Terms & Conditions

1. Customers and Authorized Users. These Terms apply to both Customers and Authorized Users, as applicable and as set forth below. 1.1. A “Customer” is you or the entity that you represent in agreeing to these Terms and creating an account on the Service, as indicated by you at the time you create an account. If you create an account but are not formally affiliated with an organization, or do not have the necessary organizational authority to enter into the Terms on behalf of such organization, then you as an individual are the Customer. 1.2. An “Authorized User” is a person who a Customer, or a person with admin access on a Customer’s account, has invited to participate in a Customer account.

2. Acceptance of Terms. By creating an account to access the Service, or by entering into an agreement to purchase a Subscription (as defined below), you agree, as an individual or on behalf of the organization that you represent, as applicable, to be bound by these Terms as Customer. By accepting an invitation to join a team or organization account created by a Customer or otherwise indicating your assent to these Terms, you agree to be bound by these Terms as an Authorized User on a Customer’s Subscription. In either case, you represent and warrant that (1) you have read, understand, and agree to be bound by these Terms, (2) you are at least 13 years of age, and (3) you have the authority to enter into the Terms (on behalf of yourself or, if applicable, the organization that you represent). If you do not wish to be bound by these Terms, you may not access or use the Service. The Service is not designed for users under the age of 13, and if you are younger than 13 you may not use the Service.unt.

4. Access to Service.

4.1. Subscriptions. A Customer may enter into an agreement with Company to purchase a subscription to access and use the Service, subject to and referencing these Terms (a “Subscription”). Subscriptions shall be purchased by completion of the web form available at www.ExamMaker.com, and the terms on such subscription page shall be incorporated into these Terms. During the term of a Subscription, Company shall provide Customer and the Authorized Users invited to Customer’s account with non-exclusive access to the Service. Customer and the Authorized Users may use the Service solely for Customer’s own internal business purposes and not for re-sale or distribution.

4.2. Free and Trial Access.

Company may, in its sole discretion, also offer Customers the ability to access and use the Service without payment, subject to these Terms (an “Unpaid Subscription”). Company may terminate any Unpaid Subscription at any time, in its sole discretion, without liability to the applicable Customer or any Authorized User.

5. Billing. Company will bill Customer in advance for use of the Service in the amount and on the frequency indicated in the Subscription. All prepaid amounts are non-refundable. Customer agrees to maintain valid and up-to-date credit-card billing information on file with Company. All payments due are in U.S. dollars. Customer will pay all reasonable expenses incurred by Company in collecting late payments, including attorneys’ fees. Company may suspend or downgrade Customer’s account if fees are not paid when due.

6. Intellectual Property

Rights & Restrictions. Company shall retain all intellectual property rights in the Service, including any and all derivatives, changes, and improvements thereof, and Customer and each Authorized User agrees that it obtains no intellectual property rights or licenses by these Terms except those expressly granted herein. Each Customer and Authorized User agrees that it shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service; (ii) not represent that it possess any proprietary interest in the Service; (iii) not directly or indirectly, take any action to contest Company's intellectual property rights or infringe them in any way; and (iv) except as specifically permitted hereunder, not use the name, trademarks, trade-names, and logos of Company.

7. Customer Content.

7.1. Ownership. All data,

information, files, or other materials and content that Customer makes available to Company for the purpose of utilizing the Service (including, without limitation, training data, prompt inputs, and drafts) (“Customer Content”) shall remain the sole property of Customer. Customer shall retain all intellectual property rights in the Customer Content. Company does not screen Customer Content, is not responsible for storing or maintaining backups of any Customer Content, and is not responsible for the content of or any use by Customer of the Customer Content.

