END USER LICENSE AGREEMENT FOR EXAMSOFT WORLDWIDE LLC
Effective Date: May 18, 2021
This End User License Agreement (“Agreement”) is a legal agreement between you, the end user (“you” or the “Exam Taker”) and ExamSoft Worldwide LLC., a Delaware limited liability company, its respective subsidiaries, affiliates, agents, employees, employers, business partners, shareholders, predecessors in interest, successors, and assigns (“ExamSoft”) concerning your limited use of certain ExamSoft software application(s) and related online or electronic user documentation (collectively, the “SOFTWARE”). This Agreement affects your rights, including how all disputes between us will be resolved, and you should read it carefully. We encourage you to retain a copy of this Agreement for your reference.
By installing, or otherwise using the SOFTWARE, you agree to be bound by the terms of this Agreement, INCLUDING ITS ARBITRATION AND CLASS ACTION WAIVER PROVISION. If you do not agree to the terms of this agreement, do not install, or use the SOFTWARE and you should exit now. if you do agree, please indicate your CONSENT to this Agreement by CLICKING THE “I AGREE” BUTTON BELOW.
- GRANT OF LICENSE:
Unless otherwise agreed to in writing, ExamSoft hereby grants Exam Taker the non-exclusive, non-transferable right to use the SOFTWARE on a single computer until the expiration date, which will be displayed on the SOFTWARE’S start window following the registration. Use of the SOFTWARE begins when it is loaded into temporary memory or installed into permanent memory.
During the term of this Agreement, Exam Taker is entitled to any version-specific upgrades to the SOFTWARE. Full version upgrades may be provided to Exam Taker at the sole discretion of ExamSoft.
- PROPRIETARY RIGHTS:
Copyright. All title and copyrights in and to the SOFTWARE (including, without limitation, any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the SOFTWARE), the accompanying media and printed materials, and any copies of the SOFTWARE are owned by ExamSoft or its Licensors. The SOFTWARE is protected by copyright laws and international treaty provisions. Therefore, Exam Taker must treat the SOFTWARE like any other copyrighted material, subject to the provisions of this Agreement.
Other Intellectual Property Rights. No license, right, title, or interest in any ExamSoft trademark, service mark, trade name, trade dress, patent, or design patent is granted under this Agreement. Exam Taker shall not remove, alter, obliterate or cancel from view any copyright, trademark, patent or other proprietary rights notice appearing on or embedded in the SOFTWARE.
- NON-PERMITTED USES:
Unless enforcement of this provision is prohibited by applicable law, Exam Taker shall not modify, decompile, imitate, copy, emulate, translate, disassemble, decrypt, extract, or otherwise reverse engineer or attempt to reverse engineer the SOFTWARE or attempt to create derivative works or disable any of the SOFTWARE’s licensing or control features. Exam Taker shall not attempt to circumvent, defeat, or disable any security feature of the SOFTWARE. Exam Taker shall not introduce any programs that contain viruses, worms, and/or Trojan horses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of the SOFTWARE or any of ExamSoft’s hosted applications/services. Exam Taker shall not use SOFTWARE in a ‘Virtual Machine’ environment (e.g. Virtual PC and VM Ware). Exam Taker is permitted to install and use the SOFTWARE on a dual-boot computer; however, Exam Taker must utilize the SOFTWARE on a single operating system. Exam Taker shall not re-boot the dual-boot computer to any operating system other than the operating system supporting the SOFTWARE at any time during the administration of any exam. Exam Taker shall not probe, scan, penetrate, or test the vulnerability of the SOFTWARE or any of ExamSoft’s hosted applications/services. Exam Taker shall also not breach or attempt to breach the SOFTWARE’S security or authentication measures, or any of ExamSoft’s hosted applications/services, whether actively or passively. Exam Taker may not allow concurrent use of the SOFTWARE or allow access to another person. Rights granted to Exam Taker may not be transferred, rented, or leased to others, nor may the Exam Taker grant a security interest in such rights to another. Exam Taker shall not impersonate or misrepresent ExamSoft, an ExamSoft employee, another exam taker, or any other person or entity (including without limitation, by using email addresses associated with any of the foregoing).
- NO WARRANTY:
THIS SOFTWARE AND ANY ACCOMPANYING FILES ARE LICENSED TO EXAM TAKER “AS IS” AND WITH ALL FAULTS. EXAMSOFT AND ITS LICENSORS DO NOT AND CANNOT WARRANT THE PERFORMANCE OF THE SOFTWARE OR RESULTS EXAM TAKER MAY OBTAIN USING THE SOFTWARE OR ACCOMPANYING FILES. EXAMSOFT AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. MOREOVER, EXAMSOFT AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY ISSUES ASSOCIATED WITH POST-EXAM ANSWER PROCESSING OR HANDLING, INCLUDING ANY IMPACT ON EXAM RESULTS.
- 6. LIMITATION OF LIABILITY:
EXAM TAKER’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE A DOLLAR AMOUNT UP TO THAT PORTION OF THE EXAM ADMINISTRATOR’S LICENSE FEE THAT RELATES DIRECTLY TO THE EXAM TAKER’S SOFTWARE LICENSE. OTHER THAN AS DESCRIBED IN THIS AGREEMENT, IN NO EVENT SHALL EXAMSOFT BE LIABLE FOR ANY CLAIM FOR STATUTORY, UNFAIR TRADE PRACTICES, OR ACTUAL OR DIRECT DAMAGES WHATSOEVER RELATED TO THE USE OF THE SOFTWARE, THE INABILITY TO USE THE SOFTWARE OR ANY OTHER CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, NEGLIGENT MISREPRESENTATION, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, UNFAIR BUSINESS PRACTICES, BREACH OF CONTRACT, OR UNJUST ENRICHMENT. FURTHER, TO THE EXTENT PERMITTED BY LAW, EXAMSOFT SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO THE USE OF THE SOFTWARE, THE INABILITY TO USE THE SOFTWARE OR ANY OTHER CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY CLAIM FOR NEGLIGENCE, NEGLIGENT MISREPRESENTATION, UNFAIR BUSINESS PRACTICES, BREACH OF CONTRACT, OR UNJUST ENRICHMENT.
