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Terms of Use

Updated: September 5, 2018

These “Terms of Use” or “Terms” describes the terms under which Assessment Systems Corporation (“Assessment Systems”) offers Customers (defined below) access to its services through the Assessment Systems website and its related applications including, but not limited to, Certifior™ and FastTest™ software and services (the “Site”) and shall govern all Order Form(s) (defined below) entered into between Assessment Systems and its’ Customers (each a “Party” and collectively the “Parties”) with respect to such Service.

Assessment Systems expressly limits acceptance to the terms and conditions set forth in these Terms of Use and the applicable Order Form. Any terms and conditions contained in a purchase order, request for proposal, order acceptance or similar document from Customer shall not constitute a part of the contract of sale between the Parties unless such terms and conditions are specifically incorporated in the applicable Order Form. Customer’s registration for, or use of, the Service shall constitute acceptance on the terms and conditions set forth in these Terms of Use and any additional or different terms proposed by Customer are hereby rejected.

Use of the Site is subject to all terms and policies posted on the Site. By accessing the Site or any content found on the Site, all Users and Customers agree to comply with and to be bound by the Terms set out below, including the policies and guidelines linked to (by way of reference or the provided URLs) from these Terms. Users who do not understand or agree with these Terms, should not use the Site or the Services (as defined below).

No User may access the Site or the Services if their business competes with Assessment Systems, except with Assessment Systems’ prior written consent.

    1. Definitions

      1. In these Terms of Use, the following words shall have the following meanings:

        Admin Users means any person that uses the Software (defined below) to manage, monitor and report on Assessments and/or candidates.

        Business Day means every day excluding Saturdays, Sundays and any national holidays throughout the United States unless otherwise defined in the Order Form.

        Consulting Services means the consulting and/or training services provided by Assessment Systems to Customer and can include, but is not limited to, psychometric services, credentialing services, business planning services.

        Customer means the person and/or entity that has entered into this Agreement to use the Site and/or Services.

        Customer Data means the data, information and material provided or submitted by the Customer or candidates in the creation, participation or reporting of assessments as well as any output of the assessments. Customer Data shall expressly not include the software, scripts, documentation and templates that are provided by Assessment Systems.

        Emergency Maintenance means maintenance that is required and cannot reasonably be postponed until the next Scheduled Maintenance period.

        Fees means the monetary sums payable by the Customer to Assessment Systems in consideration of the Software and Support, together with sums payable in consideration of Test Credits and/or Consulting Services, if purchased, as more particularly described on the Order Form.

        Force Majeure Event means any act, event, omission or accident beyond the reasonable control of either party including, but not limited to, acts of God, extreme adverse weather conditions, natural disaster, war, threat of or preparation for war, armed conflict, terrorist attack, civil war, civil commotion or riots, nuclear, chemical or biological contamination, compliance with any newly enacted law, regulation or directive, fire, flood, earthquake, explosion or accidental damage, any labor dispute, including (but not limited to) strikes, industrial action or lockouts, denial of service attacks, viruses, non-performance by suppliers or subcontractors, interruption or failure of utility or transport service and the unavailability of labor or materials to the extent beyond the control of Assessment Systems.

        Initial Term means the initial period specified in the Order Form which shall start on the Term Effective Date (defined below).

        Intellectual Property or IP means 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 secrets; (d) databases, reports, data compilations and collections, analyses and technical data; (e) trademarks; and/or (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 Assessment Systems (or a permitted subcontractor) in the performance of the Services.

        Order Form means the written quotation for Services and their associated pricing provided by Assessment Systems, which has been accepted by the Customer, as such Order Form may be amended from time-to-time by mutual written agreement of the Parties.

        Renewal Fees means the Fees payable in respect of each Renewal Term.

        Renewal Term means the period of time specified in the Order Form for which the Agreement may, at Assessment Systems’ sole discretion, automatically renew following the end of the Initial Term or a Renewal Term which shall run from the end of the Initial Term or the then current Renewal Term unless this Agreement is terminated in accordance with Article 5.

        Scheduled Maintenance means maintenance that may interrupt Services that is planned in order to add features, resolve issues and/or enhance functionalities. Scheduled Maintenance occurs every Sunday from 8:00 a.m. until 12:00 p.m. United States Central Time and may also occur at any time Assessment Systems provides notice of such Scheduled Maintenance to Customer.

