Assessment Systems Logo

Terms of Use

Updated: April 14, 2017

IMORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. The following document (these "Terms of Use" or "Terms") describes the terms under which Assessment Systems Corporation ("Assessment Systems") offers each individual or entity (hereinafter, "you" or "Customer") access to its services through the Assessment Systems website and its related applications and services (the "Site").

It is important to us that the Site provides you with a helpful and reliable experience. To protect Assessment Systems’ rights and yours, Assessment Systems has prepared these Terms of Use that apply to all users of the site. If you have any questions concerning the Terms, please contact support@assess.com.

Your use of the Site is subject to all terms and policies posted on this site. By accessing the Site or any content found on the Site, you agree to comply with and to be bound by the Terms set out below, including the policies and guidelines linked to (by way of the provided URLs) from these Terms. If you do not understand or agree with these Terms, please do not use the Site or the Services (as defined below).

You may not access the Site or the Services if your business competes with Assessment Systems, except with Assessment Systems’ prior written consent.

Definitions

“Site” is the Assessment Systems website and its related applications and services.

“Software” is the Fastest™ and/or Certifier™ software applications, including any customized versions, future releases and upgrades.

“Application Services” is the license to use the Site for the Term of this Agreement, User access, and actual use of the Software.

“Consulting Services” can include, but is not limited to, psychometric services, credentialing services, business planning services.

“Customization/Development Services” is functionality developed or configured for the Application that is at the specific request of the Client.

"Workspace” is an organizational account in Fastest™ and/or Certifier™ with the purpose of creating a bank of test items, administering examinations, and/or conducting other test related activities.

“Sub-Workspace” is a workspace beneath the parent Workspace, which controls a sub-set of Users’ access, and allows certain content and business rules to be controlled by Users of the parent Workspace.

“Intellectual Property” or “IP” means any or all of the following: (a) works of authorship including, without limitation, recordings, graphs, drawings, items, tests, computer programs, documentation, designs, files, records, data and mask works; (b) ideas, inventions (whether or not patentable), designs, formulas, procedures, methods and technology;(c) Confidential Information and trade (d) databases, reports, data compilations and collections, analyses and technical data; (e) trademarks; and (f) domain names, web addresses and web sites.

“IP Rights” means worldwide common-law and statutory rights associated with (a) patents, divisions, continuations, renewals, reissuances and extensions thereof and patent applications; (b) copyrights, copyright registrations and copyright applications, “moral” rights and mask work rights; (c) the protection of trade and industrial secrets and confidential information; (d) individuals’ names, likenesses and personal characteristics; and (e) trademarks, trade names, service marks and logos.

“New IP” means IP created, developed, or designed by Provider (or a permitted subcontractor) in the performance of the Services.

“Vendor” is Assessment Systems or Assessment System’s designee, the seller.

“Vendee” is the entity to whom a Service is being sold.

“Software as a Service (SaaS)” is a software licensing and delivery model in which softwareis licensed on a subscription basis and is centrally hosted.

“Support” means understanding how to utilize and navigate the system.

“Technical Support” means assisting with issues related to the intended function of the system.

“Network” means the brick and mortar test centers and test sites that have an agreement with Assessment Systems to provide test center services.

“Bug” is an error, flaw, failure or fault in the Site that causes it to produce an incorrect or unexpected result, or to behavein unintended ways.

“Provider” is Assessment Systems Corporation.

“User” is any person or entity that uses or accesses the Site and/or Services. Users may be referred to in the second person (you) in these Terms of Use.

“Customer” is an entity that has entered into an Agreement to use the Site and/or Services.

