Please read further for the full terms and conditions.
A “User” is any individual who accesses or uses the ExQ Service. If you are an individual person, then you are the “User”. If you are a minor, then your parent/guardian will also be able to access and use your account (considered the same User) and is responsible for your use. If you are an Organization, then your Users are your faculty, staff and others who access the ExQ Service through your Organization’s account.
The named User who is your contact for purposes of use of the ExQ Service and who is responsible for administering your account is the “Admin User”.
The “ExQ Content” means the Evaluation Data (defined in the DATA subsection below) as well as the other graphics, videos, games, text, and data that are made available as part of ExQ Service, other than User Content (defined in the DATA subsection below).
YOUR FACULTY. Your faculty Users will be key participants in the student Users’ experience of the ExQ Service. You shall ensure that your faculty Users understand their role as “engagement managers.” Your faculty Users must complete two weeks of standard training provided by ExQ at the beginning of the ExQ Service subscription; unless otherwise indicated in a written order or other agreement between your Organization and ExQ, this training is offered for free and occurs on a schedule agreed upon between your Organization and ExQ. In addition, each faculty User must complete an “ExQ Profile” at the beginning of the subscription. Further requirements for participating in the program may be set forth in the order or other written agreement that your Organization enters into with ExQ.
YOUR STUDENTS AND THEIR PARENTS/GUARDIANS. At the start you shall provide to ExQ a list of participating student Users and their dates of birth and school email addresses. You shall introduce the ExQ Service to student Users and their parents and ensure that they are willing to receive communications from ExQ for purpose participating in the ExQ Service.
ADMIN USERS. If you are an Admin User who is faculty or staff of an Organization, your use includes use on behalf of your Organization through the Admin User account the of certain User Content, Evaluation Data (defined below), Usage Data (defined below) and ExQ Content that is in addition to what standard Users can access, including information regarding the performance outcomes of other Users within your Organization. As an Admin User, you represent and warrant that you have the authority to access the Evaluation Data about Users and that you have obtained all consents necessary for such access. You shall only access and use User Content and Evaluation Data of Users as part of your professional capacity as faculty or staff of the Organization and in accordance with applicable law and your Organization’s policies.
YOUR DATA. You acknowledge that your User Content and Evaluation Data may be viewed by the Admin Users of your Organization.
PROTECTION OF PASSWORDS. Each User’s protection of the IDs and passwords used to access the Service is an integral part of maintaining the privacy and integrity of data in the ExQ Service. You shall keep confidential and not disclose any ID or password to third parties. You shall notify ExQ immediately of any unauthorized use of any ID or password or any other known or suspected breach of security with respect to your use of the ExQ Service.
LIMITATIONS. Users shall not use the ExQ Service in a manner that violates any laws, infringes the rights of anyone, or damages any person or property. In addition, Users may not do any of the following
Analytic Data. ExQ may aggregate and combine some or all data elements comprising User Content and Evaluation Data along with Usage Data and other third party data to create statistical and analytic data (“Analytic Data”). ExQ owns and retains all rights in the Analytic Data. ExQ may use and disclose the Analytic Data for any purpose, including to improve the ExQ Service, and prepare statistical analyses, reports, and benchmarking statistics for ExQ’s own use and for commercial purposes, but will not disclose the User as the source of such Analytic Data. Some of this Analytic Data may form part of the ExQ Content provided to the Admin User or other Users as part of the ExQ Service.
COMPENSATION. If you have purchased a subscription for the ExQ Service, you shall pay ExQ the fee via the manner described in your registration. If you are an Organization, then separate payment terms may be set forth in your Organization Subscription Agreement. As part of the registration, you may elect to pay by credit card and enter your credit card information. If you are paying by credit card, you authorize ExQ to bill the fees to the credit card you provide when the fees are due. ExQ’s acceptance of a credit card does not relieve you from any obligation to pay for the use of the ExQ Service. ExQ may invoice you for amounts due if credit card payment is not effective for any reason. If ExQ will invoice you for fees, then you shall pay any invoice within 30 days of the date of invoice. YOU SHALL PAY INTEREST AT THE LESSER OF 1.5% PER MONTH OR THE HIGHEST AMOUNT ALLOWED BY LAW ON ANY AMOUNTS NOT RECEIVED WHEN DUE. The fees are exclusive of all taxes, and you shall pay all taxes, duties or charges of any kind imposed by any taxing authority for the amounts due for fees paid for the ExQ Services, excluding taxes based solely on ExQ’s income. All fees are nonrefundable.
FEEDBACK. You grant ExQ a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the ExQ Service any suggestions, enhancement requests, recommendations or other feedback provided by you (or your Users if you are an Organization) relating to the ExQ Service (“Feedback”). ExQ may use and incorporate any Feedback without any compensation or acknowledgement. ExQ is not under any obligation to use or incorporate any Feedback.
EFFECT OF TERMINATION. At the end of the Subscription Term, provided you have fully paid ExQ, ExQ will make available one or more progress pages that contains your applicable Evaluation Data in pdf format or a different standard format determined by ExQ. In addition, for a period of 90 days after the end of the Subscription Term, you will be able to access your profile and progress report with your Evaluation Data in the ExQ Service. If you are a faculty User, then this access will include the progress reports with Evaluation Data of your student Users. Thereafter, you will no longer be able to access or use the data or content in the ExQ Service and ExQ may, but is not required to, delete such information.
DISCLAIMERS. THE EXQ SERVICE IS PROVIDED “AS IS,” AND EXQ MAKES NO, AND DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXQ DOES NOT WARRANT THAT THE EXQ SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. EXQ DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM EXQ, YOUR NETWORK, AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW OF DATA DEPENDS IN LARGE PART ON SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES, AND AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT YOUR CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF). EXQ CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, EXQ DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
ARBITRATION. Arbitration shall be conducted by and submitted to a single arbitrator selected from and administered by the Georgia, USA office of JAMS, in accordance with the then-existing expedited procedures of the JAMS Comprehensive Arbitration Rules & Procedures. The arbitration shall be conducted by a licensed attorney with experience in technology law. The arbitrator is authorized to award damages only as permitted by this Agreement. Each party shall bear its own attorneys’ fees and costs arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator and JAMS. However, if you are an individual consumer, then ExQ will pay the initial filing fee for the arbitration, less a deduction of US$100 for which you will be responsible. The arbitrator may award to the prevailing party reimbursement of its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the arbitrator. The arbitrator shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded. Judgment on the award may be entered by any court of competent jurisdiction. BY AGREEING TO THIS BINDING ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU ARE WAIVING CERTAIN RIGHTS AND PROTECTIONS WHICH MAY OTHERWISE BE AVAILABLE IF A CLAIM OR DISPUTE WERE DETERMINED BY A COURT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO SEEK OR OBTAIN CERTAIN TYPES OF DAMAGES, THE RIGHT TO A JURY TRIAL, CERTAIN RIGHTS OF APPEAL, THE RIGHT TO BRING A CLAIM AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THE RIGHT TO INVOKE FORMAL RULES OF PROCEDURE AND EVIDENCE. YOUR USE OF THE EXQ SERVICE IS BASED UPON YOUR WAIVER OF ANY RIGHT TO SUE EXQ DIRECTLY OR TO PARTICIPATE IN A CLASS ACTION SUIT FOR ANY LOSSES OR DAMAGES RESULTING FROM YOUR USE OF THE EXQ SERVICE.