        Services means the services provided by Assessment Systems to Customer, including (but not limited to) those relating to the Software (defined below) and Support, and, if selected by Customer, Consulting Services. The Services selected shall be more particularly described in the Order Form.

        Software means the FastTest™ and/or Certifior™ software applications, including any customized versions, future releases, and upgrades, and all the “Application Services” specified as included on the Order Form.

        Sub-Workspace means a workspace beneath the parent Workspace (defined below), which controls a sub-set of Users’ access, and allows certain content and business rules to be controlled by Users of the parent Workspace.

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

        Support means the assistance delivered by Assessment Systems, which encompasses both Training Support (defined below) and Technical Support (defined below).

        Term means the Initial Term together with any Renewal Term.

        Term Effective Date means the “Term effective date” set out in the Order Form.

        Test Credits means a prepaid credit for use in denominating the cost of assessments. Test Credits are non-refundable, bear no cash value, and do not expire as long as the Customer’s Admin User’s account remains active. Test Credits are purchased according to the schedule contained in the Order Form.

        Testing Network means all of the brick and mortar test centers and test sites that have an agreement with Assessment Systems and/or its approved partner network to provide test center services.

        Unscheduled Downtime means the unavailability of the Software for any reason except Scheduled Maintenance, Emergency Maintenance and a Force Majeure Event. The unavailability of the service due to Customer actions, Customer requests, or some specific functions that are not material to the Software will not constitute unavailability.

        User means any person or entity that uses or accesses the Site and/or Services.

        Working Hours means the hours between 8:00 a.m. to 5:00 p.m. United States Central Time on Business Days unless otherwise defined within the Order Form.

        Workspace means an organizational account in FastTest™ and/or Certifior™ with the purpose of creating a bank of test items, administering examinations, and/or conducting other test related activities.

    2. Assessment Systems’ Obligations

      1. Software License and Authorization. In consideration of, and subject to, payment of the Fees, Assessment Systems hereby grants to the Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable license and authorization to access and use the Software and its upgrades for the Term of this Agreement. All rights not expressly granted to Customer hereunder are reserved by Assessment Systems, its suppliers, and its licensors.

      2. Consulting Services. Following a request for Consulting Services, Assessment Systems shall produce an Order Form which shall be reviewed by Customer and the Parties shall agree the Order Form which, when accepted, shall be the Order Form for such Consulting Services. Customer shall be solely responsible to confirm that the Order Form satisfies the operational needs and requirements of Customer’s business and to identify any necessary modifications to the Order Form. The Consulting Services shall be performed and delivered at the times and places listed in the applicable Order Form. Assessment Systems shall use commercially reasonable efforts to meet the timelines set in the applicable Order Form, but time shall not be of the essence unless otherwise expressly agreed in writing between the Parties, and shall be subject to potential delay by a Force Majeure Event.

      3. Deliverables. In the event an applicable Order Form requires Assessment Systems to develop software, upon the delivery of such newly developed software (each a, “Deliverable”), Customer shall have ten (10) business days to review such software for any material non-conformance with the terms of the Order Form. In the event that Customer does not report any such material non-conformance to Assessment Systems within the ten (10) business day period, Customer will have been deemed to have accepted such Deliverable and Customer waives and releases Assessment Systems from and against any claim, liability, damage, demand, cost and/or expense, or suit arising from or related to such Deliverable developed by Assessment Systems on behalf of Customer other than based on an allegation that such Deliverables violate the intellectual property rights of any third party. In the event the Customer timely identifies a Deliverable to not be in material conformance with the terms of the Order Form, Assessment Systems will remedy such material non-conformance so as to bring it into material compliance with the Order Form. Unless specified otherwise on the Order Form, the Deliverables will not be covered by any warranty and are not subject to receiving any Support.

      4. Assessment Systems Reseller Terms. Notwithstanding the definitions set forth in Section 1, if Customer has purchased the Software from an Assessment Systems reseller, the definition of “Order Form” shall refer to the order between Assessment Systems and such reseller. Assessment Systems shall be obligated to provide the Services only in conformity with such Order Form, including with regard to the Term (defined below) and the Services, regardless of whether the order or other documentation between Customer and such reseller provides different terms. Customer’s sole recourse and remedy for any loss, damage, expense, or other liability caused by such discrepancy shall be solely against such reseller.

    3. Customer Obligations

      1. Services. Customer may use the Software during the Term solely in conformance with the terms of this Agreement and the Services. In the event that Customer exceeds the limitations of the Services, Assessment Systems may charge Customer for any excess use at its current list prices.