  1. Master Service Agreement (“MSA”)

    1. These Terms are incorporated by reference into each MSA or Order Form executed by the company or individual identified as the “Customer” therein and Assessment Systems, pursuant to which the Customer receives the right to access and use Assessment Systems owned and/or leased computer systems and certain proprietary and licensed software and other information (the “AS Systems” or “Services”) as upgraded from time to time.
    2. These Terms and, if applicable, the, MSA or Order Form, together comprise a binding written agreement between Customer and Assessment Systems, effective as of the date of mutual execution of the MSA by Assessment Systems and Customer (this "Agreement"). In the event that no MSA or Order Form exists between Assessment Systems and the Customer, then this Agreement, along with Assessment Systems current standard pricing and service levels constitute the terms of the Agreement. Assessment Systems may amend these Terms at any time in its sole discretion, effective upon posting the amended Terms at the domain or subdomains of www.assess.com where the prior version of the Terms was posted, or by communicating these changes through any written contact method Assessment Systems has established with you.
    3. In the event of any conflict between the provisions contained in an MSA and these Terms of Use, the provisions in the MSA shall control (provided, however, that the fact that a provision appears in an MSA but not these Terms of Use, or in these Terms of Use but not the applicable MSA, shall not be deemed to be a conflict for purposes of this sentence).
  2. Price and Payment

    1. You agree to pay all fees and other charges in accordance with the Agreement.
    2. All fees are due net twenty-one (21) days from invoice date. If you do not pay the fees or other charges when they are due, then a finance charge of two percent (2%) per month or the maximum rate allowed by law will be assessed.
    3. In the event that you disagree with any charges on your invoice, you must send written notification to Assessment Systems within five (5) business days of your receipt of the first statement that contained such charges to address your billing inquiries.
    4. Assessment Systems may impose a special handling charge of 5% if special invoicing requirements apply, per annum
    5. Except where prohibited by applicable law, if you pay any fees due hereunder via credit or debit card, then Assessment Systems reserves the right to charge you an additional fee equal to three percent (3%) of the amount charged, and you hereby consent to such charge being made against the credit or debit card.
    6. If you exceed the contracted level of Services during the term of this Agreement, you will be charged as specified in your MSA or Order Form, or if not specified, using the then-current rates for the overage. Where no limits for usage of Services are explicitly given in your MSA or Order Form, limits will apply as specified by product earlier in this document.
    7. You are responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on Services provided under this Agreement, excluding taxes based on Assessment System's net income.
    8. Free Accounts. FastTest provides both paid and free services offering computer-based testing and item banking. Certain FastTest services may be provided to you free-of-charge. Other FastTest services require payment before you can access them. The FastTest service that does not require paymentis currently referred to as “Free Accounts”. Free Accounts are limited to 1 user and 300 items. Free Accounts have a duration of one year but may be deactivated by Assessment Services Corporation due to six months of user inactivity. FastTest reserves the right to suspend offering Free Accounts at any time. FastTest does not offer support for Free Accounts. To access Support users must upgrade to a paid account.
  3. Term

    1. The Term of this Agreement is given within the MSA or Order Form. If the Term spans several years and the MSA or Order Form specifies annual fees, then fees are due in each year thereof (“Contract Year”) or as otherwise specified.
    2. Subject to the terms of the MSA or Order Form, if applicable, Assessment Systems reserve the right, in its sole discretion, to restrict, suspend, or terminate the Agreement and your access to the Services and/or all or any part of the Site, at any time and for any reason without prior notice or liability in certain events including, but not limited to, default, intellectual property infringement of Assessment Systems or a third party, bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other similar proceeding.
    3. Unless otherwise provided in an MSA or Order Form; at the expiration of the Term, absent a new or extended MSA or Order Form, Assessment Systems may discontinue service at any time with or without notice. In the event that Assessment Systems elects to continue to provide access to the Services and/or all or any part of the Site, the then current rates and fee structure shall apply.
  4. Termination

    1. If you have breached any provision of the Terms, or if Assessment Systems is required to do so by law (e.g., where the provision of the Website, the Application, or the Services is, or becomes, unlawful), Assessment Systems has the right to suspend or terminate any Services provided to you without issuing any full or partial refund. You agree that all terminations for cause shall be made in Assessment Systems’ sole discretion and that Assessment Systems shall not be liable to you or any third-party for any termination of your account. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also may include deletion of your password and all related information, files and content associated with or inside your Account (or any part thereof), including content uploaded to the site by you. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
    2. Either party may terminate an MSA or Order Form if:

