oct. 1995), consisting of 11 Commercial computer software11 and 11 Commercial computer
software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R.
12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the
Internet Based Assessment System with only those rights set forth herein.

13.

Computer Requirements. Agency acknowledges and agrees that the following computer configuration
requirements are required to properly access and use the Internet Based Assessment System and that Contractor
shall have no liability for matters relating to the failure to comply with these computer requirements. Contractor
may revise these configuration requirements from time to time in its sole discretion.
Agency must use one of the following Supported Browsers:
•
Internet Explorer 7 and above
•
Firefox- latest version recommended
•
Chrome - latest version recommended
•
Safari- latest version recommended

14.

Use of Third Parties. In the event that a third party is listed among the Authorized Agency Location(s) ("Third
Party"), the Agency enters into this Agreement on its own behalf and on behalf of the Third Party. The Agency
represents and warrants that it has the authority to bind the Third Party to this Agreement and that such Third
Party is hereby bound by the terms and conditions of this Agreement as if it were the Agency. The Agency agrees
that it shall be jointly and severally liable for all obligations ofthe Third Party.

20140515!507
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 Attachment 6

.ACT" WorkKeys·
Supplemental Terms and Conditions for ACT® WorkKeys® Paper Based Assessment System
The \VorkKeys system includes a suite of assessments that link to workplace skills and certain scoring and reporting
services that are associated with such assessments. Through this purchase the Agency will have access to the
\VorkKeys paper based assessment system and will receive the following (collectively the ' 1Paper Based Assessment
System"):
•

Access to the following paper based \VorkKeys assessments (only those checked will be available to the
Agency):

12] All Available

If only specific tests are included, indicate the authorized tests below:
Foundational Skills Assessments:
0 Applied Math
0 Reading for Information
D Locating Information
D Applied Technology
D Observation
0Teamwork
0 Business Writing
0 Writing
0 Listening
•
•

access (via the mail) to the scoring data for each individual tested by Agency, and
access (via the mail) to the following reports:
o

Memo to Examinee- An individual score report for each examinee tested by the Agency.

o

Roster Report- A report that shows examinees' \VorkKeys scores over a time period.

o

Summary for Examinee - A summary report including the examinee's score along with a brief
description of the achieved skill level for each assessment administered.

Note: Contractor reserves the right to add, delete, and modifY reports from time to time in its sole and
absolute discretion.
Agency desires to purchase access to the Paper Based Assessment System. Therefore, the parties agree as follows:

t. Definitions. As used in this Supplement, (a) the term "Assessments'' shall refer to Contractor's \VorkKeys
paper based assessments indicated above, and (b) the term ~~Materials" shall mean the Assessments and the
accompanying materials, written or electronic, including without limitation the Supenisor 's 1\fanual, or other
similar manuals published from time to time by Contractor. The term "Authorized Examinees" means
constituents/clients of the Agency located in New Mexico. The term "individual" means a human being and
does not include a partnership, corporation, association, cooperative, or other legal entity.
2.

Grant and Scope of License. Subject to the terms and conditions of this Agreement, Contractor hereby grants
to the Agency a nonMexclusive and nonMtransferable right during the Term of this Agreement to (a) administer
the Assessments to the Authorized Examinees, and (b) use the Materials in connection with the authorized
administration ofthe Assessments.

C'ustomi7--.'d for New Mexico

D.-part~n\

201405191132
of\\'orkforc.J Solutions 201501091002

 3.

Restrictions. Except as expressly permitted in this Supplement or otherwise permitted in the Agreement, ,
Agency may not (a) use the Materials for any other purpose, (b) assign, license, sell, loan, lease, or otherwise
transfer the Materials in whole or in part, (c) authorize or allow a third party to use the Materials, (d) copy, or
allow anyone else to copy, in whole or in part, the Materials, (e) modifY, or disassemble the Materials, (f)
store the Jlvlaterials at, or administer the Assessments from, any location other than the Authorized Agency
Location(s), or (g) store excess \VorkKeys paper test booklets.

4.