      2. Permitted Uses. The Software may only be used to create, deliver and report on assessments, and as may be further defined on the Order Form. Customer may not (i) modify or make derivative works based upon the Services or any associated documentation except as permitted by law; (ii) hide or attempt to hide copyright information or identification of Assessment Systems’ ownership of the Services; or, (iii) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services. In addition, Customer may not access the Services for competitive purposes, including, but not limited to, monitoring availability, performance, functionality, or benchmarking. To ensure compliance with the terms and conditions contained within this Agreement, Assessment Systems reserves the right to audit any Workspace or Sub-Workspace at any time.

      3. Use of Assessments. Customer acknowledges that the Services may be used to correspond with candidates and to assess a candidate’s knowledge, skills and attitudes and allocate a score. Scores should be considered one piece of evidence about a candidate’s knowledge, skill and/or attitude. When the Services are being used to make decisions about a candidate (such as whether to hire, promote, or fire the candidate), Customer is solely responsible for the quality and validation of the assessment and corresponding assessment material, and should review and evaluate the candidate’s score to ensure that the appropriate decision has been made. Customer is solely responsible for its use of the Software, including entering and maintaining the assessment material, validating the assessment, checking this material, checking scores, checking reports, and using the Services fairly.

      4. Acceptable Use and Compliance with Law. Customer shall not use, or attempt to use, the Software in such a way as to exceed the scope of its license, store or transmit anything that is reasonably likely to be offensive, harassing, threatening, abusive, obscene, illegal or defamatory, breaches the rights of any third party, or contains software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs (hereinafter “Prohibited Activities”). Customer shall use the Service in compliance with this Agreement and Assessment Systems’ Privacy Policy available at: https://app.fasttestweb.com/gateway/pr/9999/14/doc/privacy-policy.pdf. Assessment Systems may make reasonable changes to this acceptable use policy from time to time, provided such changes are consistent with good industry practice.

        1. SPAM Prohibited. Customer will not use the Services in any manner which exceeds the scope of its license under these Terms, or which violates the obligations under 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, Users are required to comply with the United States’ Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”), and the rules and regulations promulgated thereunder.

        2. Violation of Acceptable Uses. If the Customer uses the Services for any Prohibited Uses or Prohibited Activities, Assessment Systems may immediately suspend or terminate 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 a User’s address book on behalf of those individuals who lodge complaints with Assessment Systems or Assessment Systems’ webhosting company. The Customer is still responsible for full payment as listed on the Order Form even if access to the Services is terminated for spamming or other Prohibited Uses.

        3. GDPR. Assessment Systems shall be deemed to be a “processor” and Customer a “controller” as such terms are understood and/or defined in data privacy laws with regard to Customer Data or the information passing through the Software. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of use of all Customer Data. Customer shall be solely responsible for ensuring that Customer’s use of the Software and that all information that the Software receives and transmits pursuant to such use complies with all applicable local, state, national, and foreign laws, treaties, and regulations, including, without limitation, any applicable data protection and human rights laws regarding the transmission and processing of personal data. To the extent required by applicable law, Customer shall procure all candidates’ agreement, prior to use of the Software, to transmitting or processing their personal data as necessary for the provision of the Software and the assessment, including troubleshooting and maintenance, which Customer instructs Assessment Systems to undertake as necessary.

      5. Connections to the Software. Customer shall, at its own cost, provide all Internet connections, hardware, software, and all other equipment necessary to use the Services and shall have sole responsibility for the maintenance and upkeep of such items unless otherwise agreed between the Parties.

      6. Third Party Software. To the extent any third-party software license is required to use the Services, Customer undertakes to comply with the End User License Agreement for any software supplied by Assessment Systems under this Agreement and Customer shall ensure that candidates and any other party accessing such software shall be bound by such undertaking.

      7. System Requirements. Customer acknowledges that the Services may only be used via compatible systems and/or compatible browsers.

      8. Cooperation. Customer acknowledges that in the performance of the Services, Assessment Systems may require the disclosure by Customer of certain information, or access to certain of Customer’s computer systems or databases. Customer shall provide Assessment Systems all access reasonably requested to enable Assessment Systems to complete the Services in accordance with the Order Form. Assessment Systems will have no liability for any failure or delay to provide the Services where such failure or delay is caused by or arises from Customer’s failure to provide necessary information or access.

