1: Preamble
The intent of this document is to state the conditions under
which intellectual property on our web site may be used so that
WE maintain control over this property, while allowing YOU to
use the property in a variety of ways.
2: Property Rights; Definition of Services; Ownership
a. WE hereby grant to YOU a non-exclusive, non-transferable,
royalty-free license, exercisable solely during the term of this
EULA, to use OUR technology, products and services. YOU may not
use OUR technology for any purpose other than accessing and
using OUR Services. Except for the rights expressly granted
above, this Agreement does not transfer from US to YOU any of
OUR technology, and all rights, titles and interests in and to
any of OUR technology shall remain solely with US. YOU shall
not, directly or indirectly, reverse engineer, reword, rephrase
or otherwise attempt to derive similar material from OUR
technology, including the Pearson Intelligence Battery™ and the
methods of scoring it, on
which various patents are pending.
b. All information on this site, including tests and the
methods by which they are scored, are collectively referred to
as Services.
c. WE own all rights, title and interest in and to these Services
and OUR trade names, trademarks, service marks, inventions,
copyrights, trade secrets, patents, know-how and other
intellectual property rights relating to the design, function,
marketing, promotion, sale and provision of these Services and
the related software and systems ("Marks"). Noting in this EULA
constitutes a license to YOU to use or resell OUR Marks and/or
Services.
3: Term; Termination
a. The term of this EULA shall begin upon delivery of OUR
services to YOU, and shall end when YOU cease to use these
services.
b. This EULA may be terminated by YOU by ceasing to use the
services WE provide, or by US if WE decide that YOU are in
violation of any of the terms and conditions herein set forth.
4: Purpose and Use of Services; Where Services are Delivered;
Provision for Certain Adverse Rulings
a. WE provide various Services on our web site (OnlineTests-IQ.com) to YOU
solely for their informational value. WE are not psychologists
and do not offer professional services of any kind, including psychological services. OUR tests and Services
are not intended to evaluate, classify or treat mental,
emotional, behavioral or nervous disorders or conditions,
developmental disabilities, disorders of habit or conduct,
and/or remediate the psychological aspects of physical illness
or ameliorate psychological disorders of any kind. If you believe
you need such services, you should seek professional advice from a
qualified expert.
b. WE represent and YOU agree that all of OUR Services are
offered, delivered, used and consumed in the virtual reality of
cyberspace and not in any physical state, province or country.
c. In the event that a court of competent jurisdiction rules
that paragraph b, supra, is unenforceable, illegal or
unenforceable, WE represent and YOU agree that OUR Services
shall be deemed to be offered, delivered, used and consumed in the sovereign state whose
governing law is established in §8.
5: Professional Licensure
WE represent and YOU agree that WE (specifically including
all indemnified parties defined in §12a) do not possess
specialized professional licensure that certain political
subdivisions require for administration of IQ
tests, and that WE do not
offer OUR Services in any such area or jurisdiction, and
furthermore that WE specifically forbid anyone in said
areas or jurisdictions from using OUR Services at any time for any
purpose. Since we have no means of determining what
restrictions, if any, are imposed on the administration of IQ
tests in your domicile, YOU agree to indemnify and hold US
harmless in accordance with §12 should any suit, action or
proceedings of any nature be brought against US as a result of
YOUR use of OUR Services.
6: Customer's Representations and Warranties
a. YOU hereby represent and warrant to US, and agree that YOU
have no expectation of receiving any psychological service from
US, including but not limited to those described in §3 supra.
b. YOU hereby represent and warrant to US, and agree that you
are of sufficient age to lawfully enter into this EULA.
c. YOU hereby represent and warrant to US, and agree that you
will not duplicate, copy or reproduce any information on this
site, and that you will not store, distribute or republish OUR information
or Services in any form in any medium, whether print,
electronic, or other media, whether now known or unknown, either in whole or in part.
d. This paragraph amends paragraph (c) supra to allow
YOU to store on a single personal computer information received
from US arising out of taking an IQ test or IQ tests online, provided such information is retained for your own
personal use
and for no other purpose whatsoever.