Contractor's Responsibilities. Subject to any contrary terms in any other Supplement, Contractor will (a)
deliver Assessments to the Agency as it orders them, (b) score the Assessments and provide score reports, and
(c) make available the results data associated with the Agency's account during the terms of the Agreement
for access by Agency, subject to Contractor's archival schedule as published from time to time.

5.

Agency's Responsibilities. Agency shall (a) adhere to Supervisor's .A1anual and other similar manuals as
published and updated fi·mn time to time, including administering the Assessments in a proctored environment,
(b) restrict access to the Materials to those employees or individuals who have a "need to know", (c) assure that
only Authorized Examinees are tested, (d) Comply with all other terms and conditions of this Agreement,
including, but not limited to, paying, when due, all fees owed Contractor, (e) assume full responsibility for the
selection of the Paper Based Assessment System and Assessments to achieve its intended purpose (f) order
Materials only for scheduled event testing, and return excess WorkKeys paper test booklets to Contractor.

6.

Test Securitv. Agency shall fully cooperate, and shall cause those individuals involved in the administration of
or preparation for the Assessments ("Administration Staff') to fully cooperate with Contractor in the event of a
test security incident. The lvfaterials (including without limitation the Assessments) are Contractor's
Confidential Information. Agency acknowledges that its failure to maintain the confidentiality of the
Assessments will result in damages to Contractor and may require Contractor to develop a replacement form.
Accordingly if through the fault of Agency or the Administration Staff, the security of an Assessment is
compromised, Agency agrees to pay Contractor the costs of developing a new form in addition to any other
remedies under the law. Contractor may, in its sole and absolute discretion, cancel scores in cases of testing
irregularities, which may include without limitation, use of a compromised test form, falsification by an
examinee of his/her identity, impersonation of another examinee (surrogate testing), unusual similarities in the
answers of examinees at the same test center, or other indicators that the test scores may not accurately reflect
the examinee's level of educational development.

7.

Data. The parties acknowledge and agree that Contractor may use and disclose the data collected from the
administration of the Assessments, as set forth in Contractor's data usage policies, as amended from time to
time.

8.

Use After Termination. Upon termination of this Agreement for any reason, Agency shall immediately
discontinue use of the Paper Based Assessment System and shall immediately return all copies of the
Materials in its possession or, upon Contractor's request, shall destroy all copies of the Materials in its
possession. Agency shall certify in writing its compliance with these requirements.

9.

Updates, and Modifications. The Paper Based Assessment System may be modified or updated from time to
time at Contractor's sole discretion. Contractor may make such modifications and updates available to Agency
as they are developed; provided however, that Contractor reserves the right to charge a fee for any new features.

10.

Ownership. Contractor owns the WorkKeys system and all component parts, modifications, and updates
thereto. Contractor owns the copyrights on the Materials, and Contractor owns the trademark "WorkKeys."
Except as specifically granted in this Agreement, Agency does not acquire any right, title, or interest in or to
the WorkKeys system, including the Paper Based Assessment System and Materials, any rights in patents and
copyrights app1icable thereto, or any right, title or interest in or to the trademark ''JVorkKeys." Use of
Contractor trademarks is governed by Section 30 of the Services Contract, and Attachment 2Trademark
Guidelines.

II.

Use of Third Parties. In the event that a third party is listed among the Authorized Agency Location(s)
("Third Party"), the Agency enters into this Agreement on its own behalf and on behalf of the Third Party.
The Agency represents and warrants that it has the authority to bind the Third Party to this Agreement and
that such Third Party is hereby bound by the terms and conditions o[this Agreement as if it were the Agency.
The Agency agrees that it shall be jointly and severally liable for all obligations of the Third Party.
201405191132
Customiud for New .Mexiw !Rpartmont of\\'orkforce Sohr1ions 201501 091 002

 Attachment 7

NATIONAL
CAREER READINESS
CERTIFICATE'
Supplemental Terms and Conditions for
RegiSTAR"' related Products and Services

Contractor has offered Agencythe option to participate in a credentialing program called the National
Career Readiness Certificate program. As part of the National Career Readiness Certificate program,
Contractor creates a database (known as "RegiSTAR'') that includes assessment information on a group of
examinees defined by the Agency and which calls out which of those examinees have earned a certificate
under Contractor's guidelines. Agency may then order certificates for those examinees. Agency desires that
Contractor print National Career Readiness Certificates for it Accordingly, the parties agree as follows:
1.

