Terms and Conditions
IMPORTANT: Read these Terms and Conditions carefully before using any
inFocus Test Product
When you use any of the InFocus test products you are accepting these Terms and Conditions and you acknowledge that you have read this Agreement, understand it and agree to be bound by all of its terms. If you do not agree with these terms and conditions or if you do not have the authority to enter into this Agreement, then you do not have the right to use any inFocus test product and you are expressly prohibited from such use.
Section 1. Definitions
The following capitalized terms shall have the following meanings whenever used in this Agreement.
a. "Agreement" shall mean these terms and conditions.
b. "Content" shall mean the software, audio, video, documents, products and services contained made available to the Licensee in the course of using the Service;
c. "Intellectual Property Rights" shall mean all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
d. "Licensee" shall mean the Master Licensee and, if you are entering into this Agreement on behalf of a legal entity, all users from that entity.
e. "Licensee Data" shall mean all information provided or submitted by Licensee to the Service in the course of using the Service;
f. "Licensor" shall mean National Center for Housing Management, Inc. whose principal place of business is 333 North First Street, Suite 305, Jacksonville Beach, FL 32250-6939.
g. "Log-In Information" shall mean user names, passwords, and/or authorization codes used to access the Service;
h. "Master Licensee" shall mean you, the individual who has completed this form on behalf of yourself or an organization for which you have the authority to bind to this Agreement
i. "Service" shall mean the Licensor's website(s) and the online service, including offline services such as customer and technical support.
j. "Test Results" shall mean the numeric and/or written assessments generated by the Service as a result of an authorized Test Taker's use of the Service pursuant to this Agrement.
k. "Test Taker" shall mean you, if you are an individual using the system solely for the purposes of taking one or more online test but not the individual or entity that has licensed the Service for employment or similar purposes. A Test Taker shall abide by all terms and conditions as those of the Licensee except it is understood that he or she has not purchased (or is not purchasing) a license to the Service for said purposes.
Section 2. License
a. Licensor hereby grants Licensee a limited, non-exclusive, revocable, non-transferable, right to use the Service, for internal business purposes only. Licensor reserves all rights not expressly granted in this Agreement.
b. Use of the Service by Licensor's direct competitors is prohibited, except with Licensor's prior written consent.
c. Licensee shall not:
i. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Service or the Content available to any third party in any way.
ii. modify or make derivative works based upon the Service or the Content;
iii. create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or
iv. reverse engineer or access the Service in order to:
a) build a competitive product or service,
b) build a product using similar ideas, features, functions or graphics of the Service, or
c) copy any ideas, features, functions or graphics of the Service
v. interfere with or disrupt the integrity or performance of the Service or the data contained therein; or
vi. attempt to gain unauthorized access to the Service or its related systems or networks. or
vii. use the Service in contravention of any term or condition of this Agreement.
Section 3. Responsibilities
a. Licensee is responsible for all its activity occurring under this License.
b. Licensee shall provide Licensor with accurate information regarding the number of Test Takers accessing the Service at the direction of the Licensee or through codes provided by the Licensor to the Licensee.
c. Licensee shall not use the Service for employees or candidates for any third-party organizations without Licensor's express written consent and permission.
d. Licensee shall abide by all applicable local, state, and federal laws in connection with use of the Service.
e. Licensee indemnifies Licensor against Licensee's misuse or abuse of the Service.
f. Licensee shall notify Licensor immediately of any unauthorized use or any known or suspected breach of security, notify Licensor immediately, and use all reasonable efforts to stop any known or suspected copying or distribution of Content.
g. Licensee shall not allow an unauthorized third party to gain access to the Service.
h. Licensee shall keep all Log-In Information confidential.
Section 4. Test Results
Licensor shall communicate Test Results to the Licensee. Licensor shall not be responsible or liable for the deletion, destruction, damage, loss or failure to store any Test Result after it has been communicated to the Licensee. Licensor reserves the right to withhold, remove and/or discard Test Results without notice for any breach, including, without limitation, non-payment. Licensor shall have the right in perpetuity to store and retain the Test Results, to use said Test Results for internal business purposes, and to use the Test Results in aggregate with the test results from other test takers for promotional, educational, or any other business purpose, provided however, that the Licensor shall not divulge any individual Test Result of without the expressed written permission of the Licensee. Licensor shall have no obligation or duty to report Test Results directly to any Test Taker or any other individual or party except the Licensee.
Section 5. Copyright
All rights granted are in accordance with the patent and copyright laws of the United States of America.
All Content is the property of Licensor, or has been licensed to Licensor, and is protected by international copyright and trademark laws. Licensee has no ownership of the Content. Licensee may not copy, display, create derivative works from, transmit, modify, display, or sell any information, products or services obtained from the Service, except as expressly permitted under applicable law or as described in these Terms and Conditions.
