1. Basic Terms.
You are responsible for Your use of the Services, including any Content You post to the Services, and for any consequences thereof. The Content You submit, post, or display may be viewed by Your Institution's authorized representatives. You should only provide Content that You are comfortable sharing with others under these Terms. You may use the Services only if You or Your Institution can form a binding contract with Proctorio and are not barred from receiving services under applicable law. If You accept these Terms and use the Services on behalf of an Institution, You represent and warrant that You are authorized to do so. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. The Services that Proctorio provides evolve, and the form and nature of the Services may change without prior notice to User. In addition, Proctorio may stop (permanently or temporarily) providing Services (or any features within the Services) to an Institution User or an End User and/or may create limits on use at Proctorio's sole discretion without providing prior notice. To ensure Institution is aware of all updates to the Services, please periodically check for updates on GitHub at github.com/proctorio/policies.
2. Restricted Access.
If Proctorio provides You with a username and password, API key, secret key, or consumer key (each referred to herein as a "Key") to grant You access to restricted areas of its website, Content, or Services, You must ensure that these credentials are kept confidential and secure. Proctorio is not liable for any loss or damage arising from Your failure to comply with the above requirements.
If Proctorio determines Your Key has been or is suspected to have been compromised, Proctorio reserves the right to revoke Your Key. In the event Your Key is revoked, Proctorio will make best use reasonable efforts to inform You, after which You will need to visit Your Institution's dashboard to have a new Key issued.
Proctorio may also disable an Institution User or an End User's access, when Your account has been or is suspected to have been compromised, or for other reasons in Proctorio's sole discretion without notice or explanation.
3. Content on the Services.
All Content, however transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control all Content posted via the Services and we cannot take responsibility for such Content. Your use or reliance on any Content or materials posted on the Services is at your own risk.
We do not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted on the Services or any opinions expressed therein. You understand that by using the Services, You may be exposed to Content that is offensive, harmful, inaccurate, or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Proctorio be liable for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage incurred as a result of the use of any Content posted, emailed, transmitted, or otherwise made available through the Services.
4. Your Rights and Obligations.
By submitting, posting, or displaying assessment Content on or through the Services You grant us a worldwide, non-exclusive, royalty-free license to use, sublicense, transmit, display, and distribute such assessment Content to designated members of Your Institution and those designated End Users. The data We collect is dependent on the Proctorio settings Institution or Institution User enables on each assessment, evaluation, or an assignment. You can learn more about the Information we may collect and why within Proctorio's comprehensive Privacy Policy at proctorio.com/privacy.
Proctorio is not responsible or liable for any use of Your Content by Your Institution. You represent and warrant that You have all the rights, power, and authority necessary to grant the rights granted herein to any Content that You submit.
If Institution has entered into a SaaS Agreement with Proctorio, Institution may permit Institution Users and End Users together "Authorized Users" to use the Application Service, if Authorized Users are subject to an enforceable agreement, providing the same or greater protections for Proctorio's Confidential Information and Application IP as found in these Terms, the SaaS Agreement, the Acceptable Use Policy and the Privacy Policy. "Confidential Information" includes, but is not limited to, any and all written or oral information concerning the SaaS Agreement You may enter into with us, pricing and financial information, performance requirements, proposals, Application Documentation, Content, and Personally Identifiable Information.
Proctorio is committed to the ethical use of Proctorio's Application Service by the Institution and Authorized Users. End Users (Institution-approved representatives and test takers) are required to comply with the Acceptable Use Policy (AUP) before utilizing the Services.
At Institution's expense, Institution will assist Proctorio with access to, and use of, its facilities, equipment, and personnel, as Proctorio may need to perform Its obligations and enforce the obligations of the Authorized Users under an applicable SaaS Agreement and these Terms of Service.
5. Your License to Use the Services.
Some of Proctorio's Services may require you to install a browser extension.