      • a) the other party breaches any material term or condition and fails to cure within thirty (30) days written notice; or
      • b) the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership.
    3. In the event of non-payment by the Customer, Assessment Systems may accelerate and declare all sums due, and become due under this Agreement, immediately payable without notice or demand. All accelerated future payments due under this Agreement shall be discounted to their net present.
    4. If you fail to pay fees when due, then you shall also be liable for all fees due during the term of the MSA or Order Form and any additional expenses (including but not limited to reasonable attorneys' fees and accrued interest) Assessment Systems incurs in collecting such delinquent fees.
    5. In the event of non-payment by the Customer, Assessment Systems reserves the right to restrict access to the Services. Customer agrees that such restrictions do not modify the amounts due under their MSA or Order Form. Assessment Systems further reserves the right to suspend or discontinue support services hereunder (without terminating this Agreement) in the following circumstances:

      • a) your requests for support are overly excessive or duplicative of prior requests for issues that have already been addressed by Assessment Systems;
      • b) your requests relate to the general use of the Services that are addressed via Assessment Systems’ training tools and resources or which a person, using reasonable efforts, can perform after completing the Assessment Systems’ training tools or resources; or
      • c) you act in an abusive or offensive manner toward Assessment Systems’ personnel, or other vendors associated with Assessment System’s delivery of services, including testing centers, or other customers.
    6. Upon termination or expiration of each applicable MSA or Order Form, all obligations and liabilities of the parties under these Terms with respect thereto will terminate, except as follows:

      • a) Assessment Systems will complete processing of any fees received prior to the effective date of termination;
      • b) neither party will be relieved of liability for such party’s breach of any of the provisions of these Terms or the MSA or Order Form; and
      • c) Customer shall be responsible for retrieving its data.
  5. License Grant

    1. Subject to the terms and conditions of this Agreement, during the Term of the applicable MSA or Order Form, Assessment Systems will provide you with a non-exclusive, non-transferable license to access and use the Assessment Systems Services as upgraded from time to time.
    2. You may use the Services only for purposes of performing your internal business operations or your clients’ business operations outsourced to you.
    3. Absent an agreement to the contrary, you may not use the Services in any resale capacity.
    4. Except for the foregoing license, no other rights in the Services are granted to you hereunder, and the Services are and will remain the sole and exclusive property of Assessment Systems and its licensors, if any, whether the Services are separate or integrated with any other products, services or deliverables.
  6. Responsibilities of Parties

