ExamFX, Inc.
Terms & Conditions
This website
("Site(s)") is owned and operated by ExamFX, Inc. located at 11161
Overbrook Road, Leawood, KS 66211, USA.
PLEASE READ THIS AGREEMENT
CAREFULLY. IT IS A LEGAL AGREEMENT ("AGREEMENT") BETWEEN YOU
("YOU"), THE PERSON NAMED IN THE ACCOUNT, AND EXAMFX, INC.
("EXAMFX") AND GOVERNS YOUR USE OF THIS WEBSITE AND EXAMFX’S
PRODUCTS, SERVICES, MATERIALS, COURSES AND CONTENT, WHETHER DELIVERED BY
SHIPMENT OR ACCESSED ONLINE (COLLECTIVELY REFERRED TO HEREIN AS "EXAMFX
PRODUCTS") MADE AVAILABLE TO YOU BY EXAMFX, UNLESS A SEPARATE WRITTEN MASTER
LICENSING AND SERVICES AGREEMENT IS SIGNED BY EXAMFX AND YOU, IN WHICH CASE
YOUR USE OF EXAMFX PRODUCTS SHALL BE GOVERNED BY SUCH AGREEMENT. YOU MUST AGREE
TO THESE TERMS BEFORE ESTABLISHING AN ACCOUNT WITH EXAMFX AND BEFORE YOU ACCESS
ANY EXAMFX PRODUCTS. BY AGREEING TO THESE TERMS, YOU ARE CERTIFYING THAT YOU
ARE THE PERSON NAMED IN THE ACCOUNT. TO AGREE TO THESE TERMS, CLICK
"AGREE." IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK
"AGREE" AND, INSTEAD, CONTACT EXAMFX CUSTOMER SERVICE. IF YOU DO NOT
CLICK "AGREE", YOU WILL NOT BE ABLE TO CREATE AN ACCOUNT WITH EXAMFX
AND YOU CANNOT ACCESS THE EXAMFX PRODUCTS.
YOUR EXAMFX ACCOUNT
When creating an account
with ExamFX ("Account"), you will be required to provide certain
information. You will be required to set up a username and password. You agree
to provide complete and accurate information to ExamFX and to permit ExamFX to
store and use your registration data for use in maintaining your Account. You
agree to protect your username and password, as well as any access codes and
product codes provided by ExamFX, and not share them with others or permit any
unauthorized use of the ExamFX Products. By establishing an Account, you
certify and represent that you will be the person taking the course(s) or
assessment(s) for which you have registered and that any attestations which you
are required to complete in connection with the foregoing will be completed
only by you.
ExamFX and its partners
store and use your data to provide Products and related material to you. You
understand that the data that ExamFX collects from you, or that you provide in
your Account or when using the Products (and any information created in relationship
to your use of the Products) is stored in systems and data storage operating in
the U.S. In providing any and all data with respect to
the Products, you agree to the transfer of your data to the Company, its
partners and your employer or sponsor
institution, and the processing and storage of your data by the Company and its
partners in the U.S. to provide the Products to you in accordance with these
Terms and Conditions. ExamFX’s Data Processing Addendum (the
“DPA”) is hereby incorporated by reference, and governs the Processing of
Personal Data (as both terms are defined in the DPA) on your behalf.
YOUR PURCHASES
These Terms and Conditions
apply to all purchases unless specifically modified by a contract agreement
between ExamFX and a corporate customer. All fees are expressed in U.S.
dollars. While some products and services may be provided through your employer
and are subject to the terms of the contract between ExamFX and your employer
or, if you are a contractor or freelancer, the business that has engaged you,
many products and services are sold direct-to-consumer. Full payment is made at
the time of sale.
Periodically, ExamFX
offers promotions or discounts that, if provided at the time of purchase, will
be immediately reflected in the purchase price. Most promotions and discounts
are offered with specific terms and conditions, including eligibility conditions,
so customers are advised to reviews these Terms and Conditions in advance of
purchase. Please note that promotions and discounts are not
stackable. Only one promotion or discount can be applied to an order and that
any promotion must be claimed at the time of purchase. ExamFX may remit a
portion of fees to third parties engaged in recruitment and marketing
activities on behalf of ExamFX. You acknowledge and agree that ExamFX may
allocate a portion of fees paid by you to compensate third parties involved in
such recruitment and marketing activities, and you explicitly consent to such
allocation. You acknowledge that such allocation does not impact the overall
cost of the ExamFX products or services, and that the remittance of any portion
of fees described in this paragraph is solely for the purpose of compensating
such third parties for their efforts in promoting ExamFX products and services.