      9. Customer Contact Information. Customer shall provide Assessment Systems with complete and accurate billing and contact information. This information includes Customer’s legal organization name, street address, and the name, e-mail address and telephone number of an authorized billing contact, administrator, and backup administrator Customer shall update this information within thirty (30) days of any change.

      10. Data Backup. The Software includes a function for archiving and exporting assessments, results and other data. Assessment Systems shall not be responsible or liable for Customer’s deletion, correction, destruction, damage, loss, or failure to store any Customer Data including, but not limited to, an event where Customer fails to make regular backups of Customer Data.

    4. Order Form

      1. Incorporated by Reference. These Terms are incorporated by reference into each Order Form or, if applicable, any agreement executed by 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 as upgraded from time to time.

      2. Order Form Terms. These Terms, the Order Form, together comprise a binding written agreement between Customer and Assessment Systems, effective as of the Term Effective Date and mutual execution of the Order Form by Assessment Systems and Customer (this “Agreement”). In the event that no 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.

      3. 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 Customer.

      4. Conflict of Terms. In the event of any conflict between the provisions contained in an Order Form and these Terms of Use, the provisions in the Order Form shall control (provided, however, that the fact that a provision appears in an Order Form but not these Terms of Use, or in these Terms of Use but not the applicable Order Form shall not be deemed to be a conflict for purposes of this sentence).

    5. Fees

      1. Payment Terms. All invoices shall be due and payable by Customer without deduction or set-off, in full and cleared funds and in the currency specified within the Order Form to the account or address designated by Assessment Systems from time to time within twenty-one (21) days net from invoice date.

      2. Late Payments. Late payments will accrue a finance charge of three percent (3%) per month or the maximum rate allowed by law, on any outstanding balance, or the maximum permitted by law, whichever is less, plus all costs of collection.

      3. Special Invoicing Requirements. Assessment Systems may impose a special handling charge of 5% if special invoicing requirements apply, per annum.

      4. Credit and Debit Cards. Except where prohibited by applicable law, if Customer pays any fees due hereunder via credit or debit card, then Assessment Systems reserves the right to charge Customer an additional fee equal to three percent (3%) of the amount charged. If the Order Form references payment by credit card or if the Customer uses a credit card to pay, Assessment Systems may deduct renewal fees or other fees when due from Customer’s credit card. Customer hereby consents to such charges being made against their credit or debit card.

      5. Overages. If Customer exceeds the contracted level of Services during the term of this Agreement, Customer will be charged as specified in Customer’s Order Form, or if not specified, using the then-current rates for the overage.

      6. Taxes. Customer is 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.

      7. Fee Disputes. In the event that Customer disagrees with any charges on its invoice, Customer must send written notification to Assessment Systems within five (5) Business Days of receipt of the first statement that contained such charges to address Customer’s billing inquiries; any invoices not disputed within these five (5) Business Days shall be deemed accepted.

      8. On-site Services. On-site visits are not normally required. When on-site visits are requested by Customer an Order Form will document the Consulting Services required and Customer shall pay Consulting Services Fees including Assessment Systems’ reasonable out of pocket expenses incurred pursuant to such on-site visit including travel, lodging, and charges for other necessary business expenses.

      9. Fees for Data Storage. In certain circumstances, the Customer may incur charges for data storage in excess of what is provided free of charge for test items, results, data, and media files as specified on the applicable Order Form.

      10. Assessment Systems’ Remedies for Non-Payment. Assessment Systems reserves the right to suspend or terminate this Agreement and Customer’s access to the Service when payment has not been received within twenty-one (21) days of the due date. 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. Assessment Systems reserves the right to impose a reconnection fee in the event Customer’s account is suspended or terminated. Assessment Systems has no obligation to retain Customer’s Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account remains delinquent for more than sixty (60) days from date of suspension or termination. Assessment Systems may charge all such unpaid fees to Customer’s credit card or otherwise bill Customer for all such unpaid fees. Customer shall reimburse Assessment Systems for all costs incurred by Assessment Systems in collecting any unpaid balances, late payments, and/or interest, including attorneys’ fees, court costs, and collection agency fees.

      11. Renewal Fees. Assessment Systems reserves the right to change the amount of any Renewal Fees and such changes shall become effective upon the commencement of such Renewal Term and shall apply to all renewals absent an update Order Form specifying otherwise.

