ICECC

ITEM WRITING PARTICIPATION AGREEMENT

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GENERAL TERMS AND CONDITIONS

January 2020

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an individual recognized as a Subject Matter Expert by EC-Council (individually a “Party” and together the
“Parties”).

1.0 OBJECTIVES AND SERVICES

3.0 TERM
ICECC desires to create an item bank for the
This Agreement commences with the Effective
Date and will continue to be valid until 31st December
2020.
4.0 TASKS, RESTRICTIONS AND
BENEFITS OF PARTICIPANT

Task
4.1 Participant is to provide EC-Council with
2.0 DEFINITIONS Items for the exam according to the
Job Task Analysis provided by EC-Council
As used throughout this Agreement, the 4.2 Participant is to follow the Item Writing
following terms shall have the meaning specified guidelines provided by EC-Council
below:
Restrictions
2.1 Item: Exam question and distractor for the 4.3 Participant is NOT a CND trainer
4.4 Participant shall NOT attempt the new
CND exam
2.2 Stem: Exam question for the CND exam 4.5 Participant shall NOT have access to the
final exam forms.
2.3 Distractor: Option provided for a Stem.

2.4 Item Writing: Service(s) of creating Items Benefits

to be provided by Participant for ICECC
4.6 Participant can collect EC-Council
2.5 Item Bank: A pool or group of Items, Continuing Education (ECE) credits for
created by Participant for ICECC. participation in the exercise...
2.6 Exam: A set of Items from the Item Bank
selected according to a set of Exam
specifications to be provided by ICECC