Section 6. Intellectual Property Ownership
Licensor shall own all right, title and interest, including all related Intellectual Property Rights, in and to Licensor's technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee or any other party relating to the Service. This Agreement is not a sale and does not convey to Licensee any rights of ownership in or related to the Service, Licensor's technology or the Intellectual Property Rights owned by Licensor. Licensor's name, Licensor's logos, and the product names associated with the Service are trademarks of Licensor or third parties, and no right or license is granted to use them.
Section 7. Privacy Policy
Licensor shall use reasonable efforts to protect the privacy of Licensee information. Licensees may opt out of receiving marketing communications by sending an "unsubscribe" request email to the contact email provided on the InFocus website, contacting Infocus Customer service at the phone number provided on the website, or by writing to National Center for Housing Management, Inc. at the address provided in the Notice section of this Agreement. Due to the nature of online subscription services, Licensor occasionally may need to notify all users of the Service (whether or not they have opted out) of important announcements regarding the Service. Licensor reserves the right to modify its policies in its reasonable discretion from time to time.
Section 8. Payment of Fees
a. Master Licensee shall pay all fees and invoices immediately on receipt, in accordance with Licensor's payment terms listed on its invoices or in its on-line payment instructions. All payment obligations are noncancelable and all amounts paid are nonrefundable. Licensor reserves the right to modify its fees and to introduce new charges at any time without prior notice. Licensor charges and collects in advance for use of the Service. Licensor's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Licensor's income. All bulk-pricing and custom pricing terms are confidential, and shall not be disclosed to any third parties.
b. Licensee agrees to provide Licensor with complete and accurate billing and contact information. This information shall include Licensee's legal entity name, street address, e-mail address, and name and telephone number of an authorized billing contact. Licensee agrees to update this information within thirty days of any changes.
c. Licensor reserves the right to suspend or terminate this Agreement and Licensee access to the Service in the event that the account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Licensee will continue to be charged for during any period of suspension. If Licensee or Licensor initiates termination of this Agreement, Licensee will be obligated to pay the balance due on Licensee's account. Licensee agrees that Licensor may charge such unpaid fees to Licensee's credit card or otherwise bill License for such unpaid fees.
d. Licensee shall not be required to pay fees for any free trial subscription or use of the Service extended by Licensor to a Licensee, however any such free trial subscriptions or use of the Service may be terminated by Licensor at any time and at Licensor's sole discretion.
e. The Master Licensee warrants and represents that he or she has both the right and authority to enter into this Agreement. In the event that the Master Licensee does not have the right or authority to enter its organization into this Agreement, then Master Licensee hereby personally accepts full financial liability and legal responsibility of payment for this Agreement.
Section 9. Commencement
This Agreement commences upon the first use of the Service by the Licensee.
Section 10. Termination of Service for Cause
Any breach of Licensee's payment obligations or unauthorized use of Licensor's Service shall be deemed a material breach of this Agreement. The unauthorized use of any Log-In Information, either with or without Licensee's knowledge, shall be deemed a breach of this Agreement, and may constitute a violation of Licensee's copyrights. User is responsible for maintaining the security and confidentiality of all Log-In Information, and for preventing access to the Product and/or the Content by unauthorized persons. Unauthorized access to or use of the Product and/or the Content by someone using User's Log-In information may be attributed to User. Licensor, in its sole discretion, may terminate Licensee's password, account or use of the Service if Licensee breaches or otherwise fails to comply with this Agreement. In addition, Licensor may terminate a free account at any time in its sole discretion.
Section 11. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Licensor represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Licensor documentation under normal use and circumstances. Licensee represents and warrants that it has not falsely identified itself nor provided any false information to either gain access to the Service or to obtain preferential pricing and that all information provided is correct.
Section 12. Indemnification
a. Licensee covenants and agrees that it shall indemnify and hold Licensor, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
i. a claim alleging that use of the Licensee Data infringes the rights of, or has caused harm to, a third party;
ii. a claim, which if true, would constitute a violation by Licensee or Licensee's representations and warranties; or
iii. a claim arising from the breach by Licensee of this Agreement, provided in any such case that Licensor
a) gives written notice of the claim promptly to Licensee;
b) gives Licensee sole control of the defense and settlement of the claim (provided that Licensee may not settle or defend any claim unless Licensee unconditionally releases Licensor of all liability and such settlement does not affect Licensor's business or Service);
c) provides to Licensee all available information and assistance; and
d) has not compromised or settled such claim.
b. In the event Licensee is financially unable to fulfill these obligations or fails to do so, Licensor may defend such claims, proceedings or suits, and any and all expenses incurred in connection therewith by Licensor, including attorney's fees, or judgments recovered against Licensor arising therefrom.
