PSYMARK TERMS OF USE
PLEASE READ THE FOLLOWING CAREFULLY. THESE TERMS GOVERN YOUR USE OF PSYMARK PRODUCTS, AND CONTAIN IMPORTANT OBLIGATIONS THAT YOU UNDERTAKE TO USE THIS PRODUCT WITH EXAMINEES YOU ARE EVALUATING, INCLUDING MINORS. YOU MUST CLICK TO ACCEPT THESE TERMS IN ORDER TO USE PSYMARK PRODUCTS.
Psymark. and its subsidiaries and affiliates (“Psymark”) are making this software application available to you for use on an Apple iPad only (the “Software”). The Software is downloaded or delivered to you through the Apple App Store. Your use of the Software is subject to all terms and policies (the “Terms”) which you must click to accept. In addition, the Terms are posted on our website and in most cases, emailed to you once you set up a logon ID and password. In addition, you should review our [Psymark Privacy Policy 11-2023 ], and use of the Software constitutes acceptance of the Privacy Policy.
BY USING THE TEST, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF USE AND AGREE TO BE BOUND BY THEM. IN ADDITION, YOU REPRESENT AND ARE REQUIRED TO PROVIDE EVIDENCE THAT YOU ARE LICENSED OR CREDENTIALED OR UNDER THE SUPERVISION OF A LICENSED OR CREDENTIALED PROFESSIONAL TO ADMINISTER THE TEST IN ALL JURISDICTIONS IN WHICH YOU WILL ADMINISTER IT. YOU AGREE TO USE THE TEST IN A MANNER CONSISTENT WITH ALL APPLICABLE LAWS AND REGULATIONS AND IN ACCORDANCE WITH THE TERMS OF USE. DO NOT USE THE TEST IF AT ANY TIME YOU DO NOT AGREE WITH ANY PART OF THE TERMS.
1. Changes in Terms of Use
Psymark has the right to change or modify these Terms at any time, including the Privacy Policy applicable to your use of the Software. Such changes or modifications shall be effective immediately upon notice to you, which may be given by notifications generated by the Software, to which you must agree, or by electronic or conventional mail. Any use of the Software by you subsequent to such notice shall be deemed to constitute your acceptance of such changes or modifications.
2. Your Right to Use the Software
You are granted a limited, personal, non-exclusive, non-assignable, and non-transferable license to access and use the Software for use in conjunction with an examinee whom you are evaluating. You may not adapt, download, revise, broadcast, reverse engineer, duplicate, publish, modify, disseminate, display, perform, transfer, or otherwise distribute any content or other material using the Software, unless specifically authorized by Psymark or these Terms.
3. Examinee Data
The Software requires that you input certain information in order to administer the test. You represent that you have the consent of your examinee to input all of the information provided, including by any guardian on behalf of any minors for whom the Software is administered. You agree to comply with all applicable laws in putting in the Examinee Data and administering the test. Psymark has no obligation to screen, edit, correct or review such information prior to its storage in the Software. All such data shall be owned by you or your examinee, subject only to the data aggregation performed by Psymark on a non-identifiable basis, as further disclosed below.
Except as provided in these Terms, Psymark shall not disclose any Examinee Data to anyone other than Psymark’s employees or subcontractors who are bound by confidentiality obligations and who need to know the same to perform Psymark’s obligations hereunder.
Psymark collects the minimum amount of personally identifiable information (PII) required for aggregation and standardization. The demographic information that is collected by the Software and provided to you may be used without having to identify any single examinee. You are encouraged to consider utilizing an examinee number or a nickname for each of your examinees so that the information provided cannot be used to identify them. It is Psymark’s policy to limit access to its tests and content through secured interfaces that require user authentication and to have in place reasonable support measures to protect PII.
To the fullest extent permitted by applicable laws, in no event shall Psymark have any responsibility or liability for the examinee data (or the loss thereof for any reason) or for any claims, damages, or losses resulting from their use (or loss) and/or appearance on the Software. You are encouraged and are responsible to make copies or backups of any information that you input into the Software, including to comply with any licensing or regulatory requirements related to your administration of the test or any professional duty to maintain the records related to your examinee.