You will not, nor will you permit any Authorized User to: (i) copy or duplicate any of the Application Service, text, and/or graphical documentation describing the Application Service's functionality ("Application Documentation") provided through a release, update, or upgrade, and all related intellectual property provided to You (collectively, "Application IP"); (ii) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code, compiled code, and/or language packs from which any software component of any of the Application IP is compiled or interpreted, or apply any other process or procedure to derive the source code, compiled code, and/or language packs of any software included in the Application IP, and You acknowledge that nothing in these Terms or in the SaaS Agreement will be construed to grant You any right to obtain or use such source code; (iii) modify, alter, tamper with, or repair any of the Application IP, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with Proctorio's prior written consent; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Application IP; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Application IP; or (vi) assign, sublicense, sell, resell, lease, rent, or otherwise transfer, convey, pledge as security, or otherwise encumber, Your rights under the SaaS Agreement and these Terms. You will not use any of the Application IP or Services except in compliance with these Terms and the SaaS Agreement, including without limitation complying with Service Level Agreement. So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we'll make that license available to you and the provisions of that license may expressly override some of these Terms. Your use of the Application IP or Services must comply with all applicable laws, statutes, regulations, or rules.
Learn more about where and how exam recordings are stored within Proctorio's comprehensive Privacy Policy.
6. Proctorio Rights and Obligations.
Proctorio and its licensors retain all right, title, and interest in, to, and under the Services, Application IP, and their components and any data Proctorio provides through the Services or Application Service. You acknowledge that You neither own nor acquire any additional rights in and to the foregoing that these Terms and/or the SaaS Agreement do not expressly grant.
The Services and all related documentation; including, but not limited to, Institution SaaS contract terms, RFP responses, Proctorio-issued communications via public or private channels, user guides, Proctorio Academy, training materials, training videos (hosted by Proctorio, on Youtube or any other video platform), and help center content are protected by intellectual property, copyright, trademark, and other such applicable laws of the jurisdictions in which the Services are being used. Nothing in the Terms gives You a right to use the Proctorio name or any of the Proctorio trademarks, logos, domain names, and other distinctive brand features.
7. Feedback and Violation Reporting.
Proctorio shall exclusively own all product feedback and any related communications, comments, or questions which are transmitted to Proctorio by any means suggesting or recommending changes to the Application IP, including, new features or functionality (collectively, "Feedback"). You hereby assign all right, title, and interest in, to, and under the Feedback and agree to provide us assistance to document, perfect, and maintain our rights in the Feedback. We may use, without any restrictions, attribution, or compensation to You, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable, for any purpose whatsoever. You agree and understand that we are not obligated to use, display, reproduce, or distribute anything in the Feedback. Please report any incidents of potential violations or unethical behavior as set forth in our Whistleblower Policy, available on GitHub at github.com/proctorio/policies.
8. Proctorio Minimum System Requirements.
Proctorio offers a flexible service, which may include recording of video, audio, and/or screen activity. The system requirements are dependent on the exam settings.
More information can be found at proctorio.com/support/requirements.
9. Restrictions on Use of Services.
Proctorio has the right, but not the obligation, at all times to remove or refuse to distribute any Content on the Services, to suspend or terminate users without liability to You if we reasonably determine that the Content or users materially violated these Terms. Subject to applicable laws and the terms of Proctorio's Privacy Policy, we also reserve the right to access, read, preserve, and disclose any information as we reasonably believe necessary to: (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations hereof; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of Proctorio, its users, its clients, and the public.
While accessing or using the Services You shall not: (i) access, tamper with, or use non-public areas of the Services, Proctorio's computer systems, or the technical delivery systems of Proctorio's providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through Proctorio's currently available published interfaces (and only pursuant to those terms and conditions), unless You have been specifically allowed to do so in a separate agreement with Proctorio; (iv) forge any TCP/IP packet header or any part of the header information in any written communication, or in any way use the Services to send altered, deceptive, or false source-identifying information; or (v) interfere with, or disrupt (or attempt to do so), the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services.
