EXQ SERVICE TERMS OF USE

You should carefully read the following terms of use (“Terms of Use”) before accessing or using the “ExQ: for School” service (“ExQ Service”) made available by ExQ, LLC (“ExQ”). Accessing or using the ExQ Service constitutes your acknowledgement and acceptance of these Terms of Use. If you do not agree to these Terms of Use, then do not access or use the ExQ Service.

Please read further for the full terms and conditions.

Copies of these Terms of Use are available for download and printing by using current web browser software and going to myexq.com/terms.

These Terms of Use and your registration,and if applicable your Organization Subscription Agreement (see below) comprise the entire agreement between you and ExQ, and supersede any other agreement, terms or promises, oral or written, with respect to the subject matter of these Terms of Use.

INTRODUCTION AND SOME HELPFUL TERMS

The next three sections of these Terms of Use describe in order how these Terms of Use generally apply to you depending whether you are (a) a corporation, educational institution and other organizations (“Organization”) who is subscribing to the ExQ Service on behalf of its students, staff or both, (b) the students, staff and other members of an Organization, or (c) an individual using the ExQ Service for the individual’s personal use only. The final section “GENERAL TERMS” applies generally.

A “User” is any individual who accesses or uses the ExQ Service. If you are an individual, then you are the “User”. 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).

The “Subscription Term” will be the length of time you elect to subscribe to the ExQ Service as part of your registration for the ExQ Service and will begin on the date you register (or if you enter into a written agreement with ExQ that incorporates these Terms of Use, on the date you enter into the order).

NOTICE OF BINDING ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY OF WHATEVER NATURE ARISING OUT OF OR RELATING TO THESE TERMS OF USE SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION IN ACCORDANCE WITH THE PROCESS DESCRIBED IN THE SECTION TITLED “ARBITRATION” BELOW. PLEASE READ THE SECTION TITLED “ARBITRATION” CAREFULLY.

FOR ORGANIZATIONS

THESE TERMS OF USE. If you are an Organization using the ExQ Service for its students, faculty or staff, then (i) except as indicated, all references to “you” in these Terms of Use after this paragraph mean the Organization, and (ii) the individual registering for the ExQ Service for your Organization represents and warrants (x) that the individual is currently employed by the Organization and has the authority and legal ability to bind the Organization to these Terms of Use, and (y) the organization agrees to be bound by all of the terms of these Terms of Use.

ORGANIZATION SUBSCRIPTION AGREEMENT. If your Organization has executed a written order or other agreement with ExQ for the ExQ Service, then these Terms of Use and that written order or other agreement constitute your “Organization Subscription Agreement.” Your Organization Subscription Agreement may contain additional terms and conditions including those for pricing, payment, length of Subscription Term and number of Users and additional responsibilities.

USE OF THE EXQ SERVICE. Subject to the terms and conditions of these Terms of Use, Users of your Organization may use the ExQ Service during the Subscription Term for the self-evaluation and awareness activities offered as part of the ExQ Service and to access and to view the ExQ Content and the User Content applicable to their permitted use as described in these Terms of Use. Use of the ExQ Service is limited to the number of Users that you subscribed for in your registration. Your use of the ExQ Service is also subject to the terms of the Organization Subscription Agreement between you and ExQ.

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.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.

COMPLIANCE. You are responsible for ensuring that all of your Users comply with the terms of these Terms of Use and for all activities of Users and others that occur through your account. Through the Admin User account, the Admin User will be able to access certain User Content (defined below), 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 Users. You represent and warrant that the Admin User has the authority to access the Evaluation Data information about Users and that you have obtained all consents necessary for such access. You shall ensure that the Admin User only accesses and uses User Content and Evaluation Data of Users in the Admin User’s professional capacity and in accordance with applicable law and your policies.

FOR STUDENTS, FACULTY, AND STAFF OF AN ORGANIZATION

USE OF EXQ SERVICE. Subject to the terms and conditions of these Terms of Use, you may use the ExQ Service for your individual use during the Subscription Term for the self-evaluation and awareness activities offered as part of the ExQ Service and to access and to view the ExQ Content and your User Content. Your use of the ExQ Service is also subject to the terms of the Organization Subscription Agreement between your Organization and ExQ.

ADMIN USERS. If you are an Admin User, 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.

FOR OTHER INDIVIDUALS

If you are an individual who is not a student, faculty or staff of an Organization, then you are your own Admin User. Subject to the terms and conditions of these Terms of Use, you may use the ExQ Service for your individual use during the Subscription Term for the self-evaluation and awareness activities offered as part of the ExQ Service and to access and to view the ExQ Content and your User Content.