BY SUBMITTING EXAMINEE DATA, YOU GRANT PSYMARK THE ROYALTY-FREE, PERPETUAL, IRREVOCABLE, NON-EXCLUSIVE RIGHT AND LICENSE TO USE, REPRODUCE, MODIFY, ADAPT, PUBLISH, TRANSLATE AND CORRELATE THE EXAMINEE DATA (IN WHOLE OR IN PART) SO LONG AS SUCH EXAMINEE DATA CANNOT BE UTILIZED TO IDENTIFY ANY EXAMINEE OR THE RESULTS OF THEIR ADMINISTRATION OF THE SOFTWARE. THE PURPOSE OF THE USE OF THIS AGGREGATED DATA IS TO IMPROVE THE SOFTWARE AND TO PROVIDE ADDITIONAL INSIGHTS INTO CORRELATIONS BASED ON THE EXAMINEE DATA, BUT EXCLUDING ANY IDENTIFYING INFORMATION. THE AUTHORIZED USE OF THIS EXAMINEE DATA IS FURTHER GOVERNED BY OUR PRIVACY POLICY.
4. Your Responsibilities
You shall be responsible for your use of the Software (and on behalf of anyone for whom you administer it, and for any business, commercial and legal consequence, evaluation, result or decision you make based upon the Software. You also retain responsibility for security for access to the Software, including guarding your internet and network access to the Software, and for safekeeping of your logon and password credentials. You must also maintain a high-speed connection to the internet and acknowledge that your failure to do so may cause a loss of data from any test which is administered. Psymark shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by you in accessing the Software.
5. Prohibited Uses; All Other Rights Reserved
Use of the Software for any purpose other than as contemplated in these Terms is a violation of your license to use the Software, as well as Psymark’s copyright and proprietary rights. Psymark does not guarantee the accuracy or completeness of any information or content. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. All rights not expressly granted herein are reserved by Psymark.
6. Fees and Payment
Your Psymark license will continue and automatically renew until terminated. To purchase the Psymark license you must have Internet access and an iPad and provide us with one or more Payment Methods. "Payment Method" means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party. You must cancel your license before it renews in order to avoid billing of the licensing fees for the next billing cycle to your Payment Method (see "Cancellation" below).
We may offer a number of plans for licensing, including licenses sold through third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties.
Promotional Offers. We may from time to time offer special promotional offers, plans or licensing (“Offers”). Offer eligibility is determined by Psymark at its sole discretion and we reserve the right to revoke an Offer and put your account on hold in the event that we determine you are not eligible. The eligibility requirements and other limitations and conditions will be disclosed when you sign-up for the Offer or in other communications made available to you.
7. Billing and Cancellation
Billing Cycle. The license fee for the Psymark tests and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged to your Payment Method. The length of your billing cycle is one year. Licensing fees are fully earned upon payment. We may authorize your Payment Method in anticipation of licensing or service-related charges through various methods. If you purchased a Psymark license using your account with a third party as a Payment Method, you can find the billing information about your Psymark license by visiting your account with the applicable third party.
Payment Methods. To use the Psymark tests, you must provide one or more Payment Methods. You authorize us to charge any Payment Method associated to your account in case your primary Payment Method is declined or no longer available to us for payment of your licensing fee. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
Cancellation. You can cancel your Psymark license at any time, and you will continue to have access to the Psymark test(s) through the end of your billing period. If you cancel your membership, your account will automatically close at the end of your current billing period. If you purchased a Psymark license using your account with a third party as a Payment Method and wish to cancel your Psymark license, you may need to do so through that third party, for example by visiting your account with the applicable third party and turning off auto-renew, or unsubscribing from the Psymark test(s) through that third party.
Changes to the Price and Licensing Plans. We may change our licensing plans and the price of our service from time to time; however, any price changes or changes to your license will apply no earlier than 30 days following notice to you. If you do not wish to accept the price change or change to your licensing plan, you can cancel your license before the change takes effect.