    1. You are responsible for any use of the Services, including without limitation for any data, materials and content (including the adequacy and accuracy thereof) uploaded to or transmitted using the Services by you or your employees or agents. Even though Assessment Systems maintains redundant servers, you are responsible for the backup of your data used in conjunction with the Services.
    2. Customer represents and warrants that all data, materials and content (“ Customer Data ”) it provides for use with the Services is owned by Customer or Customer has the right to provide such Customer Data to Assessment Systems for use with the Services. Customer also represents and warrants that any use or transmission of Customer Data does not and shall not violate or infringe the intellectual property, privacy or publicity rights of any third party, and Customer shall defend, indemnify and hold Assessment Systems harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Assessment Systems or which are agreed by Assessment Systems to be paid by way of settlement or compromise, arising out of any third-party claim due to a breach of the foregoing representations and warranties or any violation of applicable law by Customer. Customer shall not be entitled to settle or compromise any such claim made against Assessment Systems without Assessment Systems’ prior written consent, such consent not to be unreasonably withheld.
    3. Assessment Systems provides optional configurable integrations with various external applications.Assessment Systems is not responsible for any misconfiguration, data corruption or data loss in any external application resulting from the use of such integrations.
    4. Assessment Systems will assign you one or more user IDs and passwords that will enable you to access the Services. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords, and You are solely responsible for any losses arising from another party’s use of such IDs and passwords, either with or without your knowledge.
    5. You agree that you will use the Services only for lawful purposes and in accordance with these Terms of Use. You shall not reverse engineer, disassemble or decompile the Services or cause or permit the reverse engineering, disassembly or decompilation of the Services. Assessment Systems and Customer will each comply with applicable laws and regulations including applicable security breach notifications laws, provided that Assessment Systems is not responsible for compliance with laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology service providers.
    6. No joint venture, partnership, employment, agency or similar arrangement is created between the Assessment Systems and Customer. Neither party has the right or power to act for or on behalf of the other or to bind the other in any respect other than as expressly provided for in these Terms of Use.
    7. Support is available Monday through Friday, 8:00 am to 5:00 p.m. Central Standard Time, excluding all major U.S. holidays.
    8. Customer will be first line of Support for their candidates excluding Technical Support issues.
    9. Support is given at the discretion of Assessment Systems and may be purchased by Customer at a per hour rate.
    10. Scheduling of candidates in the Network must be completed by 5:00 p.m. Central Standard Time, six (6) business days prior to the scheduled exam excluding all major U.S. holidays. Based on availability, should an exam be scheduled within the six business days, a fee will apply. All risk associated with exams scheduled within six business days falls on the Client.
    11. Scheduling of candidates using live remote proctoring must be completed no sooner than 48 hours of when testing is to take place. Based on availability, should an exam be scheduled within the 48 hours, a fee will apply. All risk associated with exams scheduled within 48 hours falls on the Customer.
    12. Assessment Systems’ Network relationship is owned and maintained by Assessment Systems. Any requests to add testing sites to the Network will be vetted by Assessment Systems and added at the discretion of the Assessment Systems.
    13. Test Sites in the Network are not wholly owned and operated by Assessment Systems, but have a relationship of that of vendor/vendee. Test Sites within the Network manage their specific site (i.e. own hours of operation, accommodation requests).
    14. Assessment Systems maintains the right to alter the system for maintenance. Customer will have access to notification website of all upgrades, availability and releases.
    15. Assessment Systems is SaaS only unless otherwise stated in the Agreement.
    16. Assessment Systems reserves the right to audit a Workspace at any time.
  7. Confidentiality

    1. Each party receiving Confidential Information hereunder (“Recipient”) agrees that:

      • a) it will treat all Confidential Information of the other party with the same degree of care as such Recipient accords to its own Confidential Information, but in no case less than reasonable care; and
      • b) it will not use, disseminate, or disclose to third parties any Confidential Information of the disclosing party (“Discloser”), except for the purpose of providing the Services, and for any other purpose Discloser may authorize, including but not limited to Assessment Systems’ use of Customer data for research and as stated in the provisions of this Agreement.
    2. For purposes of this Agreement, “ Confidential Information ” means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any Customer Data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. The terms and conditions of any order for Assessment Systems products or services shall be deemed the Confidential Information of both Assessment Systems and Customer.
    3. Recipient will have no obligation with respect to any portion of the Confidential Information which:

      • a) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public;
      • b) was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure;
      • c) is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure;
      • d) is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or
      • e) is disclosed with the prior written consent of Discloser.
    4. Recipient may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives Discloser reasonable advance notice sufficient to contest such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.
  8. Ownership and Use of Data

    1. Customer grants Assessment Systems a limited, non-exclusive right to use the Customer Data (including copyright, trademark, patent, publicity or other rights) and to disclose Customer Data to third party service providers for Assessment Systems to operate the Services. Customer also grants Assessment Systems permission to use Customer data for purposes of advertising and promoting Assessment, including without limitation, marketing, training, research, or investment materials.
    2. Customer retains any and all rights it may possess to Customer Data provided by Customer to Assessment Systems through the Services or collected from others by Assessment Systems on behalf of Customer. Such Customer Data will only be used by Assessment Systems as reasonably required for providing Services as contemplated hereunder and in accordance with Assessment Systems’ Privacy Policy http://app.fasttestweb.com/ftw/pr/9999/14/doc/privacy-policy.pdf and all applicable data privacy laws and regulations laws (collectively, “Data Privacy Policy and Rules”). Both Assessment Systems and Customer will comply in all material respects with the Data Privacy Policy and Rules, and will provide such help and cooperation as is reasonably necessary or requested to the other to comply with the same.
    3. Absent your permission, Assessment Systems will not disclose or share personally identifiable information collected on the Site with any third party (except as required by law, pursuant to a governmental request, or for the purposes of providing you the Services).
    4. Assessment Systems may retain offline copies of Customer data on backup media for archival purposes for a reasonable period of time following expiration or termination of any MSA or Order Form.
    5. In the event of a breach of any of the Provider’s security obligations, or other event requiring notification under applicable law, the Provider agrees to:

      • a) Notify Workspace Administrator(s) by telephone or e-mail of such an event within 24 hours of determination that a breach has occurred, unless prohibited by law; and
      • b) Assume responsibility for informing all affected individuals in accordance with applicable law.
  9. No "Spamming" or Illegal Conduct or other Prohibited Uses

    1. You will not use the Services in any manner which exceeds the scope of your license under Section 5 (License Grant) of these Terms, or which violates your obligations under Section 6 (Responsibilities of Parties) of these Terms, or for illegal activities or junk mail, chain letters, pyramid schemes, “spam” or distribution to any person who has not given specific permission to be included in such a process (all the foregoing “ Prohibited Uses ”). Without limiting the generality of the foregoing, you are required to comply with the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“ CAN-SPAM Act ”), and the rules and regulations promulgated thereunder.
    2. If you use the Services for any Prohibited Uses, Assessment Systems may immediately suspend or terminate your access to the Services. Assessment Systems reserves the right to base its findings with respect to spam and related analysis and decisions on, among other things, received complaints, observed email patterns, including rates of delivery and email percentage of emails sent reported as being read by Assessment Systems’ application. Assessment Systems may also take any self-help remedies necessary to prevent continued Prohibited Uses, including, but not limited to, deleting the contact information from your address book on behalf of those individuals who lodge complaints with Assessment Systems or Assessment Systems’ web-hosting company. You are still responsible for full payment of your MSA or Order Form even if your access to the Services is terminated for spamming or other Prohibited Uses.
    3. If you are under 18, you may use the Services only with the involvement of a parent or guardian.
    4. Customer shall, in a timely manner, provide complete and quality information, data services and materials necessary for the performance of the Services. Assessment Systems will not be held liable if the Customer does not provide information requested to perform the Services.
  10. Warranties

    1. THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ASSESSMENT SYSTEMS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, CORRESPONDENCE TO DESCRIPTION, FITNESS FOR A PARTICULAR PURPOSE.
    2. ASSESSMENT SYSTEMS DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
  11. Limitation of Liability

    1. Assessment Systems’ liability to you, your affiliates, registered agents, assignees, registrants or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorneys’ fees or costs arising under this Agreement including any MSA(s) or Order Form(s) shall be limited to the amount of your actual direct damages, not to exceed (in the aggregate for all claims) the total annual amount paid under the Agreement during its then-current Contract Year at the time of the incident giving rise to liability. If no fee is paid to Assessment Systems, Assessment Systems does not retain any liability.
    2. IN NO EVENT WILL ASSESSMENT SYSTEMS OR ANY PERSON OR ENTITY INVOLVED IN THE CREATION, MANUFACTURE OR DISTRIBUTION OF ANY SOFTWARE, SERVICES OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT BE LIABLE OR INDEMNIFY YOU FOR:

      • a) ANY DAMAGES CAUSED BY YOUR FAILURE OR THAT OF YOUR CLIENTS, INVITEES, EMPLOYEES, AGENTS, AFFILIATES OR SUPPLIERS TO PERFORM THEIR RESPONSIBILITIES;
      • b) ANY CLAIMS OR DEMANDS OF THIRD PARTIES; OR
      • c) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, COST OF COVER, LOSS OF USE, LOSS OF DATA, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SITE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF ASSESSMENT SYSTEMS OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.
  12. SENSITIVE PERSONAL INFORMATION:

    1. Notwithstanding any provision to the contrary in this Agreement, you acknowledge and agree that use of the Services to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Services and therefore you shall be solely responsible for any such use of the Services by yourself or your employees, agents or subcontractors and Assessment Systems shall bear no risk or liability for same.
    2. “Sensitive Personal Information” shall be defined as:

      • a) social security numbers;
      • b) passport numbers or other government issued I.D. numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body;
      • c) health or medical information (other than food allergies or medical contact information);
      • d) financial account information (other than payment information entered securely using Assessment Systems’ online payments module); and
      • e) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, email address, and phone number).
  13. Laws and Disputes

    1. This Agreement will be governed by the laws of the State of Minnesota, USA applicable to contracts made and performed wholly within Minnesota without regard to any conflict of law principles.
    2. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties agree to the sole and exclusive venue of the state and federal courts encompassing Hennepin County, Minnesota for all matters arising with respect to the Services or this Agreement between the parties. The parties waive their right to a jury trial.
  14. Notice

    1. Any notice pursuant to this Agreement shall be in writing and shall be deemed to have been duly given: (i) five (5) business days after the date of mailing if sent by registered or certified mail, postage prepaid, with return receipt requested; (ii) when delivered if delivered personally or sent by express courier service; (iii) when transmitted if sent by a confirmed facsimile; or (iv) when transmitted via email, provided that the receiving party acknowledges receipt by return email, and that the email clearly states in the subject line that it is intended to give notice under this Agreement.
  15. Non-solicitation

    1. You agree that you, your organization and affiliates, will not attempt to hire, or assist in hiring anyone currently employed by Assessment Systems, except insofar as such recruitment results from a general solicitation of employment not specifically directed towards employees or subcontractors of Assessment Systems. You further agree that should such a situation occur, Assessment Systems would be caused irreparable harm and be entitled to injunctive relief.
  16. Proprietary Rights

    1. Existing or Independently Developed IP. Each party will retain all IP Rights in the IP that is owned by it or developed by it prior to the date of this Agreement, or acquired or developed after the date of this Agreement without reference to or use of the IP of the other party. No rights or licenses will be deemed to have been granted by either party to any of its IP, except as otherwise expressly provided in this Agreement or any Addendum hereto. Except as may be expressly authorized by this Agreement or an Addendum, neither party shall (a) assign, license, sell, loan, lease, copy or otherwise transfer in whole or in part; (b) modify, reuse, reverse engineer, decompile or disassemble; and (c) allow or aid any third party to use the IP of the other party.
    2. New IP. Customer shall be the sole owner of all New IP test content, test response data, and information relating to test takers stored in the Application Services, which is provided by Assessment Systems (but not the software application itself). Assessment Systems shall own all IP related to the software application, including but not limited to, computer programs, software libraries, database structure, system ID’s, documentation, designs, artifacts, and methods. The foregoing software application is NOT part of the license or assignment in this Agreement. Any software developed by Assessment Systems, whether pursuant to this Agreement, or otherwise, shall be and remain the property of Assessment Systems.
    3. Return of IP. During the Term, both parties will share Intellectual Property with the other party. Upon written request of the disclosing party, Intellectual Property of the disclosing party shall be returned, or destroyed with written confirmation of the same, by the receiving party, within ten (10) business days.
    4. IP License. Each party of this Agreement grants (“Granting Party”) a limited, non-exclusive, non-transferrable, revocable license to use its name and logo, and explicitly specified copyright and trademarks granted with written permission by Granting Party (hereinafter “Copyrights”) to the other party (“Receiving Party”) for use on its website and marketing materials including creating a hyperlink to the Granting Party’s website. Use of Copyrights is limited to the Client identifying products and services purchased from Assessment Systems, and Assessment Systems indicating products and services delivered to Customer. Neither party may use the Copyrights to portray the Granting Party, its affiliates or their respective products and/or services in a false, misleading, derogatory or otherwise offensive manner, nor represent the Granting Party’s’ Copyrights as their own in anyway. Furthermore, upon written notice of the Granting Party revoking the Receiving Party’s license to use the Granting Party’s Copyrights, receiving Party shall remove and not subsequently use any Copyrights owned by Granting Party, and will immediately destroy all advertising matter, computer displays, on-line matter, hyperlinks, printed matter and any and all other matter in any format in its possession or under its control containing any Copyrights owned by the Granting Party.
    5. DMCA. Assessment Systems complies with the Digital Millennium Copyright Act (“DMCA”).