Definitions.
a.
b.
c.

2.

"Authorized Agency Locations" means the locations indicated on Attachment 1.
"Eligible Examinees" are examinees at the Authorized Agency Locations who have
received qualifying scores on the Qualifying Assessments.
"QualifYing Assessments" means Contractor's \VorkKeys'10 assessments in Applied
Mathematics, Reading for Information, and Locating Information.

Agency's RegiST AR Account.
a.
Establishing the RegiSTARTM Database. Contractor will establish a RegiSTAR database
for the Agency. The RegiSTAR database will include assessment information regarding the
performance of the Eligible Examinees on the QualifYing Assessments. Subject to any applicable
privacy restrictions, Agency will also be able to retrieve an electronic file containing the login
names of the Eligible Examinees and their related passwords which will allow such examinees to
release their certificate information electronically. The fees for establishing the RegiSTAR
database, for annual maintenance of it, and for each individual identified by RegiST AR as an
Eligible Examinee are set forth in the Pricing Exhibit.
b.
Match Criteria: Contractor requires that certain identification information match and be
included on all qualifYing test records before those records form the basis for a credential. This
process is important to ensure that qualifying scores are attributed to the correct examinee. If
multiple test administrations are considered, the information must be identical on all records in the
identification match fields. The five critical fields are: First Name; Last Name; Month of Birth;
Day ofBirth; Examinee !D.
c.
Privacy. Typically, the Agency will have access to the assessment information related to
the assessments administered at the Authorized Agency Locations; however, Contractor reserves
the right to withhold personally identifiable information and institutionally identifiable
information in accordance with Contractor's data privacy policy as it may be amended from time
to time, and other legal and contractual requirements. Contractor's current data privacy policy
permits the sharing of personally identifiable information derived from the administration of
WorkKeys Assessments with, among others, (I) the individual that is the subject of such
information, (2) persons that paid for such individual to take the Assessment, and (3) persons who
administer the Assessments to such individual. If Agency is not among the persons permitted to
receive personally or institutionally identifiable information under Contractor's data privacy
policy or other legal or contractual requirements, Agency may not be able to view personally or
institutionally identifiable information.

2014051517

 d.
Dissemination of User Name and Passwords. Each Eligible Examinee that has provided
Contractor a valid email address in accordance with Contractor's instructions will receive an email
from Contractor providing them with their individual user name and password. Subject to the
privacy restrictions set forth in Section 2(c}, Agency may also access an electronic file containing
such information from their RegiSTAR account.

3.

Certificate Production and Distribution.
a.

Contractor will create certificates based on the following options:
(i.)
Assessment Type(s)
0 Internet Assessments
0 Paper Assessments
~ Both Internet and Paper Assessments

(ii.)

Frequency
~ Weekly
D Bi-Weekly
D Monthly
D Once-A-Year
During the month of:
D Upon Request (but not more frequently than weekly):

(iii.)

Production Output
~ Contractor Prints
0 Contractor Creates Certificate Registration Numbers

(iv.)

Co-branded Certificate (Must be pre-approved by Contractor)
D No
~ Yes

b. The certificate will generally appear as follows:

*

NA'I'IONAI.

CAI{EER H.E,\Il!NESS
CEH.TIFICATE ·

*

""'"' .

l"•1>>·tH>\"""

('''"'''"'

Joseph P. Samplo

•

ACT

ACT reserves the right to change the certificate requirements, data elements, and/or the "look and
feel" of the certificate in its sole discretion, at any time and from time to time. The content of the
certificate, including without limitation, the look and feel, must be pre-approved by ACT.
Additional endorsements or trainings may not be displayed on the certificate.

c.