Proctorio’s Services are not considered an Automated Decision Tool (“ADT”). An ADT is an artificial intelligence system or service that makes a consequential decision, or is a substantial factor in making consequential decisions. The Services do not autonomously make or recommend critical decisions based on algorithmic processes. Instead, the Services serve as an analytical or support tool, requiring human input and oversight for any significant actions. You agree that you will not use the Services to automate any decisions. 10. Copyright Policy.
Proctorio respects the intellectual property rights of others and expects You to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to Proctorio. If You believe Your Content has been infringed, please provide Proctorio with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Proctorio to locate the material; (iv) Your contact information, including Your address, telephone number, and email; (v) a statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at Proctorio's sole discretion, and without liability to You. Proctorio will also terminate an Authorized User's account if the user is determined to be a repeat infringer.
If you suspect Content to infringe upon the proprietary rights of others, please contact Proctorio's designated copyright agent found on dmca.copyright.gov/osp.
11. Ending these Terms.
The Terms will continue to apply until terminated by either You or Proctorio, pursuant to the following provisions, unless You are otherwise subject to certain termination provisions arising from a SaaS Agreement with Proctorio.
An Authorized User may terminate Authorized User's agreement with Proctorio at any time for any reason, without notifying us, by discontinuing Authorized User's use of the Services, unless otherwise provided in a SaaS Agreement. If Authorized User stops using the Services, Authorized User's accounts may be deactivated due to prolonged inactivity and in Proctorio's sole discretion.
We may suspend or terminate Authorized User's account or cease providing Authorized User with all or part of the Services at any time for any reason, including, but not limited to, if we reasonably believe: (i) Authorized User has violated these Terms; (ii) Authorized User creates risk or possible legal exposure for Proctorio; or (iii) it is no longer commercially viable to provide Services to Authorized User. We will make reasonable efforts to notify Authorized User by the email address associated with Authorized User's account or the next time Authorized User attempts to access Authorized User's account.
In all such cases, the Terms shall terminate, including, without limitation, Authorized User license to use the Services, except that the following sections of these Terms of Service shall continue to apply: Sections 3, 4, 6, 8, 10, 11, 14.
Nothing in this section shall affect Proctorio's rights to change, limit or stop the provision of the Services without prior notice, as provided above in Section 1.
12. Indemnification.
If You entered into a SaaS Agreement with Proctorio, Proctorio agrees to indemnify, defend, and hold You harmless from and against any and all losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from (a) any third party claim that the Application Service and/or the Application Documentation infringes such third party's U.S. patents issued as of the Effective Date or infringes or misappropriates, as applicable, such third party's copyrights or trade secret rights under applicable laws of any jurisdiction, provided You promptly notify Proctorio in writing of the claim, cooperate with Proctorio, and allow Proctorio sole authority to control the defense and settlement of such claim; provided however Proctorio shall not admit fault or liability on Your part without Your prior written consent; (b) any claim that Proctorio failed to comply with applicable law, or violated confidentiality obligations in a SaaS Agreement; (c) Proctorio's gross negligence or willful misconduct. In the event of a claim under (a), in addition to Proctorio's indemnification obligations, You agree to permit Proctorio, at Proctorio's sole discretion, to enable You to continue to use the Application Service or the Application Documentation, or to modify or replace any such infringing material to make it non-infringing. If none of these alternatives is available, You shall, upon Proctorio's written request, cease use of, and, if applicable, return, materials subject to the infringement claim. This provision shall not apply if the alleged infringement arises from any: (i) modification of the Application IP; (ii) combination, operation, or use of the Application IP with other non-Proctorio provided software, hardware or technology; (iii) use of a superseded or altered release of any of the Application IP, if You failed to use a then-current release of the Application IP we provided to you; (iv) Customer Content; or (v) Third Party Products (any of the foregoing circumstances under clauses (i), (ii), (iii), or (iv), or (v) an "Indemnity Exclusion"). THIS IS PROCTORIO'S ENTIRE OBLIGATION AND LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS, AND PROCTORIO'S LIABILITY UNDER THIS SECTION SHALL NOT EXCEED PROCTORIO'S LIMITATIONS OF LIABILITY.