7.2. Warranties and Covenants.

By providing or otherwise making Customer Content available to Company, Customer hereby warrants and represents that: (i) the copying, uploading, and use of the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights; (ii) Customer has fully complied with any third-party licenses, permits and authorizations required in connection with such Customer Content; (iii) the Customer Content does not contain any viruses, worms, Trojan horses, or other harmful or destructive code or content; and (iv) the Customer Content is not obscene or libelous, does not violate the right of privacy or publicity of any third party or is not otherwise illegal. Customer shall provide its end users with any notice and obtain any consent from end users as required by applicable laws and regulations in connection with the collection, use, and disclosure of any Customer Content to Company via the Service.

7.3. License to Company.

Customer hereby grants Company a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display, and perform any and all Customer Content, solely to the extent required to perform the Service. For clarity, Company will not use Customer Content to train its algorithms or otherwise to improve its products or services (subject to Section 7.4 below). The above license granted by Customer shall terminate upon removal or deletion of the Customer Content from the Service or the termination of these Terms.

7.4. Unpaid Subscription

Anonymized Data. Company may anonymize Customer Content from Unpaid Subscriptions (as so anonymized, “Unpaid Subscription Anonymized Data”) for the purpose of analyzing and improving the Service, including the algorithms underlying the Service. Customer hereby grants to Company a worldwide, non-exclusive, royalty-free, license to use, copy, reproduce, distribute, prepare derivative works of, display, and perform any and all Unpaid Subscription Anonymized Data for any such purpose, including incorporation of insights derived therefrom into its products and services, provided that no such use of the Unpaid Subscription Anonymized Data identifies the Customer or any of its Authorized Users in any manner.

7.5. Output Content.

If Customer uses Company’s “CoWrite” offering (or any rebranded version), or any other features or functions that process Customer Content, Customer will own all right, title and interest in the resulting content output (“Output Content”). Company shall and hereby does assign such rights to Customer. Output Content will be treated as Customer Content for purposes of this Agreement.

7.6. Platform Data.

In the course of providing the Service, ExamMaker may collect statistical data and performance information, analytics, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict ExamMaker’s right to collect Platform Data or to use it for any internal business purpose, provided however, that (i) Platform Data will not include any Customer Content, and (ii) ExamMaker will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer, other than ExamMaker’s employees, agents or service providers who are subject to obligations of confidentiality with respect to such Platform Data.

7.7. EU Privacy Laws.

Customer agrees that it will not transfer to Company any Customer Data that contains personal data of a person subject to the European Union General Data Protection Regulation without first entering into a mutually agreeable data processing agreement with Company.

8. Confidentiality.

8.1. Nondisclosure.

Each party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under these Terms and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and who are bound by obligations of confidentiality and non­use at least as protective of such information as these Terms and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. Notwithstanding the foregoing, it shall not be a breach of these Terms for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure. “Confidential Information” means all information of a party disclosed to the other party, regardless of the form of disclosure, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation and without the need to designate as confidential, the pricing and any special terms offered to Customer by Company.

8.2. Exceptions.

Notwithstanding anything to the contrary herein, neither party shall be liable for using or disclosing information that such party can prove: (i) was publicly known at the time it was disclosed or has become publicly known through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of these Terms by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in these Terms.

9. Representations and Warranties.

9.1. Warranties.

Each party represents and warrants that (i) these Terms constitutes a legal, valid and binding obligation of it, enforceable against it in accordance with the terms of these Terms, and (ii) its execution and delivery of these Terms and its performance hereunder will not violate any applicable law, rule or regulation. Customer and each Authorized User additionally represents and warrants that the Customer Content does not infringe upon any third party’s proprietary rights, including intellectual property rights.

9.2. Disclaimer of Warranties.

COMPANY PROVIDES THE USAGE OF THE SERVICE TO CUSTOMER ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION OR THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICE. COMPANY MAKES NO WARRANTIES WITH RESPECT TO ANY OUTPUT CONTENT.