GENERAL TERMS

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.

SUPPORT. As part of the ExQ Service ExQ may provide support and maintenance of the EXQ Service using commercially reasonable efforts during the Subscription Term. ExQ may make available additional online support FAQs and documentation as part of the ExQ Service. Use of these resources is subject to the terms of use and privacy policy available on ExQ’s Web site.

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

  • (a) use the ExQ Service for purposes of monitoring the ExQ Service’s performance or functionality or for any other benchmarking or competitive purposes;
  • (b) distribute, sublicense, copy, modify, or publicly display the ExQ Service;
  • (c) use on behalf of any third party, or permit any third party to use, the ExQ Service;
  • (d) decompile or reverse engineer the software used to provide ExQ Service or otherwise access or obtain, or attempt to access or obtain, the source code for the software used to provide the ExQ Service;
  • (e) remove any proprietary rights notices on any portions of ExQ Service (e.g., screen shots); or
  • (f) attempt to gain unauthorized access to the ExQ Service or circumvent any security measures within the ExQ Service.

RESERVATION OF RIGHTS. The ExQ Service (including any software or systems used to operate the ExQ Service) and the ExQ Content are ExQ’s confidential and proprietary information. You agree to keep all such information confidential by exercising the necessary care required to prevent disclosure and not to disclose or use such information for any purpose whatsoever other than as expressly authorized by these Terms of Use. Except for the limited rights expressly granted above in these Terms of Use, ExQ reserves all rights, title and interest in and to the ExQ Content, the ExQ Service and its underlying technology, including all related intellectual property rights. No rights are granted to you other than as expressly set forth above in these Terms of Use.

DATA

User Content. Users will enter their profile data as well as answers to questions in the surveys and exercises provided through ExQ Service and create videos and other content (“User Content”). You represent and warrant that you (and if you are an Organization, your Users) have the right to provide User Content to ExQ for the purposes of outlined in these Terms of Use and are responsible for all User Content provided to the ExQ Service. You grant ExQ the worldwide, nonexclusive right to copy, display, modify, store, process and otherwise use your User Content, and permit ExQ’s service providers to do so, during and after the Subscription Term in order to provide the ExQ Service to you and to create and enhance Analytic Data (defined below). You are not able to change your User Content in manner that would affect the validity, reliability or integrity of the ExQ Service or its outcomes or that would affect the security of the ExQ Service.

Evaluation Data. The self-awareness scores and reports that result from the questionnaires, evaluations and games a User engages with as part of the ExQ Services (“Evaluation Data”) are able to be viewed and accessed during the Subscription Term by that User and the Organization’s Admin Users and by ExQ. The User may use and download the User’s Evaluation Data but shall not access or use the Evaluation Data of another User without that User’s permission. Admin Users may access Evaluation Data of all Users within the Admin User’s Organization subject to the terms of this Agreement. ExQ owns and retains all rights in the Evaluation Data. ExQ may use the Evaluation 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, subject to the confidentiality obligations in these Terms of Use and applicable law.

Usage Data. As a part of the ExQ Service, ExQ and its service providers may collect, process, store, modify, aggregate and otherwise use statistics and other data regarding Users’ use of the ExQ Service, including the frequency and duration of their activity within the ExQ Service and the location and IP address from which Users are accessing the ExQ Service (“Usage Data”). ExQ may use cookies and other technical means to collect, store and process this Usage Data, and you consent to such collection storage and processing. ExQ owns and retains all rights in the Usage Data. ExQ may use and disclose the Usage Data for any lawful purpose, including to improve the ExQ Service and prepare statistical analyses, reports, and benchmarking statistics for ExQ’s own use and for commercial purposes. Some of this Usage Data may form part of the ExQ Content provided to the Admin User or other Users as part of the ExQ Service. Further information about ExQ’s collection and use of Usage Data is set forth in its Privacy Policy (myexq.com/privacy).

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. 

CONFIDENTIALITY, PRIVACY AND REQUIRED DISCLOSURES. ExQ will implement commercially reasonable safeguards intended to protect the confidentiality of User Content and Evaluation Data. You acknowledge that ExQ may use third party service providers for some or all of the operations that make available the ExQ Service, so those service providers may access, store or use all of the data described above on ExQ’s behalf as part of their services, but the third party provider will be subject to confidentiality obligations similar to the ones contained in these Terms of Use. ExQ may disclose User Content, Evaluation Data and other data if required by law or to any government body upon its audit or other inspection of the records or facilities of ExQ or its providers. Further, ExQ may collect and use User Content, Evaluation Data and other data as described in its Privacy Policy (myexq.com/privacy).

