Enterprise-Level User Agreement
IMPORTANT-READ CAREFULLY: Please read this User Agreement carefully and be sure you understand it. This agreement is a legally binding agreement between you and Smarterer, Inc.
Last update: November 3, 2014
- Purpose. The mission of the Smarterer, Inc. enterprise-level platform is to provide designated companies or entities registered with Smarterer (each, an “Enterprise”) access to skills assessments (“Assessments”) custom developed specifically by Smarterer for the Enterprise. The Assessments score individual users (“Enterprise-Level Test-Takers”) employed by or otherwise affiliated with Enterprises on certain professional skills. In addition to providing the Assessments, we allow and encourage administrators within the Enterprise (“Administrators”) to enhance the test services by providing test questions and other test content. Test-Takers and Administrators are sometimes collectively referred to herein as “Users”).
- Consumer Accounts. If you are would like to register with Smarterer as an individual user who is not affiliated with a specific Enterprise, please go to the Smarterer consumer website [INCLUDE HYPERLINK] to access and agree to the applicable Consumer-Level User Agreement.
- USER OBLIGATIONS.
- Applicable laws and this Agreement. You must comply with all applicable laws, the Agreement, as may be amended from time to time, and with the policies and processes explained in the Agreement (including any other documents referenced herein).
- Warranty for your submissions to Smarterer. Any information you submit to us is at your own risk of loss. By providing information to us, you represent and warrant that you originally created, own or are otherwise explicitly entitled to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights.
- Assignment of User-Generated Content. To enable us to provide the Services to you and your Enterprise, you hereby grant, transfer, convey and assign unto Smarterer, forever, all of your right, title and interest in and to all User-Generated Content. You further acknowledge and understand that your Enterprise may obtain some or all of the rights you are assigning to Smarterer pursuant to a separate agreement by and between Smarterer and the Enterprise (the "Master Agreement”). For purposes hereof, "User Generated Content" means all testing and scoring information and test questions, along with any other ideas, concepts, techniques or data contributed by you relating to the Services, including any modifications, enhancements or derivative works. If you have assigned your User-Generated Content to your Enterprise separately, you understand and acknowledge that Smarterer may obtain some or all of the rights you have assigned to your Enterprise pursuant to the Master Agreement. For avoidance of doubt, in the case of a conflict between this Agreement and the Master Agreement between Smarterer and your Enterprise, the terms of the Master Agreement shall prevail to the maximum extent possible.
- Attribution of User-Generated Content. You further agree that Smarterer may but is not obligated to identify you within your Enterprise, without prior notification or consent, as the source of any User-Generated Content, including test scores and test questions, provided by you and that such right shall survive the closing of your account or the termination of this Agreement.
- Service Eligibility. To be eligible to use the Service as a User, you must meet the following criteria and represent and warrant that you: (1) are 18 years of age or older; (2) are not currently restricted from the Services, or not otherwise prohibited from having a Smarterer account, (3) are not a competitor of Smarterer or are not using the Services for reasons that are in competition with Smarterer; (4) will only maintain one Enterprise-Level Smarterer account at any given time; (5) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (6) will not violate any rights of Smarterer, including intellectual property rights such as copyright or trademark rights; (7) agree to provide at your cost or your Enterprise’s cost all equipment, software, and Internet access necessary to use the Services; and (8) if you are a Test-Taker, have been requested by an Enterprise to complete the Assessment and are lawfully affiliated with such requesting Enterprise.
- Sign-In Credentials. You agree to: (1) Keep your password secure and confidential; (2) not permit others to use your account; (3) refrain from using other Users' accounts; (4) refrain from selling, trading, or otherwise transferring your Smarterer account to another party; and (5) refrain from charging anyone for access to any portion of Smarterer, or any information therein. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own. To close your account, please email firstname.lastname@example.org . You may become a User and authenticate your Smarterer account via certain Single Secure Sign-On (“SSO”), if available through your Enterprise. When you register using SSO, you will be asked to login to the Services using your Enterprise account credentials. By becoming a User via your account with you Enterprise, you are allowing Smarterer to access your Enterprise account information. In addition, when you access your account via your Enterprise, you are granting your Enterprise permission to access the information in your account. You have the option to disable the connection between your Smarterer account and SSO account at any time by accessing the SSO account and disconnecting access to the Services.
- Indemnification. You shall indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys' fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, and (3) any activity in which you engage on or through Smarterer.
- Consumer Usage. To access and use the publicly-available Smarterer consumer platform you may register separately as an individual consumer user at any time at www.smarterer.com. Upon registration, you will be prompted to agree to and accept a separate User Agreement.
- Notify us of acts contrary to the Agreement. If you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
- Notifications and Service Messages. For purposes of service messages and notices about the Services to you, notice shall consist of an email from Smarterer to an email address associated with your account, even if we have other contact information. You also agree that Smarterer may communicate with you through your Smarterer account about your Smarterer account or services associated with Smarterer.
- Mobile Services. If you use the Services through a mobile device, you agree that information about your use of the Services through your mobile device and carrier may be communicated to us, including but not limited to your mobile carrier, your mobile device, or your physical location. In addition, use of the Services through a mobile device may cause data to be displayed on and through your mobile device. By accessing the Services using a mobile device, you represent that to the extent you import any of your Smarterer data to your mobile device that you have authority to share the transferred data with your mobile carrier or other access provider. In the event you change or deactivate your mobile account, you must promptly update your Smarterer account information to ensure that your messages are not sent to the person that acquires your old number and failure to do so is your responsibility. You acknowledge you are responsible for all charges and necessary permissions related to accessing Smarterer through your mobile access provider. Therefore, you should check with your provider to find out if the Services are available and the terms for these services for your specific mobile devices. Finally, by using any downloadable application to enable your use of the Services, you are explicitly confirming your acceptance of the terms of the End User License Agreement associated with the application provided at download or installation, or as may be updated from time to time.
- Export Control. You will only use the Services in a manner consistent with this Agreement and any and all applicable local, state, national and international laws and regulations, including, but not limited to, United States export control laws. You will not use the Services if you are located in, under the control of, or a national or resident of any country which the United States has (a) embargoed goods, (b) identified as a “Specially Designated National,” or (c) placed on the Commerce Department’s Table of Deny Orders. Additionally, if the Services are not legal in your jurisdiction, you may not register for and use the Services. Users outside the United State consent to having personal data transferred to and processed in the United States.
- YOUR RIGHTS. On the condition that you comply with all your obligations under this Agreement, we grant you a limited, revocable, nonexclusive, nonassignable, nonsublicenseable right to access, through a generally available web browser or mobile device or application (but not through scraping, spidering, crawling or other technology or software used to access data without the express written consent of Smarterer), view information and use the Services that we provide on Smarterer webpages and in accordance with this Agreement. Any other use of Smarterer contrary to our mission and purpose is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in Smarterer and all related items.
- SMARTERER RIGHTS AND OBLIGATIONS.
- Services Availability. For as long as Smarterer continues to offer the Services, Smarterer shall provide and seek to update, improve and expand the Services. As a result, we allow you to access Smarterer as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue Smarterer, partially or entirely, or change and modify prices for all or part of the Services in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. Smarterer further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by Smarterer to be contrary to this Agreement. For avoidance of doubt, Smarterer has no obligation to store, maintain or provide you a copy of any content that you or other Users provide when using the Services.
- Disclosure of User Information. You acknowledge, consent and agree that we may access, preserve, and disclose to your affiliated Enterprise your registration information and any other information you provide to us, including test scores and test questions, and that disclosure of such information is an essential part of the services provided hereunder. We may also provide such information to third parties if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including but not limited to civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of Smarterer, our Users or the public.
- Connections and Interactions with other Users. You are solely responsible for your interactions with other Users within your Enterprise. Smarterer may limit the number of connections you may have to other Users and may, in certain circumstances, prohibit you from contacting other Users through use of the Services or otherwise limit your use of the Services. Smarterer reserves the right, but has no obligation, to monitor disputes between you and other members and to restrict, suspend, or close your account if Smarterer determines, in our sole discretion, that doing so is necessary to enforce this Agreement.
- SMARTERER IS NOT RESPONSIBLE FOR AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE HIRING DECISIONS MADE BY EMPLOYERS ABOUT USERS BASED ON THEIR USE OF THE SERVICE. USERS SHOULD ENTER INTO EMPLOYMENT ARRANGEMENTS AT THEIR OWN RISK. ADDITIONALLY, SMARTERER IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FITNESS OR QUALIFICATIONS OF ANY USER RELATING TO A PARTICULAR POSITION, AND POTENTIAL EMPLOYERS SHOULD HIRE AT THEIR OWN RISK.
- LIMITATION OF LIABILITY. SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. Neither Smarterer nor any of our subsidiaries, affiliated companies, agents, employees, shareholders, or directors ("Smarterer Affiliates") shall be liable for (a) any damages in excess of US $100, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the Service, any platform applications or any of the content or other materials on, accessed through or downloaded from Smarterer. This limitation of liability shall apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose. Notwithstanding the above, this limitation of liability shall not apply to any damage that Smarterer may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in this Agreement.
- Mutual Rights of Termination. You may terminate this Agreement, for any or no reason, at any time, with notice to Smarterer. This notice will be effective upon Smarterer processing your notice. Smarterer may terminate the Agreement for any reason (including at the request of your Enterprise or because your Enterprise has terminated its account with Smarterer) or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. Termination of your Smarterer account includes disabling your access to Smarterer and may also bar you from any future use of Smarterer.
- Misuse of the Services. Smarterer may restrict, suspend or terminate the account of any User who abuses or misuses the Services. Misuse of the Services includes creating multiple or false profiles; using the Services commercially without Smarterer's authorization, infringing any intellectual property rights, or any other behavior that Smarterer, in its sole discretion, deems contrary to its purpose. In addition, and without limiting the foregoing, Smarterer has adopted a policy of terminating accounts of Users who, in Smarterer's sole discretion, are deemed to be repeat infringers under the United States Copyright Act.
- Effect of Termination. Upon the termination of your Smarterer Enterprise-Level account, you lose access to the Services. Termination of your Enterprise-Level account will not automatically result in termination of any individual consumer accounts you may have with Smarterer. Smarterer may block access to the Services from an IP address or range of IP addresses associated with those of terminated Users. The terms of this Agreement, including but not limited to the terms set forth in Section 2.C ("Account Information"), D ("License of User-Generated Content") and E (Attribution of User-Generated Content) shall expressly survive any termination, except Sections 3 ("Your Rights") and 4.A-B, and D ("Our Rights and Obligations") hereof. Among other things, Smarterer may continue to use and aggregate your test information to generate statistical data.
- MASSACHUSETTS LAW AND ARBITRATION.
- Agreement to Arbitrate and Pay Attorneys' Fees. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Boston, Massachusetts, in English, with a written decision stating and legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses.
- Exception from Arbitration Agreement. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
- GENERAL TERMS.
- Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
- Notices and Service of Process. In addition to Section 2.K ("Notices and Service Messages"), we may notify you via postings on www.Smarterer.com. You may contact us via email at: email@example.com. Or via mail or courier at: Smarterer Corporation, ATTN: President, 500 Harrison Avenue, Suite 3R Boston, MA 02118. Additionally, Smarterer accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
- Entire Agreement. You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to a separate agreement or employment arrangement between you and your Enterprise, or additional terms and conditions that may apply when you use or purchase certain other Smarterer services, third-party content or third party software.
- Amendments to this Agreement. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.Smarterer.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time per Section 8 (Termination).
- No informal waivers, agreements or representations. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any Smarterer Affiliate shall be deemed legally binding on any Smarterer Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Smarterer.
- No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
- Beneficiaries. Entities other than Smarterer, Inc., that Smarterer Inc. owns a 50% or greater interest in are not parties, but intended third party beneficiaries of this Agreement, with a right to enforce the Agreement directly against you.
- Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Smarterer, Inc. for any third party that assumes our rights and obligations under this Agreement.
- COMPLAINTS REGARDING CONTENT POSTED ON THE SMARTERER WEBSITE. We built Smarterer to help you identify and showcase your digital, social and technical skills. To achieving this purpose, we encourage our Users to share truthful and accurate information. We also respect the intellectual property rights of others. Accordingly, this Agreement requires that information posted by Users be accurate and not in violation of the intellectual property rights or other rights of third parties. To promote these objectives, Smarterer provides the following process for submission of complaints concerning content posted by our Users:
- Making a Claim. If you are a copyright owner or agent and believe that any User submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
You acknowledge that if you fail to comply with all of the requirements of this section your DMCA notice may be invalid.
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Notice Party. Smarterer's designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, Smarterer, Inc., Harrison Avenue, Suite 3R, Boston, MA 02118. You can also email us at firstname.lastname@example.org.
- Counter-Notice. If you believe that your removed content (or content to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to the Copyright Agent:
If a counter-notice is received by the Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored in 10 business days or more after receipt of the counter-notice, at our sole discretion.
Acknowledgment. You acknowledge that if you fail to comply with all of the requirements of this notice, your DMCA notice may not be valid. Smarterer, Inc., Boston, Massachusetts, September 30, 2014.
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to arbitration under auspices and rules of the American Arbitration Association, to be held in Boston, MA, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.