10. Indemnification.

10.1. Indemnities.

Customer shall defend, indemnify, and hold harmless Company and its officers, directors, consultants, employees, successors, and permitted assigns, from and against any claims, damages, costs, liabilities, and expenses (including reasonable attorneys’ fees) resulting from any third-party claim, demand, or action (collectively, a “Claim”) arising from (a) the use or display of any Customer Content; or (b) Customer’s breach of its obligations or inaccuracy of its warranties hereunder.

10.2. Indemnification Procedure.

The indemnified party shall provide the indemnifying party with: (a) prompt written notice of such claim; (b) sole control over the defense and settlement of such claim; and (c) information as may be reasonably requested by the indemnifying party. The indemnified party will have the right to approve the counsel selected by the indemnifying party for defense of any such claim, which approval will not be unreasonably withheld. The indemnifying party shall not settle any such Claim in a manner that does not unconditionally release the indemnified party without the indemnified party’s written consent, not to be unreasonably withheld or delayed.

11. Limitation of Liability.

11.1. Exclusion of Damages.

In no event will Company be liable for (a) any indirect, incidental, consequential, special, punitive, or exemplary damages, including lost profits, loss of use, loss of data, cost of procurement of substitute goods or services, however caused, and on any theory of liability, whether for breach of contract, tort (including negligence and strict liability), or otherwise, whether or not company has been advised of the possibility of such damages (b) any damages caused by Customer’s use of the service.

11.2. Maximum Aggregate Liability.

Company’s maximum aggregate liability under, arising out of or relating to these Terms or the Service shall not exceed the total amount of fees paid by you to Company during the twelve months preceding the date the liability first arises.

11.3. Acknowledgement.

The liabilities limited by this Section 11 apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if Company is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if your remedies fail of their essential purpose. If applicable law limits the application of the provisions of this Section 11, Company’s liability will be limited to the maximum extent permissible by such law.

12. Taxes;

Costs. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any such taxes are required to be withheld, Customer shall pay an amount to Company such that the net amount payable to Company after withholding of taxes shall equal the amount that would have been otherwise payable under these Terms. Except as expressly provided in these Terms, each party shall bear its own costs and expenses incurred in rendering performance of these Terms.

13. Term; Termination.

These Terms shall commence on the Effective Date and shall remain in effect until terminated as provided herein. Either party may terminate these Terms by giving written notice to the other party if: (i) the other party breaches a material provision of these Terms and fails to cure the breach within 30 days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. An Authorized User may terminate these Terms at any time upon notice to Company. A Customer may terminate these Terms effective upon the end or renewal date of a Subscription, but in no event will receive a refund of pre-paid fees or be relieved of any obligation to pay fees for a Subscription. Upon termination or expiration of these Terms for any reason whatsoever, Customer will immediately cease use of the Service and either party shall return to the other party all of the other party’s Confidential Information then in its possession. Sections 6, 7, 8, 9, 10, 11, 12, 13, 14 shall survive any expiration or termination of these Terms.

14. Miscellaneous.

14.1. Governing Law.

These Terms are governed by the laws of the State of California, without regards to its conflict of laws principles, and any dispute arising from these Terms shall be brought exclusively before the state and federal courts in San Francisco, California, and each party irrevocably submits to the jurisdiction of such courts.

14.2. Assignment.

Neither party may transfer or assign its rights or obligations under these Terms to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization, or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void. Subject to the foregoing, these Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

14.3. Notices.

All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.

14.4. Relationship of Parties.

The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. These Terms will not be construed to create or imply any partnership, agency, joint venture, or formal business entity of any kind.

14.5. Severability.

If any provision of these Terms is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.

14.6. Force Majeure.

Except for payment obligations under these Terms, neither party hereto shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.

14.7. Publicity.

Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied; provided, that Customer hereby approves the display by Company of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Company.

14.8. Exclusions.

This Agreement may be displayed on Company’s website next to content that is labeled “What this means.” Any content under these sections is explicitly excluded from this

Agreement. Last Updated: Nov 20, 2023