ExamFX products have
different course access periods, but some allow for the purchase of extension
periods. Your access to a product will terminate when the course period expires
or, if you purchase an extension, when the extension expires. Under no circumstance
will your access period, even with the purchase of extensions, exceed one year.
Notwithstanding the foregoing, ExamFX reserves the right to terminate access to
a course or product early if such course/product is being discontinued (removed
from ExamFX’s course/product offerings list). Unless
the discontinuance of the course is required to address legal or regulatory
mandates, ExamFX shall provide 30-day advance notice by email or posting within
the course/product, or, if less than 30 days, as soon as known. You are solely
responsible for completing such course/product before the notice period
expires.
Purchases made under your
ExamFX account are non-transferable. For
clarity, ExamFX Products are strictly licensed on a per user basis and are not
to be (i) shared among users; (ii) reproduced or copied in whole or in part in
any manner by you, including your instructors, or any user; (iii) projected for
shared viewing or use; or (iv) made available in any library or electronic
learning management system other than a per user basis.
INTELLECTUAL PROPERTY
You understand and agree
that ExamFX Products each constitute intellectual property and proprietary
material that is owned by ExamFX or its licensors and is protected under
intellectual property laws in the United States and other countries, which
includes, but is not limited to, copyright. All rights not expressly granted to
you under this Agreement are reserved by ExamFX and its licensors. ExamFX, Inc.
and other ExamFX trademarks, service marks, graphics, and logos used in
connection with the ExamFX Products are trademarks or registered trademarks of
ExamFX, Inc. in the United States and/or other countries. Other trademarks,
service marks, graphics, and logos used in connection with the ExamFX Products
may be the trademarks of their respective owners. ExamFX and its licensors do
not grant to you any right or license in connection with any of the foregoing
trademarks, service marks, graphics, or logos.
LICENSE TERMS
ExamFX Products made
available to you by ExamFX are licensed, and not sold, to you, subject to the
terms of this Agreement and your timely payment of any fees due and payable by
you to ExamFX. Your license to use ExamFX Products is subject to your prior acceptance
of this Agreement and you agree that these terms will apply to each ExamFX
Product, including any updates or enhancements thereto. You are not authorized
to assign or transfer this license or your access code, username, or password
to any other person or entity. Other than the rights granted to you in this
Agreement, ExamFX grants you no other rights. You agree not to copy, reproduce,
record, translate, modify, rent, lease, loan, transfer, sublicense, sell,
distribute, disassemble, decompile, reverse engineer, otherwise capture in any
medium or create any derivative works of or based on the ExamFX Products
(except as and only to the extent that the foregoing restrictions are not
permitted under applicable law or to the extent permitted by the license terms
of any open-source components included with the ExamFX Products). You agree to
use ExamFX Products only as permitted under this Agreement. Any violation of
these terms may subject you to civil and criminal penalties, prosecution,
monetary damages, and the immediate termination of your license to use ExamFX
Products. If ExamFX reasonably suspects that you have violated this Agreement,
or if you have not paid fees that are due and payable by you to ExamFX, then,
without notice to you, ExamFX may terminate this Agreement, the license, and
your account and deny you further access to ExamFX Products. Upon termination
of this license, you shall cease all use of the ExamFX Products and remain
liable for paying all amounts that may be due and payable by you to ExamFX.
ExamFX reserves the right to modify, suspend, remove, or disable access to any
ExamFX Products at any time without notice and in no event will ExamFX be
liable for making any such changes.
COMPLIANCE WITH LAWS;
EXPORT
You agree to comply with
all applicable federal, state, and local laws, including without limitation,
all applicable laws in the jurisdiction where you reside, in your use of ExamFX
Products. You will not use the ExamFX Products in any way that is prohibited by
U.S. law or that would violate U.S. export regulations. You may not use or
otherwise export or re-export the ExamFX Products except as is permitted under
U.S. laws and the laws of the jurisdiction where you reside. ExamFX Products
may not be exported into any U.S. embargoed countries or to anyone on the U.S.
Government’s list of specially designated nationals or denied persons or
entities. You warrant that you are not located in any such country or on any
such list.
GOVERNMENT USE
ExamFX Products were
developed using private funds and are "Commercial Items" as defined
in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and
"Commercial Computer Software Documentation." Consistent with 48 C.F.R.