      12. Free Accounts. Assessment Systems provides both paid and free services offering computer-based testing and item banking. Certain Services may be provided to Customer free-of-charge (“Free Accounts”). Other Services require payment before Customer can access them (“Paid Accounts”). Free Accounts are limited to one (1) User and three hundred (300) items. Free Accounts have duration of one (1) year but may be deactivated by Assessment Systems due to six (6) months of User inactivity, violation of this Agreement, or for any other commercially reasonable purpose. Assessment Systems reserves the right to suspend or discontinue offering Free Accounts at any time. Assessment Systems does not offer Support for Free Accounts. To access Support Users must upgrade to a paid account.

    6. Term and Termination

      1. Term. The Term of Customer’s license to the Software and Customer’s access to the accompanying level of support services purchased by Customer shall commence on the Term Effective Date and shall continue for the Initial Term of the Agreement. Thereafter, unless otherwise specified on the applicable Order Form, this Agreement and such license and accompanying support services shall, at the option of Assessment Systems as evidenced by continuing to supply the Services, be automatically renewed for additional one (1) year terms at the end of each Term unless the Customer provides written notice of cancellation to Assessment Systems at least sixty (60) days’ prior to the expiration of the Term then in effect. Upon the commencement of each renewal Term, Assessment Systems will issue an invoice to Customer for the Renewal Fee for such renewal term at Assessment Systems’ then current standard Renewal Fee.

      2. Termination. If Customer has 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 Services, is or becomes, unlawful), Assessment Systems has the right to suspend or terminate any Services provided to Customer without issuing any full or partial refund. Customer agrees that all terminations for cause shall be made in Assessment Systems’ sole discretion and that Assessment Systems shall not be liable to Customer or any third-party for any termination of Customer’s 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 Customer’s password and all related information, files and content associated with or inside Customer’s account (or any part thereof), including content uploaded to the site by Customer. 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.

      3. Either party may terminate this Agreement if:

        1. the other party breaches any material term or condition and fails to cure within thirty (30) days written notice; or

        2. the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, liquidation or receivership.

      4. 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.

      5. If Customer fails to pay fees when due, then Customer shall also be liable for all fees due during the term of the 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.

      6. 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 Order Form.

      7. Effect of Termination. Upon termination of this Agreement by Assessment Systems for cause, all fees or charges payable for the entire term of the Agreement shall, without notice or demand by Assessment Systems, immediately become due and payable by Customer to Assessment Systems, and Assessment Systems’ obligations under this Agreement to provide the Services shall end. Assessment Systems reserves the right to withhold access to Customer Data without notice upon any uncured breach, including, without limitation, Customer non-payment. Assessment Systems has no obligation to retain the Customer Data, and may delete such Customer Data. All provisions in this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, confidentiality, non-payment, warranty disclaimers, indemnification, and limitation of liability.

        Upon termination of this Agreement by Customer for any reason, all prepaid fees, Test Credits and other amounts applicable to the unused portion of the Services that are to be provided after the date of termination, if any, will be forfeited by Customer and Assessment Systems’ obligations under this Agreement to provide the Services shall end.

    7. Confidential Information

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

        1. 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,

        2. 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:

        1. is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public;

        2. was acquired by Recipient before receiving such information from Discloser and without restriction as to use or disclosure;

        3. is hereafter rightfully furnished to Recipient by a third party, without restriction as to use or disclosure;

        4. is information that was independently developed by Recipient without reference to Confidential Information received hereunder; or

        5. 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.

      5. Sensitive Personal Information. Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges 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 Customer shall be solely responsible for any such use of the Services by Customer or Customer’s employees, agents or subcontractors and Assessment Systems shall bear no risk or liability for same. “Sensitive Personal Information” shall be defined to include, but not be limited to:

        1. social security numbers,

        2. passport numbers or other government issued I.D. numbers,

        3. date of birth and/or gender, except solely to the extent required by applicable law, and

        4. other information not generally available to the public regarding a candidate or the Customer.

      6. Quality Assurance Purposes. Assessment Systems may collect usage data in connection with Customer’s usage of the Software to understand how Customer uses Software and its features, including, without limitation, for quality assurance and product improvement purposes.

    8. Intellectual Property

      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 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. 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 Customer 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.

      4. 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 intellectual property rights. Users who have a good faith belief that they received a notice under the DMCA as a result of a mistake or misidentification, may consider submitting a counter notice. Assessment Systems accepts counter notices submitted in response to copyright takedowns only. Users may submit a counter notice by replying to email Assessment Systems sent informing them 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 them from reactivating the material.

