Exam Specialists Portal Agreement

NOTICE: Exam Specialists licenses the Exam Specialists Portal ("Portal") only upon the condition that you accept all of the terms contained in this license agreement. By logging in to the portal, or any of the applications of the Portal, you accept the terms of the License Agreement ("Agreement"). If you do not accept these terms, you may not use the Portal.

1. Grant of License

This Agreement authorizes you to access and use the software and functionality of the Portal that we make available at portal.examspecialists.com (or other web addresses which may be created by Exam Specialists.) or the terms of the accompanying proposal to work with Exam Specialists. This Agreement does not grant you any right to access or use any components of the Portal other than those components for which you have paid the Exam Specialists Portal usage fee to us (or are using on a trial basis). Your license does not confer to you title or ownership of the Portal and is not a sale to you of any rights in the Portal.

2. License Limitations and Termination

Your license is non-exclusive, non-transferable and is for a limited term that expires twelve months after the date your organization first accessed the Portal or contracted for use of the Portal, whichever is earlier. You may use the Portal only for internal purposes of your company or institution; you may not provide third parties with access to the Portal, nor may you use the Portal to provide products or services for third parties. You may not assign your license to a third party, nor may you rent or lease the Portal. Without prejudice to any other rights, we may terminate this agreement if you do not abide by the terms and conditions herein, in which case you must immediately cease your use of the Portal.

3. No Decompilation or Disassembly

You may not modify, create derivative work from, translate, reverse engineer, decompile, disassemble or otherwise reduce the software components of the Portal to human readable form, except to the extent permitted by applicable law.

4. Copyright

Exam Specialists or its suppliers own all titles and copyrights in and to the Portal. All title and intellectual property rights in and to the content which may be accessed through the Portal is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content.

5. No Warranty

We make no warranties, representations, conditions or covenants in relation to the portal or any services we provide to you. To the maximum extent permitted by applicable law, we and our suppliers provide the portal as is and with all faults. We hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any implied warranties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, or workmanlike effort, of lack of viruses and of lack of negligence, all with regard to the portal. Also, there is no warranty or condition of title, quiet enjoyment, quiet possession, correspondence to description or non-infringement with regard to the portal, nor is there any warranty arising from a course of dealing, usage or trade practice.

6. Exclusion of Incidental, Consequential and Certain Other Damages

To the maximum extent permitted by applicable law, in no event shall we or our suppliers be liable for any special, incidental, indirect or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the portal, or otherwise under or in connection with any provision of this agreement, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty by us or any of our suppliers, and even if we or any supplier have been advised of the possibility of such damages.

7. Limitation of Liability and Remedies

Notwithstanding any damages that you might incur for any reason whatsoever (including, but not limited to, all damages referenced above and all direct or general damages), our entire liability (including the liability of our suppliers) under this agreement and your exclusive remedy for all of the foregoing shall be limited to the amount you actually paid to us for Portal usage during the twelve months immediately preceding your claim. Regardless of its nature, you may not bring any claim against us or any of our suppliers after one year has elapsed since you were first damaged by using the Portal. The foregoing limitations, exclusions and disclaimers (including Sections 5 and 6 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

8. Dispute Resolution

Any dispute, controversy or claim arising out of or relating to this agreement, or the breach, termination or invalidity thereof, shall be settled by binding arbitration conducted in the English language in Albuquerque, New Mexico, U.S.A., under the commercial arbitration rules of the American Arbitration Association ("AAA"). The arbitration shall be conducted by a single arbitrator jointly appointed by the parties; provided, however, that if we cannot agree within thirty days after the initiation of the arbitration, then the arbitrator shall be appointed by the President of the AAA in Albuquerque. The arbitrator shall resolve disputes regarding arbitration procedures. The arbitrator may proceed to an award notwithstanding the failure of the other party to participate in the proceedings. The arbitrator shall be authorized to grant interim relief, including preventing the destruction of goods or documents involved in the dispute, protecting trade secrets and providing for security for a prospective monetary award. In no event shall punitive damages be assessed against either party. If a matter here under is brought to arbitration, the award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction, subject only to revocation on grounds of fraud or clear bias on the part of the arbitrator. Notwithstanding this, application may be made to any court for a judicial acceptance of the award or order of enforcement. Notwithstanding anything contained in this Section 7 to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party's rights here under through reformation of contract, specific performance, injunction or similar equitable relief.

9. Governing Law

This agreement is governed by the laws of Albuquerque, without giving effect to principles of conflicts of law.

10. Entire Agreement

This agreement is the entire agreement between us relating to the Portal. This agreement supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Portal or any other subject matter covered by this agreement.

11. General Provisions

Our failure to strictly enforce any term or condition or to exercise any right we may have will not constitute a waiver of our right to strictly enforce these terms and conditions or exercise our rights in the future. All rights and remedies that we have are cumulative and are in addition to any other rights and remedies we may have at law or in equity. If any provision of these terms and conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. These terms and conditions are binding upon, inure to the benefit of, and are enforceable by, the parties, and our respective heirs, personal representatives, successors and assigns.

12. By logging in to the portal, you accept the terms of this Agreement ("Agreement"). If you have any questions about the above, please contact your Exam Specialists representative or write to us at [email protected].