THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
BY UTILIZING SERVICES FROM OUR WEBSITE OR OTHERWISE USING ANY OF OUR PRODUCTS OR SERVICES IN CONNECTION WITH AN AGREEMENT BETWEEN US AND YOUR SCHOOL OR EDUCATIONAL INSTITUTION (THE “AGREEMENT”), YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT, AND YOU ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS.
YOU MAY NOT ORDER, USE OR OBTAIN ANY OF OUR PRODUCTS OR SERVICES IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH US, OR (C) ARE PROHIBITED FROM ACCESSING OR USING OUR WEBSITE OR ANY OF OUR WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.
These terms and conditions (these “Terms”) apply to the purchase, sale and use of our products and services by you (referred to as “you” or “your”) provided in connection with the Agreement and made available through our online website (the “Services”). These Terms are subject to change by SmarterServices, LLC (referred to as “SmarterServices”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced herein or on our website. You should review these Terms prior to using any Services. Your continued use of the Services after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
SmarterServices is a service provider to educational institutions that (i) helps these organizations measure the readiness and performance of their learners, faculty, and programs, (ii) helps these organizations measure student readiness for online or self-regulated learning, competency based education, basic math skills, writing skills, and faculty readiness to teach online courses, (iii) provides a suite of proctoring solutions including a proctoring management system that organizes and manages all proctoring modalities including-virtual testing center, virtual proctoring, in-person proctoring, and automated proctoring, and (iv) provides other learning management system based services including identity authentication.
- Personal Use; Registration.
- Subject to these Terms and your compliance with these Terms, we grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive right to access the Services through a compatible, generally available web browser, mobile device or authorized application to view content and information and otherwise use the Services to the extent intended and permitted by the functionality thereof. This license is personal to you. You acknowledge that, except as otherwise expressly provided, these Terms are solely between you and us. The Services may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute such components (the “Open Source Components”). Although the Services are provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining any Open Source Components in accordance with the applicable third-party licenses or to limit your use of any Open Source Components thereunder.
- Limitations of our Services. While we provide many Services, these Services are only a part of the complete task (such as taking a test or scoring and responding to test scores) with which we have been engaged to facilitate. Accordingly, we do not guarantee the following, and without limiting any other limitation in these Terms.
- Proctors are typically independent contractors of ours or your educational institution whose behaviors are their own responsibility and not that of us or your educational institution.
- Fees and Payment Terms.
- Any fees, prices, discounts, and promotions posted on our website or otherwise applicable to you in connection with the Services are subject to change without notice. You agree to pay the fees as set forth on the website when you sign up for the Service.
- Compliance; Restrictions.
- You will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Services.
ALL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
- Ownership. The Services are licensed, not sold. As between you and us, SmarterServices, and its licensors and providers, own and retain all right, title and interest, including all related intellectual property rights, in and to the Services and videos and other materials provided or produced in connection with the Services, SmarterServices’ (and its licensors’ and providers’) trademarks, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Services. You retain all ownership and intellectual property rights in and to the data or information you submit to us. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data. To the extent such license is necessary under applicable law in order for us to provide the Services, you grant us a worldwide, limited right and license to host, copy, transmit, view, modify, reformat, translate, transfer and display your data as necessary or appropriate for us to provide the Services in accordance with the Agreement and these Terms.
- Confidentiality. These Terms and the existence and terms of the Agreement, or amendments thereto, as well as the Services and all documents, data, information, and other materials, which are disclosed or made available by us to you in connection with the Services are confidential (collectively, the “Confidential Information”). You may not use the Confidential Information for any purpose other than fulfilling your obligations and exercising your rights under these Terms. You may not disclose the Confidential Information to any third party without our prior written consent, except that you may make disclosures to the extent required by a court order or as otherwise required by law. If you are required by law or similar process to disclose any Confidential Information, you will provide us with prompt prior written notice of such request or requirement so that we may seek an appropriate protective order and/or waive compliance with this section. Upon our request or termination of the Agreement for any reason, you will return to us all Confidential Information, together with any copies of the same, or destroy the Confidential Information and certify to us its destruction. The requirements of confidentiality set forth herein will survive the return of such Confidential Information or termination of the Agreement. You acknowledge that damages for improper disclosure of Confidential Information may be irreparable; therefore, we are entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this section.
- Indemnification. You will, at your expense, defend, indemnify, and hold harmless SmarterServices and our employees, officers, directors, suppliers, providers, licensors and agents (“Indemnitees”) from and against any and all claims, actions, suits, demands, obligations, and proceedings (each, a “Claim”) of any kind threatened, asserted, or filed against Indemnitees by a third party, and any and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees, witness fees, and court costs) incurred in connection with such Claims, arising out of or relating to (a) a breach by you these Terms; (b) any actual or alleged infringement or violation of any right or interest of any third party by you; (c) any act or omission by you or anyone acting on your behalf; (d) any data, information, content, materials or documents provided by you; or (e) your violation of any applicable law. We will provide you notice of any Claim and reasonable assistance in your defense of the Claim. You may not settle or take any other action with respect to a Claim without our written consent, which may not be unreasonably withheld. We may participate in the defense of any Claim at our expense with counsel of our choice.
- Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO THE GREATER OF (A) THE ACTUAL AMOUNT PAID BY YOU FOR THE SERVICES OR (B) ONE THOUSAND DOLLARS ($1,000).
The limitation of liability set forth above shall only apply to the extent permitted by law.
- Personal Use. You represent and warrant that you are using the Services for your own personal use only. You further represent and warrant that all purchases are intended for final delivery to locations within the US.
- Term; Termination. These Terms shall be in full force and effect until the earlier of (a) the expiration or termination of the Agreement or (b) your last use of the Services. We may terminate these Terms and/or suspend your access to the Services in the event you breach any of the terms and conditions of these Terms. Upon expiration or termination of the Agreement or these Terms, all rights to access or use the Services terminate. All provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement shall survive the termination or expiration of this Agreement, including, without limitation, confidentiality obligations.
- Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- Governing Law and Jurisdiction. The Services are provided from the US. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule (whether of the State of Alabama or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Alabama.
- Dispute Resolution and Binding Arbitration.
- YOU AND SMARTERSERVICES ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR USE OF, OR INABILITY TO USE, THE SERVICES, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
- The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 16. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
We will be responsible for paying any individual consumer’s arbitration fees.
- You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of the later of your registration to use the Services or otherwise your first use of the Services. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
- You agree to arbitration on an individual basis. In any dispute, NEITHER YOU NOR SMARTERSERVICES WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
- Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 17 is null and void. No assignment or delegation relieves you of any of your obligations under these Terms.
- No Waivers. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of SmarterServices.
- No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you or us.
- To You. We may provide any notice to you under these Terms by: (i) sending a message to the email address you provide or (ii) by posting to our website. Notices sent by email will be effective when we send the email and notices we provide by posting will be effective upon posting. It is your responsibility to keep your email address current.
- Severability. If any provision of these Terms is invalid, illegal, void or unenforceable, then that provision will be deemed severed from these Terms and will not affect the validity or enforceability of the remaining provisions of these Terms.