        If, within ten (10) Business Days of receipt of a counter notice, the party who submitted the initial copyright claim doesn't inform Assessment Systems of an action seeking a court order against them, 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. Users are responsible for any use of this information. If a User has any questions or concerns, they should consult an attorney. Users may also consider communicating directly with the party who filed the initial infringement claim.

    9. Warranties

      1. Mutual Representations. Each Party represents and warrants to the other that (i) the terms of this Agreement do not violate and will not cause a breach of the terms of any other agreement or any applicable law, decree, or regulation to which it is a party or by which it is subject or bound; (ii) that it is, and at all times during the Term of this Agreement shall remain, an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; and, (iii) that this Agreement is, and shall remain, a valid and binding obligation, enforceable in accordance with its terms, as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally.

      2. Assessment Systems Representations. Assessment Systems represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Software will perform substantially in accordance with online documentation provided under normal use and circumstances; (iii) it will comply with applicable local, state, national, and foreign laws, treaties, and regulations in connection with Assessment Systems’ performance under, and compliance with this Agreement; and, (iv) the Software will not infringe upon or violate any intellectual property rights of third parties.

      3. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, AND ASSESSMENT SYSTEMS HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

        Except as expressly provided herein, Assessment Systems, its suppliers, and its licensors do not represent or warrant that the use of the Services will be secure, timely, uninterrupted, or error-free, or operate in combination with any other system or data. In no event shall Assessment Systems be liable or otherwise responsible for any damage to, or loss of, any Customer Data or any third party data provided by Customer, resulting from any cause whatsoever, except to the extent caused by Assessment Systems’ gross negligence or willful misconduct. The Software might be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Although Assessment Systems will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events and except as otherwise expressly provided in Section 11, Assessment Systems disclaims any and all liability or responsibility resulting from or related to such events.

      4. Corrective Action. If Customer’s use of the Service is prevented by injunction for infringement of intellectual property rights of third parties, or if in Assessment Systems’ sole determination such an outcome is likely, Assessment Systems will: (i) modify the Service so that it becomes non-infringing, but of equivalent functionality; (ii) replace the Service with a non-infringing Service of equivalent functionality; or (iii) if neither of the first two (2) alternatives is commercially reasonable, in Assessment Systems’ sole determination, terminate the Service and refund any prepaid fees attributable to such infringing Service paid by Customer.

    10. Indemnity

      1. Customer’s Indemnification. Customer shall indemnify, defend and hold Assessment Systems, its licensors, and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all third party claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) (collectively, “Losses”) to the extent arising out of or in connection with (i) Customer’s use of, or the Customer Data used in connection with, the Services, other than to the extent due to reasons for which Assessment Systems is providing indemnification in Section 9.2; (ii) infringement or misappropriation of a patent, copyright, trademark, or other similar intellectual property right of a third party that results from the combination of the Services with the Customer Data and any other products, services, or business process(s) used, provided, licensed, or owned by Customer; and/or, (iii) Customer’s breach of this Agreement.

      2. Assessment Systems’ Indemnification. Subject to the limitations contained herein, Assessment Systems shall defend and hold Customer and Customer’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against all third party Losses to the extent arising out of or in connection with Assessment Systems’ infringement or misappropriation of a patent, copyright, trademark, or other similar intellectual property right of a third party other than to the extent resulting from the circumstances described in Section 9.1(ii).

      3. Indemnification Procedure. The indemnifying party’s (“Indemnifying Party”) indemnification and hold harmless obligation to the indemnified party (“Indemnified Party”) is expressly conditioned on the following: (i) Indemnifying Party shall be notified in writing promptly of any such claim or demand, provided that the failure to provide prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that such delay adversely impacts the Indemnifying Party; (ii) Indemnifying Party shall have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise; and, that (iii) Indemnified Party shall cooperate with Indemnifying Party in a reasonable way and at Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of their choosing to observe the defense of any such claim. Indemnifying Party may not settle or otherwise dispose of a claim that includes a finding or admission of culpability of, or otherwise materially adversely affects, the Indemnified Party without Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld.

    11. Limitation of Liability

      Except to the extent otherwise contemplated in Section 11, in the event that an assessment does not perform properly due solely to the fault of the Assessment Systems technology, Assessment Systems shall allow the affected candidates to retake the assessment at no additional charge, or, at Assessment Systems’ option refund the Test Credits charged to Customer and this shall be Customer’s sole remedy for Assessment Systems’ non-performance.