Section 13. Disclaimer of Warranties
LICENSOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. LICENSOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT:
a. THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA,
b. THE SERVICE WILL MEET LICENSEE REQUIREMENTS OR EXPECTATIONS,
c. ANY STORED DATA WILL BE ACCURATE OR RELIABLE,
d. THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS,
e. THE SERVICE AND/OR TESTS PROVIDED THROUGH THE SERVICE MEET THE REQUIREMENTS OF ANY FEDERAL, STATE, OR LOCAL LAW WITH RESPECT TO EMPLOYMENT MATTERS OR THE REQUIREMENTS OR PROVISIONS OF ANY LABOR AGREEMENTS,
f. ERRORS OR DEFECTS WILL BE CORRECTED, OR
g. THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO LICENSEE STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY LICENSOR AND ITS LICENSORS.
h. IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR CONTENT PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, AUTHORIZED USE, PERFORMANCE OR NONPERFORMANCE OF THIS SITE, EVEN IF LICENSOR WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, UNDER STATUTE, IN EQUITY, AT LAW OR OTHERWISE.
i. LICENSOR SHALL NOT BE LIABLE FOR ANY DELAY OCCASIONED BY AN ACT OF GOD OR THE PUBLIC ENEMY, OR; BY RIOT, INSURRECTION, STRIKES, LABOR DISPUTES, OR ANY FAILURE OR DELAY BY ANY INTERNET SERVICE PROVIDER, INTERNET CONTENT DELIVERY SERVICE OR AGENCY FOR ANY ACT, DELAY, OR OMISSION DUE TO THEIR NEGLIGENCE.
j. LICENSOR'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, LOSS OF DATA, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Section 14. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM LICENSEE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 15. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to Licensee.
Section 16. Compliance with EEOC Guidelines
a. The Equal Employment Opportunities Commission has guidelines for the hiring process with which you should not only be familiar, but follow as well. Some but not all of the guidelines are summarized herein for informational purposes only. However, you should not rely upon this summary and should consult the actual guidelines for detailed information.
b. Adverse Impact:
i. It is most important that your process have no adverse impact on any protected minorities. Consult the EEOC guidelines for a complete list and description of protected classes. In addition, the Americans with Disabilities Act states that you cannot ask any questions that might intentionally or unintentionally uncover any physical or mental disability.
c. Pool of Candidates:
i. The EEOC suggests that you should have a pool of candidates from which to choose rather than just one or two people.
d. Objectivity:
i. The guidelines suggest that your interview process must be objective rather than subjective. They point out that you can accomplish this by having more than one interviewer. Two interviewers can be present in the same interview or they can conduct two separate interviews. The criteria must be clear and the interviews must be consistent.
e. Tests:
i. The use of a pre-employment "test" is one way to assure objectivity in the interview process. The test, or tests that you choose must be reliable (you can depend upon the results to be accurate) and consistent in their findings, while showing no adverse impact on the protected minorities. The guidelines further suggest that if you use a test, the same test must be administered to all of the applicants. The test you choose should be both EEOC compliant and validated. Here is the actual text:
a) Section 703(h) of the Act provides that "notwithstanding any other provision of this subchapter, it shall not be an unlawful practice for an employer . . . to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin."
ii. In order for an individual to be an applicant in the context of the Internet and related electronic data processing technologies, the following must have occurred: (1) The employer has acted to fill a particular position; (2) The individual has followed the employer's standard procedures for submitting applications; and (3) The individual has indicated an interest in the particular position.
a) Online tests, including tests of specific or general skills, are selection procedures rather than recruitment under UGESP because the test results are used as "a basis for making employment decisions." Employers and recruiters who use such tests should maintain records or other information "which will disclose the impact which its tests ... have upon employment opportunities of persons by identifiable race, sex or ethnic group." 42 U.S.C.2000e-2(k)(1)(A)(i).
Section 17. Notice
a. Licensor may give notice by means of a general notice on the Service, electronic mail to Licensee's e-mail address on record in Licensor's account information, or by written communication sent by first class mail or pre-paid post to Licensee's address on record in Licensor's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Licensee may give notice to Licensor (such notice shall be deemed given when received by Licensor) at any time by any of the following: letter sent by confirmed facsimile to Licensor; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Licensor at the following addresses (whichever is appropriate): National Center for Housing Management, Inc., 333 North First Street, Suite 305, Jacksonville Beach, FL 32250-6939 addressed to the attention of President.
18. Modification
Licensor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Licensee is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Licensee's consent to such changes.
19. Assignment; Change in Control.
This Agreement may not be assigned by Licensee without the prior written approval of Licensor but may be assigned without Licensee's consent by Licensor to:
a. a parent or subsidiary,
b. an acquirer of assets, or
c. a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Licensee that results or would result in a direct competitor of Licensor directly or indirectly owning or controlling 50% or more of Licensee shall entitle Licensor to terminate this Agreement for cause immediately upon written notice.
20. Rule of Construction
Licensee is advised to have its legal counsel review this Agreement prior to acceptance and agreement. As such, the rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or of any modifications amendments or exhibits to this Agreement.
21. General
a. This Agreement shall be governed by Florida law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Jacksonville, Florida.
b. Licensee shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Service.
c. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
d. No joint venture, partnership, employment, or agency relationship exists between Licensee and Licensor as a result of this agreement or use of the Service.
e. The failure of Licensor to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Licensor in writing.
f. This Agreement comprises the entire agreement between Licensee and Licensor and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.