§12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, such
Commercial Computer Software and Commercial Computer Software Documentation are
being licensed to the U.S. Government solely as Commercial Items and only with
those restricted rights granted to all other end-users pursuant to the terms of
this Agreement. Unpublished-rights reserved under the
copyright laws of the United States.
USE OF LINKS
ExamFX may include
material from third parties or include links to third party websites in its
ExamFX Products. Such material is provided as a convenience to you and ExamFX
assumes no liability or responsibility for such third-party materials or
websites.
DISCLAIMER OF WARRANTIES
EXAMFX PRODUCTS ARE
PROVIDED TO YOU "AS IS" AND "AS AVAILABLE", WITHOUT
WARRANTY OF ANY KIND, AND EXAMFX HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT
TO THE EXAMFX PRODUCTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
SATISFACTORY QUALITY OR TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT. NO ORAL
OR WRITTEN STATEMENT BY ANY EXAMFX EMPLOYEE OR REPRESENTATIVE SHALL CREATE A
WARRANTY OR MODIFY THIS SECTION. CERTAIN JURISDICTIONS DO NOT PERMIT THE
EXCLUSION OF IMPLIED WARRANTIES, SO THE FOREGOING EXCLUSION MAY NOT APPLY TO
YOU. YOU EXPRESSLY AGREE THAT YOUR USE OF, OR YOUR INABILTY TO USE, EXAMFX
PRODUCTS IS AT YOUR SOLE RISK. EXAMFX DOES NOT WARRANT FOR THE ACCURACY OR
COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED
WITHIN EXAMFX PRODUCTS OR FOR ANY ERRORS, OMISSIONS, OR ANY OUTCOMES RELATED TO
YOUR USE OF EXAMFX PRODUCTS. EXAMFX TAKES PRECAUTIONS TO PROTECT EXAMFX PRODUCTS, BUT MAKES NO WARRANTIES RESPECTING ANY HARM THAT
MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC
BOMB, OR OTHER SUCH COMPUTER PROGRAM. EXAMFX DOES NOT GUARANTEE OR WARRANT THAT
YOUR USE OF EXAMFX PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED. EXAMFX
PRODUCTS ARE PROVIDED TO YOU WITH THE UNDERSTANDING THAT EXAMFX IS NOT
RENDERING TO YOU ANY LEGAL, ACCOUNTING, OR OTHER PROFESSIONAL SERVICE OR
ADVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF
A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. YOUR FAILURE TO SUCCESSFULLY
COMPLETE AN EXAMFX PRODUCT OR YOUR FAILURE TO PASS A PROFESSIONAL LICENSURE
EXAMINATION OR OTHER PERFORMANCE REQUIREMENT IMPOSED BY A REGULATORY BODY,
INDUSTRY OVERSIGHT AGENCY OR EMPLOYER DOES NOT CONSTITUTE A DEFECTIVE PRODUCT
OR SERVICE.
LIMITATION OF LIABILITY
IN NO EVENT WILL EXAMFX,
INC. ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS,
PRINCIPALS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOST PROFITS, LOSS OF DATA, OR BUSINESS DISRUPTION, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE EXAMFX PRODUCTS, INCLUDING
BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OR
DAMAGE OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
CERTAIN JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CONSEQUENTIAL OR
INCIDENTAL DAMAGES, AND IN SUCH JURISDICTIONS, EXAMFX’S LIABILTY SHALL BE
LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.
In no event shall ExamFX's total liability to you for all damages exceed the
amount of one hundred dollars ($100.00). The foregoing limitations will apply
even if the above stated remedy fails of its essential purpose.
INDEMNIFICATION
By accepting this
Agreement and using the ExamFX Products, you agree that you will indemnify and
hold ExamFX, its directors, officers, employees, affiliates, agents,
contractors, principals, and licensors harmless in connection with any claim
arising out of your breach of the terms of this Agreement, your use of the
ExamFX Products, or any action taken by ExamFX to protect its intellectual
property, including, but not limited to, suspension or termination of your
access to ExamFX Products.
MISCELLANEOUS
ExamFX reserves the right
to update and modify the terms of this Agreement without advance notice to you
and such changes will be effective immediately when posted on this site and
will govern your continued use of ExamFX Products.
This Agreement does not
create a partnership, franchise, joint venture, agency, fiduciary, or
employment relationship between the Parties.