      IN NO EVENT SHALL ASSESSMENT SYSTEMS TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM AND IN NO EVENT SHALL ASSESSMENT SYSTEMS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE SERVICES EVEN IF ASSESSMENT SYSTEMS OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

      NOTHING IN THIS AGREEMENT SHALL EXCLUDE EITHER PARTY’S LIABILITY FOR LIABILITY WHICH CANNOT BE PROPERLY EXCLUDED BY LAW.

      ASSESSMENT SYSTEMS SHALL HAVE NO LIABILITY WITH RESPECT TO CUSTOMER’S USE OF THE SERVICES WHERE ASSESSMENT SYSTEMS IS PROVIDING A FREE ACCOUNT.

    12. Support, Maintenance, and Testing Services

      1. Support Generally. Assessment Systems shall provide technical support services in English (unless otherwise specified on the applicable Order Form) to Designated Contacts and candidates. Assessment Systems may also provide free access to Designated Contacts to product and Technical Support information, and online guides. Technical Support is available 24/7. Customer shall serve as the first line of Support for their candidates excluding Technical Support issues. Assessment Systems does not offer Support for Free Accounts and to access Support, Customer must upgrade to a paid account. Unless otherwise specified in the Order Form, Assessment Systems may offer complimentary Support to Customer with a paid account or may bill Customer at the then-current hourly Support rate. Support billing terms shall be governed in accordance with the payment terms contained in Section 5 of this Agreement. Whether the Support provided is on a complimentary or paid basis is at Assessment Systems’ sole discretion and depends on Assessment Systems determining the scope of the Support request.

      2. Designated Contacts. Customer shall notify Assessment Systems of the individuals, up to the limit specified in the applicable Order Form, who will be Customer’s designated contacts for the purpose of requesting support via phone and email (“Designated Contacts”) and of any replacement Designated Contacts within 24 hours of their appointment.

      3. Support Options. Assessment Systems, at its sole discretion, will provide Support to Customer with a paid account in connection with Assessment Systems’ Software through one of the following options and will choose which method of providing Support depending on the circumstances, in particular depending on the type of assistance needed:

        1. Training Support. Training Support” means Support requests involving questions relating to understanding how to navigate and use the Software.

        2. Technical Support. Technical Support” means Support requests involving assistance with issues related to the intended function of the system.

      4. Good Conduct. Assessment Systems reserves the right to suspend or terminate access to the Software and/or Support if:

        1. Customer’s requests for Support are overly excessive or duplicative of prior requests for issues that have already been addressed by Assessment Systems;

        2. Customer’s 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

        3. Customer or Customer’s representatives, employees, agents, or designees, act in an abusive or offensive manner toward Assessment Systems’ personnel, or other vendors associated with Assessment System’s delivery of services, including the Testing Network, or other customers.

      5. Testing Network. Assessment Systems’ Testing Network relationship is owned and maintained by Assessment Systems. Any requests to add testing sites to the Testing Network will be vetted by Assessment Systems and added at the sole discretion of Assessment Systems. Test sites and centers in the Testing Network are not wholly owned and operated by Assessment Systems, but have a relationship of that of vendor/vendee. The test sites and centers within the Testing Network manage their specific site (i.e. own hours of operation, accommodation requests, etc.).

      6. Assessment Scheduling.

        1. Testing Network Scheduling. Scheduling of candidates in the Testing Network must be completed by 5:00 p.m. Central Time, six (6) Business Days prior to the scheduled exam excluding all major United States 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 (6) Business Days falls on the Customer.

        2. Proctoring Scheduling. Scheduling of candidates using live remote proctoring must be completed no sooner than forty-eight (48) hours of when testing is to take place. Based on availability, should an exam be scheduled within the forty-eight (48) hours, a Fee will apply. All risk associated with exams scheduled within forty-eight (48) hours falls on the Customer.

      7. Ongoing Maintenance. Assessment Systems conducts Scheduled Maintenance and Emergency Maintenance. Assessment Systems will use good faith efforts to minimize the duration of and perform any Scheduled Maintenance and Emergency Maintenance during off peak hours.

      8. Basic Remedies. In the event of Unscheduled Downtime, Assessment Systems will provide Customer a Test Credit for the affected candidate(s) who were unable to take the assessment affected by the Unscheduled Downtime.

      9. Changes to Service Offerings. Assessment Systems reserves the right to cease offering Support and/or other Services contained in this Agreement.