To the extent allowable by law You agree to hold harmless, indemnify, and, at Proctorio's option, defend Proctorio from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from: (i) Your or any Authorized User's negligence or willful misconduct; (ii) Your or any Authorized User's unauthorized use of the Application IP; (iii) third-party claims arising from Your alleged violations of law; or (iv) a an Indemnity Exclusion, provided Proctorio promptly notifies You in writing of the claim, cooperates with You, and allows You sole authority to control the defense and settlement of such claim; provided however You will not settle any third-party claim against Proctorio without Proctorio's consent.
13. K-12 Institutions.
We recognize that certain privacy protections apply specifically to minors, and accordingly have implemented additional privacy and security protections in place for minor users. If you are accessing and using the Services as a representative of a K-12 Institution, as a parent of a child attending a K-12 Institution (collectively, "Minor Representative"), or as the minor child who has been given parental permission by a parent, the following terms will also apply to you.
A. Student Users. Minor students agree that they have obtained consent from a parent/legal guardian for their use of the Site and Services in connection with educational uses. By using the Site and Services, if you are a minor, you represent that you have obtained consent from your parent/legal guardian who has read and agrees to this Agreement on your behalf. If you do not obtain such consent, then you are not authorized to use the Site or the Services.
B. Parents and Guardians. As a parent or guardian, you represent and warrant that you are over the age of majority; that you are entering into this Agreement on your behalf and on the behalf of your minor student, and that you have authority to bind you and your minor students to the terms herein. You acknowledge and agree that minor students cannot use the Site and Services without a parent/legal guardian first accepting this Agreement on their behalf. To the extent your minor student needs to set up an account, you, as the parent or guardian are responsible for doing so, and are responsible for both all information provided in setting up that account, and all actions taken by the minor student using that account.
C. Collection of Student Information. Proctorio's Services only collect the personal information from K-12 students that is needed for the operation and management of the Services, and only where the educational institution has contracted with Proctorio to do so. We first require that the educational institution (i) obtain the consent of parents/legal guardians prior to collecting such information or (ii) consent on their behalf. Further information concerning how K-12 student information is handled can be found in Proctorio's Privacy Policy.
14. Disclaimers and Limitations of Liability.
This section limits the liability of Proctorio and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the "Proctorio Entities") and You. Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result the contents of this section may not apply to You. Nothing in this section is intended to limit any rights You may have which may not be lawfully limited.
A. The Services are Available "AS-IS"
Except as otherwise stated in these Terms or a SaaS Agreement, You access and use the Services and Content at Your own risk. Except as otherwise stated in these Terms or a SaaS Agreement, You understand and agree that Proctorio provides these Services and Content to You on an "AS IS" and "AS AVAILABLE" basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, and except as otherwise stated in these Terms or a SaaS Agreement, THE PROCTORIO ENTITIES DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
Except as otherwise stated in these Terms or a SaaS Agreement, the Proctorio Entities make no warranty and disclaim all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security, or reliability of the Services or Content; (ii) any harm to Your computer system, loss of data, or other harm that results from Your access to or use of the Services or Content; (iii) the deletion of, or the failure to store or to transmit, any Content and other communications maintained by the Services; and (iv) whether the Services or Content will meet Your requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from the Proctorio Entities or through the Services or Content, will create any warranty not expressly made herein.
B. Links
The Services may contain links to third-party websites or resources. You acknowledge and agree that the Proctorio Entities are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Proctorio Entities of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from Your use of any such websites or resources.
C. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AND THE PROCTORIO ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM: (i) YOUR ACCESS TO,USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES OR CONTENT; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; OR (iv) UNAUTHORIZED ACCESS, USE, OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
EXCEPT FOR INDEMNIFICATION OBLIGATIONS AS STATED IN THESE TERMS, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AUTHORIZED USERS OR THE PROCTORIO ENTITIES EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00) OR, FOR AN INSTITUTION THE AMOUNT INSTITUTION PAID TO PROCTORIO IN THE PAST TWELVE MONTHS.
THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PROCTORIO ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15. General Terms.
A. English Language.
In case of conflict, the English language version of any agreement or notice shall control.
B. U.S. Government Institution Representatives and Test Takers.
Each of the Application Documentation and the software components constituting the Application Service is a "commercial item" as defined in 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. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Application Service and the Application Documentation with only those rights set forth therein.
C. Notices. - U.S.
All notices required under an applicable U.S. SaaS Agreement shall be in writing and sent by certified mail or email; to the address provided on the SaaS Agreement, and to Proctorio, Inc. at:
Proctor.io, Inc.
7340 E Main St.,
Suite 203
Scottsdale, AZ 85257
Email: [email protected]
C. Notices. - Other
All notices required under an applicable SaaS Agreement shall be in writing and sent by certified mail or email; to the address provided on the SaaS Agreement, and to Proctorio GmbH at:
Proctorio GmbH
Lindleystraße 8A
60314 Frankfurt am Main
Germany
Email: [email protected]
D. Assignment; Delegation.
If You entered into a SaaS Agreement with Proctorio, You may assign Your rights and duties under the SaaS Agreement, with thirty days prior written notice to Proctorio. Proctorio may assign any SaaS Agreement, without consent, in the event of a change of control event. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
E. Payment; Refunds.
To the extent the Services or any portion thereof is made available for any fee or through a subscription, your access will be granted following payment of the applicable fees to Company. Your account and access to the Services may be suspended in the event of non-payment of applicable fees. You represent and warrant to Company that such payment information is true and that you are authorized to use the payment instrument. If You are using a payment instrument held in the name of a third party, you agree to communicate Proctorio's policy on payments and refunds set forth in this Section 15(E) to such third party. For recurring subscriptions, you will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
If your access to the Services is not under an Institution SaaS contract, your payments are due under the a pay as you go, End User-pay model. This means that You are invoiced by the Company based on the then-stated fees associated with such usage. When you create your account, you will have three payment options: (1) put a card on file with the Company, (2) accept monthly invoices, or (3) End User-pay per usage. Option (2) is only available if you complete an addendum document with the Company.
In the event an Institution's payment method stops working for any reason, the Institution's payment method will automatically revert to End User-pay, meaning the End User will become directly financially responsible for their access to the Services. In that circumstance, Institution understands and agrees that it shall be solely and completely responsible for any and all requests from End Users for refunds. Institution further agrees to hold harmless, indemnify, and, at Proctorio's option, defend Proctorio from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from any claims from any End User resulting from any failure of Institution's payment method with Proctorio for the Services.
All payments are nonrefundable. In certain circumstances, we may provide a refund to an End User who purchases the Services directly from Proctorio who can demonstrate that they no longer require the Services because they either (1) dropped the program which required use of the Services, or (2) are no longer enrolled in an Institution. Should You believe you are entitled to a refund because either of these circumstances apply to You, please contact our support team within 90 days at [email protected].
If You, or the third party payment instrument holder, see a charge on a card or bank statement for a purchase from Proctorio that You did not make, please first check with your family and friends to see if they made the purchase. Once You've confirmed that the charge was not made by anyone You know, please report the charge to our support team at [email protected] within 90 days of the transaction.
The amount and the decision to provide a refund will be made by Proctorio in its sole and absolute discretion. If You receive a refund for any reason, Proctorio reserves the right to terminate Your access to the relevant Services.
Proctorio may suspend or cancel payment or refuse a refund request if we find evidence of fraud, abuse, or unlawful or other manipulative behavior.
F. Advertising.
If You entered into a SaaS Agreement with Proctorio, and gave prior written consent, we may reference and use Your name and trademarks (only in a manner consistent with Your brand requirements and such use subject to Your prior review and approval), and disclose Proctorio's services for business development and marketing efforts, including on our website. Proctorio will not use any Customer Content to advertise or market to students or their parents. Proctorio does not sell or otherwise transfer your data to any third party except as specifically stated in these Terms or Privacy Policy.