Neither ExamFX nor its affiliates or divisions intend to be a “Third
Party Servicer” as that term is defined in 34 C.F.R. § 668.2 or as used under
Title IV of the Higher Education Act of 1965, as amended. You should not include ExamFX in its
institutional reporting requirements, if any, to the U.S. Department of
Education pursuant to 34 C.F.R. § 668.25(e).
The ExamFX Products were
developed solely at private expense, contain "restricted computer
software" submitted with restricted rights in accordance with the US FAR
52.227-19 (a) through (c) of the Commercial Computer Software License (Dec
2007) Clause and its successors, and in all respects are proprietary data
belonging to ExamFX and/or its suppliers.
For U.S. Department of Defense units, the ExamFX Products are considered
commercial computer software in accordance with US DFARS 227.7202-3 and its
successors, and use, duplication, or disclosure by the US Government is subject
to the restrictions set forth herein.
You may not
assign any of your obligations, rights or remedies hereunder, in whole or in
part, without the express written approval of ExamFX.
ExamFX may facilitate from
time to time (which facilitation may include without limitation the collection
or remittance of payment), the engagement of certain third-party services,
including without limitation such third-party services for live, in-person
training solutions, or other related products or services in addition to the
Services described hereunder (“Third-Party Services”). You acknowledge that
Third-Party Services are provided by independent third parties and are not
directly controlled or managed by ExamFX. By using Third-Party Services, you
acknowledge and agree that ExamFX is not responsible or liable in any way for
the performance, quality, accuracy, legal or regulatory compliance, or any
other aspect of the Third-Party Services. You further understand and agree that
any engagement or use of Third-Party Services is solely at your own risk and
discretion. ExamFX does not endorse, warrant, or guarantee the suitability,
reliability, availability, or effectiveness of any Third-Party Services. ExamFX
does not make any representations or warranties, whether express or implied,
regarding the Third-Party Services, including but not limited to their fitness
for a particular purpose, non-infringement of intellectual property rights, or
their compatibility with ExamFX Products or Services. By using ExamFX Services
and engaging with Third-Party Services, you hereby release ExamFX, its
officers, directors, employees, agents, and affiliates from any
and all claims, demands, liabilities, and damages of any kind or nature,
known or unknown, arising out of or in any way connected with your use of
Third-Party Services.
This Agreement is governed
by the laws of the State of Kansas, U.S.A., without giving effect to its
conflict of law provision. Exclusive jurisdiction for any claim arising out of
this Agreement will be in the courts of the State of Kansas, U.S.A. The parties
each waive any rights to a jury trial for any claim or cause of action arising
out of this Agreement. No ExamFX employee or representative has any right or
authority to modify, whether orally or in writing, the terms of this Agreement,
unless such modification is in a written agreement signed by an authorized
representative of each party.
This Agreement is the
entire and exclusive agreement between ExamFX and you regarding your use of
ExamFX Products and replaces any prior agreements between you and ExamFX
regarding the subject matter herein. If any part of this Agreement is
determined to be invalid or unenforceable, the remaining portions shall remain
in full force and effect. ExamFX's failure to enforce
any right under this Agreement will not constitute a waiver of such right or of
any other right under this Agreement. ExamFX is not responsible for failing to
fulfill its obligations hereunder for reasons that are outside of ExamFX’s control.
ExamFX reserves the right
to take steps ExamFX believes are reasonably necessary or appropriate to
enforce and/or verify compliance with any part of this Agreement. You agree
that ExamFX has the right, without liability to you, to disclose any registration
data and/or account information to law enforcement authorities, government
officials, and/or a third party, as ExamFX believes is reasonably necessary or
appropriate to enforce and/or verify compliance with any part of this Agreement
(including but not limited to ExamFX's right to
cooperate with any legal process relating to your use of the Products, and/or a
third-party claim that your use of the Products is unlawful and/or infringes
such third party's rights).
PRIVACY POLICY
In addition the terms set
forth in this policy, your use of ExamFX’s products
and services is subject to our Privacy Policy, and
for California Residents, our Notice to California
Residents, found on this Site. We are committed to respecting your
privacy. The Privacy Policy describes how we collect, use, share and protect
information about you. When you interact with or use our products, services or
websites (“Services”), you consent to such collection, use and sharing of your
information as described in this Privacy Policy, our Terms of Use for our
websites, and the Terms and Conditions that accompany our products. Our privacy
practices may vary among the states, countries and regions in which we operate in order to comply with applicable legal requirements.