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5.0 RESPONSIBILITIES OF EC-COUNCIL
5.1 Appoint a representative to guide and
ensure the entire exercise is supervised.
5.2 To record all discussions during the course
of the exercise and Participant can request
for a copy of the recording
6.0 FEES
Participant understands that this is a voluntary
contribution and that there is no monetary
compensation for the participation.
7.0 OWNERSHIP
7.1 ICECC Owned Materials
Participant acknowledges and agrees that
ICECC holds all proprietary rights, including, but
not limited to, copyright, trademark, trade secret,
patent, and other intellectual property rights in the
Items and Item Bank (collectively, the “ICECC
Owned Materials”) which will be provided by
ICECC to Participant to perform its responsibilities
under this Agreement.
8.0 CONFIDENTIALITY
8.1 ICECC Owned Materials
Participant shall hold ICECC Owned
Materials, ICECC Tests, ICECC exhibits, and that
business information identified as confidential by
ICECC in confidence and shall not use, disclose,
copy or publish any such information without the
prior written approval of ICECC. Participant shall
safeguard such information to the same extent it
safeguards its like information but in no event
utilizing less than a reasonable degree of care.
8.2 Disclosure Legally Compelled
In the event that either Participant or ICECC
becomes legally compelled (or if requested by an
applicable regulatory body) to disclose any of the
confidential information of the other Party, the
receiving Party will provide the disclosing Party with
prompt written notice, unless providing such notice
would violate applicable law or regulation, so that
the disclosing Party may seek a protective order or
other appropriate remedy (and if the disclosing
Party seeks such an order, the receiving Party will
provide such cooperation as the disclosing Party
reasonably requests) and/or waive compliance with
the provisions of this Agreement. In the event that
such a protective order or other remedy is not
obtained, or if the disclosing Party waives
compliance with the provisions of this Agreement,
the receiving Party will furnish only that portion of
the confidential information which is legally
required (in the opinion of its counsel).
8.3 Exceptions
This Section 8 shall not apply to information
that (i) is or becomes generally available to the public
other than as a result of disclosure by the receiving
Party or anyone to whom the receiving Party transmits
the information, (ii) becomes available to the
receiving Party on a non-confidential basis from a
source other than the disclosing Party who is not
bound by a confidentiality agreement with the
disclosing Party, (iii) was known to the receiving
Party or in its possession prior to the date of
disclosure by the disclosing Party, (iv) is furnished by
the disclosing Party to others with written permission
to disclose, or (v) is independently developed by the
receiving Party without reference to the confidential
information.
9.0 INDEMNIFICATION
9.1 Participant’s Indemnity
Participant agrees to indemnify, defend and
hold ICECC harmless from and against any and all
Losses arising out of any third party claim, action or
proceeding, based directly or indirectly on the
following, for services provided by Participant in a
Statement of Work pursuant to Section 4 herein, (a)
the operation by Participant or its agents or (b) any
allegation that the Participant Owned Material(s)
infringes any third party intellectual property right,
provided ICECC (1) gives Participant sole control of
the defense of such claim, action or proceeding and
(2) ICECC agrees to provide reasonable information
and assistance. This Section 9.1 shall not apply to
any claim of infringement resulting from ICECC’s
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modification or misuse of the Participant Owned
Materials or combination of the Participant Owned
Materials with any other materials or product.
Participant shall indemnify ICECC for any losses
that may arise as result of Participant breaching
Section 7.3.5.
9.2 ICECC’s Indemnity
ICECC agrees to indemnify, defend and hold
Participant and its agents harmless from and against
any and all Losses arising out of any claim, actions, or
proceeding based directly or indirectly on the content,
character, and/or validity of any Item or Test, the cut-
score or pass-fail quotient established by ICECC, and
the use of any Test results for assessment,
certification, licensing or any other purpose by
ICECC. ICECC shall also indemnify, defend, and
hold Participant harmless from and against any and all
Losses arising out of any claim, action, or proceeding
based directly or indirectly on compliance by
Participant with specific directions and instructions by
ICECC regarding the conditions and conduct of any
services set forth in applicable SOW(s), provided that
Participant reasonably follows ICECC’s directions or
instructions. Additional indemnification obligations
may be set forth in the applicable Statement of Work.
9.3 Losses
“Losses” shall mean (i) the amounts payable by
the Indemnified Party to one or more third parties
(including any and all losses, liabilities, damages,
claims, fines, penalties, costs, expenses, demands,
assessments, levies, and claims), whether by means
of judgment, settlement, arbitration award, or
otherwise; and (ii) the Indemnified Party’s costs and
expenses (including any and all expert fees, court
costs, reasonable costs of investigation, litigation,
settlement, judgment, and appeal, reasonable
attorney’s fees in connection with the foregoing or
with successfully establishing the right to
indemnification under this Section 9.0, and