Only the following certificates will be issued to Agency's examinees:
(i)

Platinum Certificates: Examinees receiving a score of 6 or above on all three of
the QualifYing Assessments receive the Platinum Certificate.

2014051517

 (ii)

Gold Certificates: Examinees receiving a score of 5 or above on all three of the
QualifYing Assessments receive the Gold Certificate.

(iii)

Silver Certificates: Examinees receiving a score of 4 or above on all three of the
Qualifying Assessments receive the Silver Certificate.

(iv)

Bronze Certificates: Examinees receiving a score of 3 or above on all three of
the Qualifying Assessments receive the Bronze Certificate.

d.

Certificates will only be issued if the Qualifying Assessments used by an individual to
achieve a Credential Level were administered to that individual under a proctored, secure
environment.

e.

The Credential Level (Platinum, Gold, Silver, or Bronze) will be displayed on the
certificate.

f.

The certificate will contain the National Career Readiness Certificate registration number
and issue date on the face of the certificate.

g.

Options for mailing if Contractor prints the National Career Readiness Certificates.
Mailing instructions are as follows:

h.

(i.)

0 Contractor sends all of the National Career Readiness Certificates to the
Agency at the following address: _ _ .

(ii.)

!ZJ Contractor sends National Career Readiness Certificates to the Authorized
Agency Locations. Authorized Agency Locations will receive only the
certificates for the examinees that were assessed by such location.

Licence of and use of Contractor's trademarks is governed by Section 30 of the Services
Contract andAttachment 1 Trademark Guidelines.

20140-tl81105
Customized for New Mexico Department ofWorkfon:e Solutions 201501091010

 Attachment 8

T

o

career
Curriculum

Supplemental Terms and Conditions for AC'I"' Career Curriculum Related Products and Services
Agency desires to purchase access to certain ACT® Career Curriculum Related Products and Services as more fully
described herein. Therefore, the parties agree as follows:

I.

Definitions.
"Licensed Product(s)": means the ACT Career Curriculum Products identified below and any related manuals
and materials, as may be updated at any time and from time to time, by Contractor.
1:><:) Career Ready I 0 I

Tht

D KeyTrain®
D Soft Skills Suite
"Authorized Users" means Agency-authorized students, employees or similar constituents of the Agency who
are (a) attending, (b) employed at, or (c) physically utilizing a Licensed Product at, in each case in person, an
Authorized Agency Location.
"Authorized Agency Locations" means the locations identified in Attachment 3.
2.

Grant and Scope of License. Subject to the terms and conditions of this Agreement, Contractor hereby grants to
the Agency a non-exclusive and non-transferable right during the Term of this Agreement to use the Licensed
Product for the purpose of skill remediation for, and training of, the Authorized Users at the Authorized Agency
Locations (provided that, Authorized Users also may be allowed online access to Licensed Product from locations
other than Authorized Agency Locations). The Licensed Products, including its embedded quizzes, tests and
reports are in no way intended as a high-stakes assessment or as a replacement for assessments such as the
\VorkKeys·1!.1 assessments, certifications such as the National Career Readiness Certificate, or Agency's own
records used for any remuneration of Authorized Users. The Licensed Product is licensed, not sold.

3.

Restrictions. Except as expressly permitted in this Supplement or otherwise permitted in the Agreement,
including, without Jimitation, in Supplemental Terms and Conditions for ACT Career Solutions Provider License,
as and to the extent made a part of the Agreement, Agency may not (a) use the Licensed Product for any other
purpose, (b) assign, license, sell, loan, lease, or otherwise transfer the Licensed Product or the related materials in
whole or in part, (c) authorize or allow a third party to use the Licensed Product, (d) copy, or allow anyone else to
copy, in whole or in part, the Licensed Product, (e) modify, reverse engineer, decompile, or disassemble the
Licensed Product or related materials, or (f) store the Licensed Product's related materials at any location other
than the Authorized Agency Location(s) (provided that, Authorized Users may be allowed online access to
Licensed Products from locations other than Authorized Agency Locations).