      To provide notice of claimed infringement, email support@assess.com alleging that certain content (specify content) on the Site violates your intellectual property rights.

      If you have a good faith belief that you received a notice under the DMCA as a result of a mistake or misidentification, you may consider submitting a counter notice. Assessment Systems accepts counter notices submitted in response to copyright takedowns only.

      You may submit a counter notice by replying to email Assessment Systems sent informing you of the copyright infringement notice and takedown.

      Once Assessment Systems confirms that the counter notice includes all of the information required by the DMCA, Assessment Systems emails both parties: the member submitting the counter notice and the party who submitted the initial infringement claim. Assessment Systems provides a copy of the counter notice to the party who submitted the initial infringement claim, who may use the information to obtain a court order to restrain you from reactivating the material.

      If, within 10 business days of receipt of your counter notice, the party who submitted the initial copyright claim doesn't inform us of an action seeking a court order against you, the material specified in the counter notice may be reactivated. Reactivating the material before this time may result in account termination.

      This information is not legal advice. You are responsible for any use of this information. If you have any questions or concerns, please consult an attorney. You may also consider communicating directly with the party who filed the initial infringement claim.

  17. Assignment

    1. Except for assignment to a party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other party, neither party may assign or otherwise transfer any right or obligation set forth in the Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed.
    2. Notwithstanding the foregoing, Assessment Systems may subcontract the provision of Services in whole or in part to an Assessment Systems affiliate. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  18. Entire Agreement; Severability; Waiver

    1. This Agreement supersedes any prior agreement or understanding between the parties whether oral or written in relation to its subject matter.
    2. This Agreement may only be modified by a written amendment signed by authorized representatives of each party, except for additional purchases or error corrections under an active Order Form, which may be transacted or mutually accepted via email.
    3. Any additional or conflicting terms contained in any Customer purchase order, proposal or other document shall be deemed to be rejected by Assessment Systems without need of further notice of objection, even if such document is acknowledged or accepted by Assessment Systems, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Assessment Systems.
    4. The provisions of this Agreement shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Assessment Systems’ failure to exercise or enforce any right, power or remedy under this Agreement shall not operate as a waiver thereof.
  19. Force Majeure

    1. Assessment Systems will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, DistributedDenialofService, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by Customer, its employees, agents, or contractors.
    2. The parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of this Agreement.Assessment Systems is not liable for excusable delay.
  20. Legal Fees

    1. Assessment Systems shall be entitled to recover reasonable attorney’s fees in the event Assessment Systems is the prevailing party in any legal action to enforce or interpret this Agreement.
  21. Changes to Website, Terms of Use

    1. Assessment Systems reserves the right to add or change these Terms. Any changes will be posted to this page and it is your responsibility as a user to ensure that you are aware of any such changes from time to time.
  22. Third Party Website

    1. Any links provided to third party websites, or information supplied about third parties (third party information) on Assessment Systems’ websites are supplied as a convenience. Linked sites are not under the control of Assessment Systems; and Assessment Systems is not responsible for any third party linked sites, the contents of such sites, any use of the same, or for third party information. The inclusion of a link or third party information does not imply endorsement by Assessment Systems of the linked site or third party information, any organization or person associated with the linked site or third party information, or any products or services offered or marketed through the linked site or by the third party.
  23. Non-exclusivity

    1. Assessment Systems may contract for similar services to be performed for other customers while under contract with Client provided that doing so will not cause Provider to violate the terms of this Agreement.
  24. No Third Party Beneficiaries

    1. This Agreement is not intended to, and does not confer any rights, benefits or remedies upon any person other than the parties.
  25. Should you want to opt out of email and/or phone messaging from Assessment Systems, send an email to support@assess.com with your request.