expenses and any interest and penalties levied on a
judgment or arbitration award or payable as part of
any settlement).
9.4 Procedures
The Party claiming indemnification under
this Section 9 (the “Indemnified Party”) shall
promptly notify (and, in the case of any action, suit,
arbitration, or judicial or administrative proceeding,
shall so notify no later than fifteen (15) days after
the Indemnified Party has received notice thereof or
has been served with a complaint or other process)
the other Party (the “Indemnifying Party”) when it
has knowledge of circumstances or the occurrence
of any events which are likely to result in an
indemnification obligation under this subsection or
when any action, suit, arbitration, or judicial or
administrative proceeding is pending or threatened
that is covered by this subsection.
Upon request, and to the extent permitted by
applicable law, the Indemnifying Party shall have
the right to defend, settle, or compromise any such
suit or proceeding, at its own expense, provided
that: (a) the Indemnifying Party demonstrates to the
satisfaction of the Indemnified Party that it is
financially able to defend such action and to pay
any settlement, award or judgment; (b) counsel
retained by the Indemnifying Party are reasonably
satisfactory to the Indemnified Party; and (c) no
settlement shall be made which imposes any
obligations on (other than the payment of money
which is made by the Indemnifying Party on behalf
of the Indemnified Party), or is prejudicial to, the
Indemnified Party, without the prior consent of the
Indemnified Party, which consent shall not be
unreasonably withheld.
The Indemnified Party shall cooperate with
the Indemnifying Party in the defense of any such
suit or proceeding, and the Indemnifying Party shall
reimburse the Indemnified Party for its expenses
with respect thereto, including counsel of its choice.
Such cooperation shall include, but not be limited
to, the making of statements and affidavits,
attendance at hearings and trials, production of
documents, assistance in securing and giving
evidence and obtaining the attendance of witnesses,
provided, however, that in no event shall either
Party be required to waive attorney-client or other
applicable privileges.
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Failure by the Indemnified Party to promptly
notify the Indemnifying Party as required by this
subsection shall not invalidate the claim for
indemnification, unless such failure has a material
adverse effect on the settlement, defense, or
compromise of the matter that is the subject of the
claim for indemnification. In addition, the
Indemnified Party shall be responsible for any claims
or losses which could have been avoided or mitigated
by prompt notice as required by this subsection.
10.0 NO THIRD-PARTY BENEFICIARIES/
LIMITATION OF LIABILITY/
WARRANTY DISCLAIMER
10.1 No Third Party Beneficiaries
Nothing in this Agreement shall entitle any
person (including, without limitation, Candidates)
to any rights as a third-party beneficiary under this
Agreement.
10.2 Limitation of Liability
NEITHER PARTY SHALL BE LIABLE
TO THE OTHER FOR PUNITIVE,
EXEMPLARY, SPECIAL, INDIRECT, OR
CONSEQUENTIAL DAMAGES, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS,
EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES NOR, SUCH DAMAGES ARE
PERMITTED UNDER APPLICABLE LAW.
PARTICIPANT’S ENTIRE LIABILITY TO ICECC
FOR DAMAGES IN ANY WAY RELATED TO
THE SUBJECT MATTER OF THIS AGREEMENT
AND ALL SOWS SHALL NOT EXCEED THE
FEES PAID DURING THE TERM BY ICECC FOR
THE SERVICES THAT CAUSED THE DAMAGE.
10.3 Warranty Disclaimer
EXCEPT AS SPECIFICALLY SET
FORTH HEREIN OR A STATEMENT OF WORK
BETWEEN THE PARTIES, EACH PARTY
HEREBY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE OR ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE
PRACTICE.
11.0 TERMINATION
11.1 Termination for Cause
This Agreement may be terminated by either party
by giving ten (10) days’ notice in writing. In the
event of a material breach of this Agreement by
either Party, the non-breaching Party may terminate
this Agreement if such breach is not cured within
thirty (30) days from receipt of a detailed written
notice of such breach, provided.
11.2 Performance Until Termination
Notwithstanding the delivery of a notice of
default or notice of termination by either Party to
the other, all obligations to perform services and to
pay for such services shall continue in effect and be
duly observed and complied with by both Parties
until the effective date of termination.
12.0 NOTICES
Any notices or other communications
required or which may be given by either Party to
the other Party under this Agreement, shall be in
writing and may be sent by facsimile, however, the
original shall be sent either by overnight courier,
with a verified receipt, or by registered or certified
mail, postage prepaid and addressed to the address
stated below or to such other address as the Parties
shall subsequently designate to each other by notice
given in accordance with this Section 12. Such
notice shall be deemed to be sufficiently given
when the receiving Party receives the original.
FOR ICECC: International Council of E-
Commerce Consultants
Attention: Sanjay Bavisi
101C Sun Ave NE
Albuquerque, NM 87109
FOR Participant:
Attention:
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13.0 INDEPENDENT CONTRACTOR
Under this Agreement, Participant agrees
that it will perform as an independent contractor,
and not an agent or employee of ICECC.
14.0 PREVAILING PARTY
The unsuccessful Party in any action or
proceeding shall pay for all costs, expenses and
reasonable attorney’s fees (including cost of inside
counsel) incurred by the Prevailing Party or its
