These Terms and Conditions of Use (the “Terms”) govern the access and use of the test products and content licensed to EmployTest, a Georgia limited liability company, located at 2265 Roswell Road, Suite 100, Marietta, GA 30062 by third party test publishers (the “Test Publishers”) to you (the “Customer”). The Terms may refer to EmployTest or the Customer as a “Party,” or collectively as the“Parties.”
EmployTest is a reseller and distributor of certain testing products and content of Test Publishers (the “Test Products”). Each Test Publisher has agreed to license the Test Products to EmployTest for the limited purpose of resale and use by Customer. Customer’s access to its Online Testing Account (as defined below) and/or use of the Test Products constitutes Customer’s agreement to be bound by these Terms, which establishes a contractual relationship between Customer and EmployTest.
- Test Products. EmployTest shall provide to Customer the following in conjunction with Customer’s purchase of Test Products:
(a) Provide Customer with an Online Testing Account (“Online Testing Account”) to allow for access to the Test Products. (b) Provide Customer with access to the Test Products ordered. (c) Provide any other services determined necessary by EmployTest, in its sole discretion, to accomplish and facilitate the foregoing.
- Customer Representations and Warranties. In order for the Customer to access its Online Testing Account and the Test Products, Customer represents and warrants that Customer: (a) Has the right, authority, and capacity to enter into the Terms and comply with all of the provisions hereunder. (b) Shall maintain accurate, complete, and up-to-date information as to the Online Testing Account or notify EmployTest if account access changes are necessary. (c) (i) Shall be, along with any Authorized User, the only individuals to access the Online Testing Account; (ii) ensure that no other individuals, except Authorized Users, are authorized to use the Online Testing Account; and (iii) contact EmployTest immediately upon discovering or suspecting unauthorized use of the Online Testing Account. “Authorized User” means the Customer and any individual partners members, officers, and employees of the Customer who have been included in Customer’s account as users. (d) Shall maintain the security and secrecy of the Online Testing Account username and password and shall not assign or otherwise transfer Customer’s Online Testing Account to any other person or entity. (e) Shall comply with any and all applicable laws, including but not limited to all privacy and confidentiality laws to which the Customer or any Authorized User would be subject, when using the Online Testing Account and Test Products and will only
use them for lawful purposes. (f) Shall use the Online Testing Account only to meet Customer’s internal business requirements, including testing Customer’s employees or potential job candidates, either locally or remotely, and for performing administrative functions pertaining
thereto, and for no other purpose. (g) Shall ensure that any Authorized User is aware of the Terms and that any Authorized User shall abide by them in all respects and shall be responsible for any failure to comply with the Terms or any of the provisions herein by Customer or any Authorized User.
- Network Access. Customer is responsible for obtaining the data network access necessary to access the Customer’s Online Testing Account and use the Test Products. Customer is responsible for acquiring and updating compatible hardware or devices necessary to access Customer’s Online Testing Account and utilize the Test Products and any updates thereto. EmployTest does not guarantee that the Test Products, or any portion thereof, will function on any particular hardware or devices. In addition, access to the Customer’s Online Testing account and use of the Test Products may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
- Disclaimer of Warranties and Limitation of Liability. (a) THE TEST PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EMPLOYTEST DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES OR REPRESENTATIONS TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO ALL WARRANTIES OF (A) MERCHANTABILITY; (B) FITNESS FOR A PARTICULAR PURPOSE; (C) TITLE; (D) ACCURACY OF DATA; AND (E) NON-INFRINGEMENT. (b) EMPLOYTEST SHALL NOT BE LIABLE TO CUSTOMER, AUTHORIZED USER, OR ANY THIRD-PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR THIRD-PARTY DAMAGES OR CLAIMS ARISING FROM THE ONLINE TESTING ACCOUNT OR TEST PRODUCTS OR TEST ADMINISTRATION, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE; (B) WHETHER SUCH DAMAGES AROSE FROM BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE; AND (C) WHETHER OR NOT EMPLOYTEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limited License & Use of Test Products. Customer and Authorized Users are granted a non-exclusive, non-transferrable, non-sublicensable, limited license to use the Online Testing Account and Test Products for Customer’s internal business purposes subject to the provisions and limitations set forth herein. Additionally, Customer and any Authorized User shall not: (a) Reproduce, duplicate, copy, sell, resell or exploit access to the Test Products, use of the Test Products, or any portion of the Test Products. (b) Modify, reverse engineer, adapt or otherwise tamper with the Online Testing Account or Test Products or modify another website so as to falsely imply that it is associated with the EmployTest, the Test Products, or any other software or products provided by EmployTest. (c) Knowingly use the Online Testing Account or Test Products in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, obscene or in violation of these Terms. (d) Alter or remove any notices, graphics, or text contained on or in the Online Testing Account.