    13. Notice

      1. Notice to Customer. Assessment Systems may give notice via the Software, by electronic mail to Customer’s e-mail address on record, or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Assessment Systems’ account information. Such notice shall be deemed to have been given upon two (2) business days after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending by email. Assessment Systems shall have the right to notify Customer in the event of a general notice to all Users of the Software of important announcements regarding the operation of the Service, including by email correspondence, and Customer hereby provides its express consent to such notification, regardless of whether Customer has generally opted out of receipt of notifications from Assessment Systems.

      2. Notice to Assessment Systems. Customer may give notice to Assessment Systems (such notice shall be deemed given when received by Assessment Systems) by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Assessment Systems Corporation, 125 Main Street SE, Suite 135, Minneapolis, Minnesota 55414 United States or other address as notified by Assessment Systems.

    14. Miscellaneous

      1. Assignment. This Agreement may not be assigned by either Party without the prior written approval of the other Party. Notwithstanding the forgoing, Assessment Systems reserves the right to assign this Agreement without the approval of the Customer, to (i) a parent or subsidiary entity, (ii) to subcontractors engaged by Assessment Systems, (iii) an acquirer of assets either in whole or in part, or (iii) a successor by merger. Any purported assignment in violation of this Section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of Assessment Systems directly or indirectly owning or controlling twenty-five percent (25%) or more of Customer shall entitle Assessment Systems to terminate this Agreement for cause immediately upon written notice.

      2. Non-Solicitation. Customer agrees that it, its organization, and its 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 for a period of two (2) years. Customer further agrees that should such a situation occur, Assessment Systems would be caused irreparable harm and be entitled to injunctive relief.

      3. Legal Fees. Assessment Systems shall be entitled to recover reasonable attorney’s fees in the event Assessment Systems is the prevailing party in any legal action between the Parties, including but not limited to enforcing or interpreting this Agreement. Assessment Systems shall be entitled to recover any additional expenses (including but not limited to reasonable attorneys’ fees and accrued interest) Assessment Systems incurs in collecting all delinquent Fees.

      4. Changes to Website, Terms of Use. Assessment Systems reserves the right to add or change these Terms of Use. Any changes will be posted to Assessment Systems’ website and it is the Customer’s responsibility to ensure that it is aware of any such changes from time to time.

      5. Non-Exclusivity. Assessment Systems may contract for similar services to be performed for other customers while under contract with Customer provided that doing so will not cause Assessment Systems to violate the terms of this Agreement.

      6. No Third Party Beneficiaries. This Agreement is not intended to, and does not confer any rights, benefits or remedies upon any person other than the parties.

      7. No Waiver. Failure by either Party to exercise or enforce any right or benefit conferred by this Agreement will not be deemed to be a waiver of any such right or benefit nor operate so as to bar the exercise or enforcement thereof or of any other right or benefit on any later occasion.

      8. Severability. If any provision, or part provision, of this Agreement, is held by a court or any competent authority to be invalid, illegal, or unenforceable, that provision or part provision shall be deemed deleted and the remainder of this Agreement shall continue in full force and effect.

      9. Amendments. No amendment of this Agreement shall be binding on Assessment Systems unless it is in writing and signed by both Parties. Assessment Systems may change the configuration of its network, equipment, or any other item material to the provision of the Services at any time provided that such change does not adversely affect the Services.

      10. Reliance. Customer acknowledges that Assessment Systems has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential part of the bargain between the Parties.

      11. Independent Contractor. The relationship of the Parties is that of independent contractor, and nothing herein shall be construed to create a partnership, joint venture, franchise, employment, or agency relationship between the Parties. Customer shall have no authority to enter into agreements of any kind on behalf of Assessment Systems and shall not have the power or authority to bind or obligate Assessment Systems in any manner to any third party.

      12. Governing Law and Forum. This Agreement shall be governed by Minnesota law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Services shall be subject to the exclusive jurisdiction of the state and or Federal courts located in Minneapolis, Minnesota.

        Should Customer be domiciled in a country outside the United States, Customer will be exclusively liable for any issues triggered by the applicability and/or enforcement of the laws of that country in related in any way to this Agreement. Customer hereby expressly waives any right granted by that country that may confer to Customer any rights different than those specifically contemplated and provided under this Agreement. Customer shall defend and indemnify Assessment Systems against any and all claims related to any claims or additional obligations imposed on Assessment Systems due to the application and/or enforcement of law in non-U.S. jurisdictions.