agents or both in enforcing the terms and conditions
of this Agreement. The term “Prevailing Party” as
used herein shall include without limitation a party
who utilizes legal counsel and brings or defends an
action, suit, or judicial or administrative proceeding
involving an alleged breach or default under this
Agreement and, if the plaintiff, obtains substantially
the relief sought (whether by compromise,
settlement, award or judgment) or, if the defendant,
the plaintiff fails to substantially obtain the relief
sought. In the event that neither Party can be
considered the Prevailing Party, the judge shall have
the discretion to equitably apportion costs and
attorney’s fees and expenses.
15.0 APPLICABLE LAW
This Agreement shall be construed and
enforced in accordance with, and the validity and
performance hereof shall be governed by the laws
of the State of New Mexico, USA without reference
to principles of conflict of laws thereof. Judicial
proceedings regarding any matter arising under the
terms of this Agreement shall be brought solely in
the federal or local courts of the State of Maryland.
16.0 FORCE MAJEURE
Neither Party shall be liable for delay or
failure in performance of any of its obligations under
this Agreement (other than payment obligations) when
such delay or failure arises from events or
circumstances beyond the reasonable control of
such Party, including, without limitation, acts of
God, fire, flood, war, explosion, sabotage,
terrorism, embargo, civil commotion, acts or
omissions of any government entity, supplier
delays, communications or power failure that are
not caused by Participant, equipment or software
malfunction not caused by Participant and which
are of a general nature within commerce (i.e. a
general failure of the Windows Operating System or
similar type of failure), or labor disputes.
17.0 NO WAIVER
No failure on the part of either Party to
exercise, no delay in exercising, and no course of
dealing with respect to any right, power or privilege
under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any
such right, power, or privilege preclude any other or
further exercise thereof or the exercise of any other
right, power, or privilege under this Agreement.
18.0 ASSIGNMENT
Neither Party may assign, sublicense or
otherwise transfer this Agreement, or any part
thereof, without the prior written approval of the
other Party, which approval shall not be
unreasonably withheld. A copy of the proposed
contract shall accompany any such request for
approval of a proposed assignment between the
Party and the proposed assignee/subcontractor.
Participant may, without the necessity of ICECC’s
consent, assign its rights and obligations under this
Agreement to (a) any subsidiary or affiliate of
Participant, or (b) any successor in interest pursuant
to merger or acquisition.
19.0 QUALITY CONTROL
During the term of this Agreement and for a
period of 12 months after the termination or
expiration hereof, ICECC shall have the right, at its
expense and upon no less than 3 business days prior
written notice, to audit Participant’s records to
determine compliance with the terms of this
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Agreement including, but not limited to, compliance
with ICECC’s guidelines. Such audit may be
conducted by ICECC by its authorized
representative(s), and shall not interfere
unreasonably with Participant’s business activities.
An Annual Evaluation shall be conducted
by ICECC on the Services and Performances
provided by Participant.
20.0 FAX AND ELECTRONIC SIGNATURES
Electronic and facsimile signatures of the
Agreement and its SOWs shall be as binding as
originals.
validity or enforceability of the other provisions of
this Agreement, which shall remain in full force and
effect. If any of the provisions of this Agreement
shall be deemed to be unenforceable by reason of its
extent, duration, scope or otherwise, then the Parties
contemplate that the court making such
determination shall enforce the remaining
provisions of this Agreement, and shall reduce such
extent, duration, scope, or other provision and shall
enforce them in their reduced form for all purposes
contemplated by this Agreement.
24.0 MODIFICATIONS
This Agreement, including the terms
established in any Statement of Work, can be
modified only by a writing signed by both Parties.

21.0 SURVIVAL BEYOND TERMINATION 25.0 HEADING

OR EXPIRATION
It is mutually agreed that any and all
obligations arising under Sections 6.0 Fees, 7.0
Ownership, 8.0 Confidentiality, 9.0 Indemnification,
10.0 No Third-Party Beneficiaries/Limitation of
Liability/Warranty Disclaimer, 14.0 Prevailing Party
and 15.0 Applicable Law shall survive any
termination or completion of this Agreement.
22.0 SEVERABILITY
The invalidity or unenforceability of any
provision of this Agreement shall not affect the
The headings to the sections hereof are for
convenience only and have no legal effect.
26.0 ENTIRE AGREEMENT
This Agreement, including all
accompanying Statement(s) of Work attached
hereto, constitutes and expresses the entire
agreement and understanding between the Parties
regarding all the matters herein referred to, and
supersedes all previous discussions, promises,
representations, and understandings relative thereto,
if any, between the Parties

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I would like to attend the online meetings schedule and interact with other item writers
I would like to be sent recordings of the meetings scheduled online and communicate only via emails

IN WITNESS WHEREOF, the receiving party hereunder has executed this Agreement as of the day and
year first above written.

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Sign:

Name:

Title:

Date: