You may not use, copy, modify, transfer or export the Software, except as, and if, expressly provided in this Agreement.
1. Right of Use. The Software is intended for use solely in conjunction with the test or test(s) (each a “Test”) your test administrator (e.g., educational institution, employer or testing service) has arranged for you to take on one computer or mobile device that you own or otherwise have the right to use (the “Hardware”). Subject to the terms and conditions of this Agreement, ProctorFree hereby grants you a limited, non-exclusive, non-transferable, non-sublicenseable right to use the Software solely for purposes of taking the Test on the Hardware. This right of use granted to you under this Section 1 will automatically terminate if you fail to comply with the terms and conditions of this Agreement. ProctorFree reserves the right to require you to create an account or otherwise sign up and authenticate your identity prior to allowing you to access the Software. You agree to secure and protect any account or other personal log-in information from use by any other person.
2. Data Collected. You acknowledge and agree that the Software is intended to monitor your performance on the Test you are taking (the “Service”) via the camera, microphone, keyboard, mouse and other features of the Hardware to deter prohibited behavior and provide a proctoring report (collectively, “Proctoring Results”). You understand and agree that to be able to provide the Service, we need to collect and use the proctoring information and certain technical and related information regarding your Hardware (“Hardware Identification Data”). By downloading or otherwise accessing the Software, you grant us a license and permission to retrieve, store and use related data for the sole purposed of proctoring an online examination.
3. Use Restrictions. You may not use the Software except as permitted under Section 1 (Right of Use), or for any purpose that is unlawful or violates this Agreement. Additionally, you may not (a) authorize or permit use of the Software by anyone other than yourself; (b) copy, market or distribute the Software; (c) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, your rights under Section 1 above; (d) use the Software in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services for the benefit of, or on behalf of, any third party; (e) modify or create any derivative works of the Software (or any component thereof); (f) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Software is compiled or interpreted, and you hereby acknowledge that nothing in this Agreement shall be construed to grant you any right to obtain or use such source code; or (g) upload or transmit any form of virus, worm, Trojan horse, or other malicious code through the Software, or interfere with or disrupt any servers or networks connected to the Software or used to provide the Service; or (g) disclose the contents of the Software unless authorized to do so by ProctorFree in writing. You may not use ProctorFree’s name or other trademarks without the prior written approval of ProctorFree. You may not cover your face during the use of this software, and covering your face duing a test will lead ProctorFree to report you as a low trust test taker.
4. No Tampering. You may not tamper with any features or functions of the Software or the Hardware, including, without limitation, the camera, microphone, keyboard, or mouse of the Hardware, in order to obstruct or otherwise interfere with the Service, or distort, impair or modify Performance Data. In the event that any such tampering is suspected, whether intentional or due merely to a malfunction of the Hardware, ProctorFree will report you as a low trust test taker to your test administrator. The test administrator will determine in its discretion whether your Test results will be accepted and take any other action deemed appropriate by such test administrator (by way of example and not limitation, re-testing).
5. ProctorFree’s Role. The Service is provided for the benefit of your test administrator, to provide the test administrator with objective Performance Data that can be used to evaluate the reliability of your Test results. Use of the proctoring data is entirely within the discretion of the test administrator and you should direct any questions or concerns regarding such use to your test administrator. ProctorFree has no responsibility or liability with respect to the use of any proctoring data.
7. Ownership. Subject to the limited right granted to you in Section 1, ProctorFree retains all right, title and interest in and to the Software and all associated intellectual property rights, including without limitation any related patents, patent applications, copyrights, trademarks or trade secrets. You acknowledge that you neither own nor acquire any other rights in the Software or any associated intellectual property rights. ProctorFree reserves all rights in the Software not expressly granted to you in this Agreement.
8. Disclaimers. THE SOFTWARE AND ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PROCTORFREE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, NON-INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. NO WARRANTY IS MADE BY PROCTORFREE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. CERTAIN STATES MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
PROCTORFREE DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE. DOWNLOAD OR UPLOAD OF ANY MATERIAL THROUGH SOFTWARE IS AT YOUR OWN RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR HARDWARE OR ANY LINKED COMPUTER SYSTEM, OR ANY LOSS OF DATA THAT MAY RESULT.
9. Limitations on Liability. YOU AGREE AND ACKNOWLEDGE THAT USE OF THE SOFTWARE IS AT YOUR OWN RISK. IN NO EVENT WILL PROCTORFREE, ITS LICENSORS OR VENDORS, OR THE TEST ADMINISTRATOR, BE LIABLE FOR ANY DAMAGES OR ANY OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE SOFTWARE. INCLUDING LEGAL FEES, ARISING OUT OF SUCH USE OR INABILITY TO USE THE SOFTWARE, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF SUCH PARTIES WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROCTORFREE TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED $100.00 (USD). IF THE SOFTWARE WAS OBTAINED BY YOU FREE OF CHARGE, PROCTORFREE’S AGGREGATE LIABILITY SHALL NOT EXCEED $1.00 (USD). YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND PROCTORFREE RELATING TO THE PROVISION OF THE SOFTWARE TO YOU, AND PROCTORFREE WOULD NOT PROVIDE THE SOFTWARE TO YOU WITHOUT THIS LIMITATION.
10. Indemnification. You agree to indemnify, hold harmless and, at ProctorFree’s option, defend ProctorFree (including its affiliates and their officers, directors, employees, agents, licensors and vendors) and the test administrator from and against all damages, liabilities, and expenses, including reasonable attorneys’ fees, resulting from any violation of this Agreement.
11. Applicable Law. This Agreement will be governed by the laws of the State of North Carolina, U.S.A., without reference to conflicts of laws principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this Agreement. For purposes of all claims brought under this Agreement, each of you and ProctorFree hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Mecklenburg County, North Carolina.
12. Export Controls. The Software and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into any country to which the U.S.A. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.