4.

Agency's Responsibilities. Agency shall (a) appoint an administrator who sha11 have the sole authority to
distribute passwords, and to set up additional accounts, (b) assure proper machine configuration, a compatible
Internet browser, and Internet access, (c) use each Licensed Product in conformance with the related manuals as
published and updated from time to time, (d) restrict access to the Licensed Product and related materials to those
individuals who have a uneed to know1' for the authorized purpose, (e) control the use of the Licensed Product, and
assure that only Authorized Users are provided access, (f) comply with all other terms and conditions of this
Agreement, including, but not limited to, paying, when due, all fees owed Contractor, and (g) assume full
responsibility for the selection of the Licensed Product to achieve its intended purpose.

20l40Sl5l523
Customized for New Mexico Department of Workforce Services 20150109100~

 5.

Data. The parties acknowledge and agree that Contractor may use and disclose the data collected from the use of
the Licensed Products, as set forth in Contractor's data usage policies, as amended from time to time.

6.

Use After Termination. Upon termination of this Agreement for any reason, Agency shalJ immediately
discontinue use of the Licensed Products and shall immediately destroy, or if requested by Contractor, return, all
copies of the related materials in its possession. Agency shall certify in writing its compliance with these
requirements.

7.

Maintenance. The Licensed Product is subject to recurring maintenance windows, and occasionally unscheduled
maintenance, during which servers may be taken offiine. Contractor shall not be responsible for any damages or
costs incurred by Agency, if any, for such down time.

8.

Updates and Modifications. The Licensed Product may be modified or updated from time to time at Contractor's
sole discretion. Contractor shaH make such modifications and updates available to Agency as they are developed;
provided however, that: (a) Contractor reserves the right to charge a fee for any new functionalities available
through the Licensed Product; and (b) to the extent that modifications or updates require revised computer
configuration, Agency shaH provide such hardware or software that meets the revised computer configuration
requirements for the updated Licensed Product within the time frame set forth in a written (including electronic)
notice from Contractor detailing the timeframe of such modification or update and the revised computer
configuration requirements.

9.

Ownership. All title and copyrights in and to the Licensed Product (including but not limited to any images,
photographs, animations, video, audio, music, text and 11 applets,t' incorporated into the Licensed Product), the
accompanying printed materials, and any copies of the Licensed Product, are owned by Contractor or its suppliers.
All rights not specifically granted under this License Agreement are reserved by Contractor. Contractor owns the
trademarks "Key1)·ain" and "Career Ready 101." Except as specifica11y granted in this Agreement, Agency does
not acquire any right, title, or interest in or to the Licensed Product, any rights in patents and copyrights applicable
thereto, or any right, title or interest in or to the trademarks "KeyTrain 1' and "Career Ready 101." Use of
Contractor trademarks is governed by Section 30 of the Services Agreement, and Attachment 2 Trademark
Guidelines.

10.

U.S. Government Licensees. The Licensed Product is a 11 commercial item, 11 as that term is defined in 48 C.F.R.
2.101 (Oct. 1995), consisting of 11 commercial computer software 11 and 11 Commercial computer software
documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and
48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Licensed
Product with only those rights set forth herein.

II.

Computer Requirements. Agency acknowledges and agrees that the computer configuration requirements located
at http://www.keytrain.com/reguirements.asp are required to properly access and use the Licensed Product and
that Contractor shall have no liability for matters relating to the failure to comply with these computer
requirements. Contractor may revise these configuration requirements from time to time in its sole discretion.

12.

Use of Third Parties. In the event that a third party is listed among the Authorized Agency Location(s) ("Third
Party"), the Agency enters into this Agreement on its own behalf and on behalf of the Third Party. The Agency
represents and warrants that it has the authority to bind the Third Party to this Agreement and that such Third
Party is hereby bound by the terms and conditions of this Agreement as if it were the Agency. The Agency agrees
that it shall be jointly and severally liable for all obligations of the Third Party.

201405151523
Customized for New ~lexico Department of Workforce Services 201501091004