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.

SUSPENSION OF ACCESS. ExQ may suspend any User’s access to the ExQ Service for any violation of these Terms of Use. You acknowledge that Users will not have access to User Content, Evaluation Data and ExQ Content through the ExQ Service during any suspension. ExQ may exercise the rights in this Section prior to expiration of the cure period in the termination provisions of these Terms of Use and without prior written notice to you. Unless your subscription is terminated, ExQ will remove the suspension upon resolution of the cause of the suspension.

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.

TERMINATION. Your right and ability to access and use ExQ Service terminates immediately upon the earlier to occur of the following: (a) at the end of the Subscription Term, or (b) upon your breach of any of the terms contained in these Terms of Use.

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.

YOUR INDEMNIFICATION. As a condition to your use of the ExQ Service, you shall defend, indemnify and hold harmless ExQ, its affiliates and its and their officers, directors, employees, agents, successors and assigns from and against any and all losses, costs, expenses (including attorneys’ fees and expenses), claims, liabilities, and damages of any kind incurred by those persons or entities which result from (a) your breach of these Terms of Use, (b) User Content or your (or if you are an Organization, your Users’) use of any Evaluation Data or ExQ Content.

LIMITATION OF LIABILITY. IN NO EVENT WILL EXQ OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU UNDER THESE TERMS OF USE OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE GREATER OF (A) $100 OR (B) THE FEES YOU PAID TO EXQ FOR THE EXQ SERVICE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. IN NO EVENT WILL EXQ OR ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE EXQ SERVICE OR THESE TERMS OF USE, EVEN IF EXQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so this paragraph may not apply to you.

COMMUNICATIONS. Any notices or inquiries to ExQ regarding these Terms of Use should be made to info@myexq.com. ExQ will contact you using the contact information you provided for the Admin User. You shall keep your Admin User’s contact information current.

GOVERNING LAW AND LANGUAGE. These Terms of Use are governed by the laws of the state of Georgia, USA, without regard to conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Use. The official language of these Terms of Use is English. All contract interpretations, notices and dispute resolutions shall be in English. Translations of any of these documents are not to be construed as official or original versions of the documents.

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.

LIMITATION OF ACTIONS. No action arising out of these Terms of Use or the ExQ Service, regardless of form, may be brought by you more than one year after the date the cause of action has accrued.

AMENDMENTS. ExQ reserves the right to change these Terms of Use from time to time without advance notice by posting the changes at myexq.com/terms. ExQ encourages you to periodically visit that page to check for any changes. You acknowledge and agree that you will be bound by the amended Terms of Use if you continue to access or use the ExQ Service after the change is posted and that it is not necessary for you to accept the updated Terms of Use in order for it to be valid and effective. Other than as described above, these Terms of Use may not be amended, including through any activity or course of dealing, without ExQ’s signed written agreement.

U.S. GOVERNMENT END USE PROVISIONS. The following applies to all acquisitions of the ExQ Service and Documentation by or for the U.S. government or by any prime contractor or subcontractor under any contract, grant or other activity with the U.S. government. The ExQ Service and software comprising the ExQ Service and information provided under these Terms of Use are “commercial items” as that term is defined at 48 C.F.R. 2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government users and licensees acquire the ExQ Service with only those rights and subject to the restrictions set forth in these Terms of Use. Notwithstanding the foregoing, the ExQ Service and its associated software and Documentation may not be acquired by the U.S. government pursuant to a contract incorporating clauses prescribed by FAR Subpart 27.4 or DFARS Subpart 227.4.

MISCELLANEOUS. The parties are independent contractors. These Terms of Use do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to these Terms of Use. No waiver of any provision of these Terms of Use will be effective unless it is in writing, refers to these Terms of Use, and is signed by authorized representatives of party against whom the waiver is enforced. No failure or delay by either party to exercise any right, power, or remedy constitutes a waiver of that right, power, or remedy. A party’s waiver of the performance of any covenant or any breach is not to be construed as a waiver of any succeeding breach or of any other covenant. If any provision of these Terms of Use requires judicial interpretation, these Terms of Use are not to be more strictly construed against one party than the other. If any provision of these Terms of Use is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of the invalidity, so that the remainder of that provision and all remaining provisions of these Terms of Use will continue in full force and effect. You may not assign, sublicense, or transfer these Terms of Use without the prior written consent of ExQ. Any attempt by you to sublicense, assign or transfer any rights, duties, or obligations hereunder is null and void.