- Publicity. If Customer submits an online review, then Customer and any Authorized User hereby irrevocably consent to any and all uses and displays, by EmployTest and its agents, representatives and licensees, of any feedback and comments from Customer or any of Customer’s employees, agents, officers, and representatives, as well as Customer, Customer employees, agents, officers, representatives, and Authorized User’s name, logo, and other identifying information with any images, recordings, websites, advertising or other marketing tools and all other printed and electronic forms and media throughout the world, at any time during or after the term of this Agreement, for all legitimate commercial and business purposes of EmployTest (“Permitted Uses”). EmployTest shall not be required to pay any compensation to Customer, its employees, agents, officers, representatives, or an Authorized User for such use. Customer, its employees, agents, officers, representatives, and Authorized Users hereby forever waives and releases EmployTest and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the term by EmployTest, arising directly or indirectly from EmployTest and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Use.
- Customer’s Acts of Omissions. If EmployTest’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer, Authorized Users, or its agents or representatives, EmployTest shall not be deemed in breach of its obligations under the Terms or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Limitations on Use of Online Testing Account and Test Products. EmployTest reserves the right to place any limitations, even if not outlined herein, and in EmployTest’s sole discretion, on the Online Testing Account and Test Products, to maintain the performance and availability of the Online Testing Account and Test Products and to enforce the Terms.
- Ownership. Customer acknowledges and agrees that the Test Publisher is the sole owner of any and all right, title or interest of any kind, anywhere in the world, whether now existing or created in the future, in any or all of the Test Products, software, screen designs, user interfaces, ideas, concepts methodologies, know-how, systems, data, documentation and processes it utilizes in regards to the Test Products, including without limitation any copyright, patent or trade secret rights that belong to Test Publisher. Customer shall retain ownership rights in any data which is the confidential information of the Customer. EmployTest will not retain any data for any purpose other than a single copy to perform its obligations pursuant to these Terms. Customer’s rights in the Online Testing Account and the Test Products are limited to those expressly granted by these Terms.
- Term, Termination, and Survival. a. The Terms shall commence upon acceptance by the Customer and shall continue and remain in full force and effect during the duration of Customer and/or Authorized User’s use of the Online Testing Account and Test Products and until terminated in accordance with the provisions outlined herein. The entire duration of the Terms shall be referred to as the “Term.” Notwithstanding the foregoing, Test Products are valid for one (1) year from date of purchase, unless otherwise provided for by separate written agreement between the parties. No refunds or extensions will be given for unused Test Products. b. Termination by Customer. Customer may terminate Customer’s use of the Online Testing Account and Test Products at any time by submitting a written notice to EmployTest at the email address identified in Section 14(c). Customer may be asked to provide a reason for such termination. Upon termination under this subsection, Customer shall not be entitled to any refund unless specifically permitted elsewhere hereunder. c. Termination by EmployTest. EmployTest may terminate Customer’s access to Customer’s Online Testing Account and use of the Test Products at any time effective upon written notice to the most recent email address provided by Customer if Customer or an Authorized User breaches any provision outlined herein. Such notification is not required to be sent prior to termination. All termination decisions are in EmployTest’s sole discretion. d. Effect of Termination. Upon termination of the Terms for any reason, EmployTest will immediately terminate Customer’s access to the Online Testing Account and Test Products by disabling Customer’s Online Testing Account and access to the Test Products. e. Surviving Rights. The rights and obligations of the parties set forth in this Section and in Sections 4, 5, 6, 9, 10, 11, and 12 and any right or obligation of the parties in the Terms which, by its nature, should survive termination or expiration of the Terms, will survive any such termination or expiration of the Terms.