No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used licensing periods. Following any cancellation, however, you will continue to have access to the test(s) through the end of your current billing period. At any time, and for any reason, we may provide a refund, discount, or other consideration to some or all of our customers ("credits"). The amount and form of such credits, and the decision to provide them, are at our sole and absolute discretion. The provision of credits in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide credits in the future, under any circumstance.
8. Term and Termination
The Term of allowable use shall begin on the date or when you accepted these Terms. Your use shall be immediately terminated upon any material breach of these Terms. Upon termination of these Terms for any reason, all Customer data will be removed from Psymark’s servers after 30 days. You agree that Psymark will not be liable to you or any third party for any modification, suspension, or discontinuation of the Software, or any part thereof. Upon termination for any reason, you must cease all access to the Software. All provisions of these Terms as to limitation and disclaimer of warranties, limitation of liability, Psymark’s ownership rights and your representations and indemnities shall survive termination.
9. Intellectual Property Rights
All rights, title and interest to the Software and any supporting software are the proprietary property of Psymark, and are protected by U.S. and international copyright, trademark and other intellectual property laws. The reproduction, redistribution, modification or publication of any part of the Software without the express written consent of Psymark and/or its licensors is strictly prohibited. Unless otherwise indicated, trademarks that appear on this Software are trademarks of Psymark or its affiliates. You agree not to display, disparage, dilute, or taint our trademarks, use any confusing similar marks or use our trademarks in such a way that would misrepresent the ownership of such marks. Any permitted use of our trademarks by you shall be to the benefit of Psymark.
10. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE TEST IS AT YOUR OWN RISK. THE TEST IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU ACKNOWLEDGE AND AGREE THAT NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARE MADE BY PSYMARK, AND THAT PSYMARK EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT;
(b) PSYMARK MAKES NO WARRANTY THAT (i) THE TEST WILL MEET YOUR REQUIREMENTS; (ii) THE TEST WILL BE UNINTERRUPTED, AVAILABLE FOR ANY LENGTH OF TIME, SECURE, OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TEST WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY EVALUATIONS, RESULTS, CONCLUSIONS, DIAGNOSES OR TREATMENTS PRESCRIBED AS A RESULT OF THE TEST WILL BE ACCURATE OR MEET YOUR EXPECTATIONS; AND (v) ANY ERRORS OR DEFECTS IN THE SERVICE WILL BE CORRECTED.
11. Limitation of Liability
IN NO EVENT SHALL PSYMARK OR ITS EMPLOYEES, AGENTS, LICENSORS, OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE LOSS OF DATA AND/OR THE USE OR THE INABILITY TO USE THE TEST; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE TEST; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) ANY OTHER MATTER RELATING TO THE TEST.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, the limitations above may not apply to you.
12. Indemnification
You agree to indemnify and hold Psymark and its subsidiaries, affiliates, officers, agents, directors, licensors, contractors and employees harmless from any claims, actions, costs, liabilities, expenses and damages, including reasonable attorneys’ fees and expenses, made against Psymark by any third party due to or arising out of your use of the Software, any data which you input into the Software, any results or treatments you utilize, recommend or prescribe as a result of your use of the Software, your breach of any representation, warranty or obligation, or your violation of these Terms.
13. Submissions
Psymark welcomes suggestions and comments regarding the Software. Any comments or suggestions submitted to the Software or Psymark, either online or offline, will become Psymark’s property upon their submission, and all right, title and interest to any developments or features undertaken as a result of any suggestions shall be wholly owned by Psymark. If you do not agree to this provision, do not make any suggestions or other submissions to Psymark. The intent of this provision is to avoid misunderstandings when existing or future projects developed by Psymark appear to others to be similar to suggestions or submissions voluntarily made to Psymark.
14. General Information; Governing Law
These Terms constitute the entire agreement between you and Psymark, govern your use of the Software, and supersede any prior agreements between you and Psymark concerning the Software. These Terms and the relationship between you and Psymark will be governed by the laws of the State of California without regard to its conflict of law provisions. You and Psymark agree to submit to the personal and exclusive jurisdiction of the courts located within the County of Los Angeles, State of California. The failure of Psymark to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action.