- COMPLIANCE WITH INSTRUCTIONS:
Exam Taker agrees that the computer and operating system onto which the SOFTWARE is to be installed complies with the minimum system requirements available at https://examsoft.com/resources/examplify-minimum-system-requirements for the SOFTWARE. Exam Taker further agrees to follow and perform all installation and use procedures in accordance with the instructions included with the SOFTWARE or provided by the exam administrator. ExamSoft reserves the right to update the version of the SOFTWARE available for use by Exam Taker at any time, including automatically updating Exam Taker’s installed version of the SOFTWARE.
Photographs, Biometric Information, and video and audio recordings are retained by ExamSoft for up to one year after your last interaction with the SOFTWARE with the administrator of the exam, or as otherwise required by law, after which they are deleted. However, at any time, the exam administrator may request that we delete your Biometric Information, photographs, recordings, or other personal information, on your or their behalf, and we will do so as permitted by law.
Other than the license granted to Exam Taker in this Agreement, which permits Exam Taker certain limited use of the SOFTWARE, there is no relationship or contract between ExamSoft and the Exam Taker. ExamSoft has no responsibility whatsoever to Exam Taker with regard to any exams or exam results, and all inquiries regarding the exam and exam results should be directed to the administrator of the exam. Exam Taker agrees that ExamSoft shall have no obligation to provide Exam Taker with any information concerning the SOFTWARE or any particular exam or exam answer.
Without prejudice to any other rights, ExamSoft may terminate this agreement if Exam Taker fails to comply with the terms and conditions of this Agreement. In such event, Exam Taker must destroy all copies of the SOFTWARE and all of its component parts, and ExamSoft may suspend or deactivate Exam Taker’s use of the SOFTWARE without notice. ExamSoft shall report any activities of Exam Taker giving rise to the termination of Exam Taker’s use of SOFTWARE to the respective exam administration authorities.
- GOVERNING LAW:
Except as otherwise provided, any claim, demand, dispute or controversy of any kind or nature between the parties arising out of or relating to this Agreement, its construction, interpretation, performance or alleged breach (any “Claim”) shall be governed by, and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules.
- ARBITRATION AGREEMENT and CLASS ACTION WAIVER:
(a) ExamSoft and you agree to arbitrate all disputes and claims between us before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted. It applies, without limitation, to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory;
- claims that arose before this or any prior version of this Agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of this Agreement.
If a court decides that applicable law precludes enforcement of the waiver of class or representative proceedings as to a particular claim or request for relief, then that claim or request (and only that claim or request) must be severed from the arbitration and may be brought in court.
Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement and class action waiver does not preclude your bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and ExamSoft are each waiving the right to a trial by jury or to participate in a class action. The terms of this Agreement evidence a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision. This arbitration and class action waiver provision will survive termination of this Agreement
(b) A party who intends to seek arbitration must first send a written Notice of Dispute (“Notice”) to the other party. A Notice to ExamSoft should be addressed to 5001 LBJ Freeway, Suite 700, Dallas, TX 75244, USA, Attention: General Counsel. The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). If ExamSoft and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or ExamSoft may commence an arbitration proceeding.
(c) After ExamSoft receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $75,000. The arbitration will be governed by the Consumer Arbitration Rules (the “AAA Rules”) of the American Arbitration Association, as modified by the terms of this Agreement, for all claims under $75,000 and the applicable rules as determined by the AAA for all claims of or above $75,000, and will be administered by the AAA. The AAA Rules are available online at www.adr.org. The arbitrator is bound by these the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope, enforceability, and interpretation of the arbitration and class action waiver provision and the scope, enforceability, and interpretation of paragraph (d) are for the court to decide. The parties agree that in any arbitration of a dispute or claim, neither party will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which ExamSoft was a party. Except as otherwise provided for herein, ExamSoft will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse ExamSoft for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek relief valued at more than $75,000 (excluding attorney’s fees and expenses), the payment of these fees will be governed by the AAA rules.
(d) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EXAMSOFT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. Further, unless both you and ExamSoft agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award any relief that a court could award that is individualized to the claimant and would not affect other customers. Neither you nor we may seek non-individualized relief that would affect other customers. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or request for relief, then that claim or request (and only that claim or request) must be severed from the arbitration and may be brought in court.
(e) Notwithstanding any provision in this Agreement to the contrary, we agree that if we make any future change to this arbitration and class action waiver provision (other than a change to any notice address, website link or telephone number provided herein), that change will not apply to any dispute of which we had written notice on the effective date of the change. Moreover, if we seek to terminate this arbitration and class action waiver provision, any such termination will not be effective until at least thirty (30) days after written notice of such termination is provided to you, and shall not be effective as to disputes which arose prior to the date of termination.
In the event that any provision of this Agreement is deemed unenforceable, invalid, or void, such provision shall be modified as little as possible to make it valid and enforceable, and the remainder of the Agreement shall remain in full force and effect.
End User License Agreement (v3.0 2021)