- Exclusive Remedies. Notwithstanding anything stated elsewhere in these Terms, the exclusive remedy of Customer in the event of any claim regarding the Online Testing Account or Test Products associated with said Online Testing Account shall be for EmployTest to repair or replace the defect, or, if such repair or replacement is not provided or does not correct the defective item, to refund an equitable part of the Customer’s payments for the defective item determined in EmployTest’s sole discretion.
- Indemnification. Customer agrees to indemnify and hold harmless EmployTest and EmployTest’s affiliates and their officers, directors, employees, agents, successors and permitted assigns from any and all costs, claims, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including reasonable attorneys’ fees), arising out of or resulting from: (i) Customer or an Authorized User’s use of the Online Testing Account or Test Products; (ii) Customer or Authorized User’s failure to comply with the Terms; and (iii) any act or omission of Customer or an Authorized User; (iv) Customer or Authorized User’s violation of any local, State, or Federal law, rule or regulation; or (v) Customer or an Authorized User’s negligence, wrongful acts or misconduct. EmployTest is not liable for any claims related to the administration, results, or use of Test Products.
- Changes to Terms. The Terms are subject to occasional revisions. Customer or Authorized User’s access to the Online Testing Account and/or use of the Test Products after revisions will constitute Customer’s acceptance of the revised terms and the revisions will apply to the Customer and Authorized Users after the “last updated” date, which is posted on this page.
- Miscellaneous. a. Entire Agreement. The Terms, including and together with any related requirements and guidelines set forth within the Online Testing Account, constitutes the sole and entire agreement of the Parties with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter, unless otherwise agreed to by the parties in writing. b. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. c. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) or email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to EmployTest at 2265 Roswell Road, Suite 100, Marietta, GA 30062 with a copy to INFO@EMPLOYTEST.COM and to Customer: at the address and email provided by Customer. d. Interpretation. For purposes of the Terms, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to the Terms as a whole. Unless the context otherwise requires, references herein: (i) to Sections, schedules and exhibits refer to the Sections of, and schedules and exhibits included with the Terms; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any schedules and exhibits referred to herein shall be construed with, and as an integral part of, the Terms to the same extent as if they were set forth verbatim herein. e. Severability. If any term or provision of the Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. f. Headings. The headings outlined herein are for reference only and shall not affect the interpretation of the Terms. g. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Terms shall operate or be construed as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. h. Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under the Terms without the prior written consent of EmployTest. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations hereunder. i. Successors and Assigns. The Terms are binding on and inure to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. In addition to the foregoing, the Terms are binding and inure to the benefit of any successor employee to Customer or Authorized User. j. No Third-Party Beneficiaries. The Terms benefit solely the Parties to this Agreement and their respective permitted successors and assigns and nothing herein, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Terms. k. Force Majeure. EmployTest shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term hereunder when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of EmployTest including, without limitation, to acts of God, flood, fire, riots, strike, snowstorm, earthquake, explosion, governmental actions, civil unrest, national emergency, or restraints. l. Governing Law; Submission to Jurisdiction. Georgia law applies to the Terms without regard to any choice-of- law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with the Terms will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts. Service of process, summons, notice or other document by mail to such Party’s verified address shall be effective service of process for any suit, action or other proceeding brought in any such court.
Last updated 2/25/19