7: Disclaimer of Warranty
YOU agree to use all Services and information obtained
through or from US at your own risk.
THE SERVICES PROVIDED
UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE
BASIS. NONE OF US, OUR PARENT, SUBSIDIARY OR AFFILIATED
CORPORATIONS, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS,
DIRECTORS, SHAREHOLDERS, AFFILIATES, AGENTS, ATTORNEYS,
SUPPLIERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS,
LICENSORS OR THE LIKE MAKE ANY WARRANTIES OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT, FOR THE SERVICES WE PROVIDE. NO
REPRESENTATIVE, EMPLOYEE OR OFFICER MAKES ANY WARRANTIES THAT
THE SERVICES WILL NOT BE ERROR FREE; NOR DO ANY OF THEM MAKE ANY
WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE
OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF
ANY INFORMATION OR SERVICES CONTAINED IN OR PROVIDED THROUGH THE
SERVICES. WE ARE NOT LIABLE, AND EXPRESSLY DISCLAIM ANY
LIABILITY, FOR THE CONTENT OF ANY INFORMATION TRANSFERRED VIA
THE SERVICES PROVIDED BY US. NO ORAL ADVICE OR WRITTEN
INFORMATION GIVEN BY ANY PERSON WHO REPRESENTS US WILL CREATE A
WARRANTY; NOR MAY YOU RELY ON ANY SUCH INFORMATION OR ADVICE.
THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS
AGREEMENT.
8: Governing Law; Jurisdiction and Laying of Venue
a. Any controversy or claim arising out of or relating to this
Agreement, the formation of this Agreement or the breach of this
Agreement, including any claim based on an alleged tort, shall
be governed by the substantive laws of the State of Illinois.
The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this EULA.
b. ANY SUIT, ACTION
OR PROCEEDING CONCERNING THIS AGREEMENT MUST BE BROUGHT IN AN
ILLINOIS STATE COURT OR IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NORTHERN ILLINOIS, LOCATED IN CHICAGO, COOK
COUNTY, ILLINOIS, AND EACH OF THE PARTIES HEREBY IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF
THE APPROPRIATE APPELLATE COURTS) IN ANY SUCH SUIT,
ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH
SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
9: Entire Agreement; Amendments; Severability; Notices
a. This EULA, including documents incorporated herein by
reference, supersedes all prior discussions, negotiations and
agreements between the parties with respect to the subject
matter hereof, and this EULA constitutes the sole and entire
agreement between the parties with respect to the matters
covered hereby. In case of a conflict between this EULA and any
purchase order, service order, work order, confirmation,
correspondence or other communication of YOU or US, the terms
and conditions of this EULA shall control. No additional terms
or conditions relating to the subject matter of this EULA shall
be effective unless approved in writing by an authorized
representative of YOU and US. This Agreement may not be modified
or amended except by another agreement in writing executed by
the parties hereto; provided, however, that these Terms of
Service may be modified from time to time by US at our sole
discretion, which modifications will be effective upon posting
to OUR web site.
b. All rights and restrictions contained in this EULA may be
exercised and shall be applicable and binding only to the extent
that they do not violate any applicable laws and are intended to
be limited to the extent necessary so that they will not render
this EULA illegal, invalid or unenforceable. If any provision or
portion of any provision of this EULA shall be held to be
illegal, invalid or unenforceable by a court of competent
jurisdiction, it is the intention of the parties that the
remaining provisions or portions thereof shall constitute their
agreement with respect to the subject matter hereof, and all
such remaining provisions or portions thereof shall remain in
full force and effect.
c. All notices and demands required or contemplated hereunder by
one party to the other shall be in writing and shall be deemed
to have been duly made and given upon date of delivery if
delivered in person or by an overnight delivery or postal
service, upon receipt if delivered by facsimile the receipt of
which is confirmed by the recipient, or upon the expiration of
five days after the date of posting if mailed by certified mail,
postage prepaid.