G. Independent Contractors.
You and Proctorio will, at all times, act as independent contractors, and nothing contained in these Terms, or any other agreement, will be construed or implied to create an agency, partnership, or employer and employee relationship.
H. Waiver and Severability.
The failure of Proctorio or You to enforce any right or provision of these Terms, or any other applicable agreement, will not be deemed a waiver of such right or provision. If any provision of these Terms, or any other applicable agreement, is held to be invalid or unenforceable, then that provision will be limited or eliminated to the minimum extent necessary, and the remaining provisions of these Terms will remain in full force and effect.
I. Governing Law and Venue. - Other
These Terms, any action related thereto, and all other agreements between You and Proctorio, unless otherwise stated, will be governed by Delaware State Law without regard to or application of its conflict of law provisions or Your state or country of residence. All claims for injunctive relief and the administration of any arbitration proceedings shall be brought and/or conducted solely in Maricopa County, Arizona. You consent to the jurisdiction and venue of any such proceedings and waive any objection as to an inconvenient forum.
I. Governing Law and Venue.
These Terms, any action related thereto, and all other agreements between You and Proctorio, unless otherwise stated, will be governed exclusively by German law to the exclusion of the UN Sales Convention. All claims for injunctive relief and the administration of any arbitration proceedings shall be brought and/or conducted solely in the place of business of the Company. You consent to the jurisdiction and venue of any such proceedings and waive any objection as to an inconvenient forum.
J. Dispute Resolution. - U.S.
Any dispute, controversy or claim arising out of or relating to the Services and/or these Terms shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules (including the Optional Rules for Emergency Measures of Protection) of the American Arbitration Association, which shall administer the arbitration in Maricopa County, Arizona. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. A single qualified arbitrator shall be appointed in accordance with the Commercial Arbitration Rules (including the Optional Rules for Emergency Measures for Protection) of the American Arbitration Association. Such qualified arbitrator shall be a member of the Arizona State Bar Association and have at least ten (10) years of experience in resolving corporate disputes related to software technologies. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Notwithstanding anything to the contrary, this Section shall not prevent a party from seeking a temporary or preliminary injunctive order from a court of competent jurisdiction in cases of irreparable harm.
J. Dispute Resolution. - Other
Any dispute, claim or controversy arising out of or in connection with the Services or these Terms shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the "Rules") by a panel of three arbitrators. Each party to the arbitration proceedings shall select one arbitrator, and those two arbitrators shall select the third arbitrator, all three to be appointed in accordance with the Rules. No award or procedural order made in the arbitration shall be published; however, any arbitration award shall be in writing and shall include findings of fact and conclusions of law. Neither the Emergency Arbitrator Provisions nor the Expedited Procedure Provisions shall apply. All Arbitration proceedings shall be conducted in the English language. Notwithstanding anything to the contrary, this Section shall not prevent a party from seeking a temporary or preliminary injunctive order from a court of competent jurisdiction in cases of irreparable harm.
K. Entire Agreement.
If You entered into a SaaS Agreement with Proctorio, the SaaS Agreement, these Terms, Proctorio's Acceptable Use Policy, and Proctorio's Privacy Policy are the entire and exclusive agreements between Proctorio and You regarding the Services (excluding any services for which You have an additional agreement with Proctorio). In the event of a conflict in the terms and conditions as set forth in these agreements, the following Order of Precedence shall apply: first, the SaaS Agreement; second, these Terms; third, the Privacy Policy; and fourth, the Acceptable Use Policy. Any amendment to a SaaS Agreement must be in writing made by the Parties, or their authorized representatives.
If You are not a party to a SaaS Agreement, these Terms, Proctorio's Privacy Policy, and the Acceptable Use Policy are the entire and exclusive agreement between Proctorio and You regarding the Services, and these Terms supersede and replace any prior agreements between Proctorio and You regarding the Services.
L. No Third Party Beneficiaries.
Other than members of the group of companies of which Proctorio is the parent, no other person or company will be a third party beneficiary to the Terms.