10: Limited Warranty
a. WE represent and warrant to YOU that the Services will be
performed (a) in a manner consistent with industry standards
reasonably applicable to the performance thereof; (b) at least
at the same level of service as WE provide to others for the
same Services; and (c) in compliance in all material respects
with applicable descriptions. YOU will be deemed to have
accepted such Services unless YOU notify US, in writing, within
thirty (30) days after performance of any Services of any breach
of the foregoing warranties. YOUR sole and exclusive remedy, and
OUR sole obligation, for breach of the foregoing warranties
shall be for US, at OUR option, to re-perform the defective
Services at no cost to YOU.
b. The foregoing warranties shall not apply to performance
issues or defects in the Services (a) caused by factors outside
of OUR reasonable control; (b) that resulted from any actions or
inactions of YOU or any third parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, WE MAKE NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
WITH RESPECT TO THE SERVICES OR ANY TEST OR SOFTWARE PROVIDED
UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND WE HEREBY
EXPRESSLY DISCLAIM THE SAME. WITHOUT LIMITING THE FOREGOING, ANY
THIRD-PARTY SOFTWARE PROVIDED TO YOU HEREUNDER IS PROVIDED "AS
IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. WE DO NOT
WARRANT THAT OUR SERVICES WILL BE ACCURATE, UNINTERRUPTED,
ERROR-FREE OR COMPLETELY SECURE.
11: Limitation of Liability
a. IN NO EVENT WILL OUR LIABILITY IN CONNECTION WITH THE
SERVICES, ANY SOFTWARE PROVIDED HEREUNDER, WHETHER CAUSED BY
FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY
OR OTHERWISE, EXCEED THE AGGREGATE FEE PAID TO US BY YOU.
b. WE CANNOT GUARANTEE ACCURACY OF SCORING, ACCURACY OF
ANSWERS, OR THE RELIABILITY OF CONTENT STORED ON OUR SITE OR
TRANSMITTED VIA THE INTERNET. WE ASSUME NO RESPONSIBILITY FOR
THE ACCURACY OF INFORMATION ON SITES TO WHICH WE HYPERLINK.
c. EXCEPT AS EXPRESSLY PROVIDED BELOW, NEITHER PARTY SHALL
BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR
ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS
OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR
SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE,
WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT
HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE
OR NON- PERFORMANCE OF ANY SERVICE, OR FOR ANY CLAIM AGAINST THE
OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
12: Indemnification; Headings; Entire Agreement
a. YOU agree to indemnify, defend and hold US harmless and
our parent, subsidiary and affiliated companies, and each of
their respective officers, directors, employees, shareholders,
attorneys and agents (each an "indemnified party" and,
collectively, "indemnified parties") from and against any and
all claims, damages, losses, liabilities, suits, actions,
demands, proceedings (whether legal or administrative), and
expenses (including, but not limited to, reasonable attorney's
fees) threatened, asserted, or filed by a third party, including
governmental entities and regulatory agencies, against any of
the indemnified parties arising out of or relating to YOUR use
of OUR Services. The terms of this section shall survive any
termination of this EULA.
b. The headings herein are for convenience only and are not
part of this Agreement.
c. This Agreement, including documents incorporated herein by
reference, supersedes all prior discussions, negotiations and
agreements between the parties with respect to the subject
matter hereof, and this Agreement constitutes the sole and
entire agreement between the parties with respect to the matters
covered hereby. In case of a conflict between this Agreement and
any purchase order, service order, work order, confirmation,
correspondence or other communication of YOU or US, the terms
and conditions of this Agreement shall control. No additional
terms or conditions relating to the subject matter of this
Agreement shall be effective unless approved in writing by any
authorized representative of YOU and US.
13: Modifications
This Agreement may not be modified, amended or revised except
by another agreement in writing executed by the parties hereto;
provided, however, that these Terms of Service may be revised
from time to time by US in OUR sole discretion, which
modifications will be effective upon posting to OUR web site.
14: Date of Revision
This document was last revised on January 18, 2005. (JRM
Jr., K&E)
