Welcome to MeritFirst. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). Please note that your access to the Services may be subject to a separate agreement between MeritFirst and the hiring company (“Hiring Company”) who may have directed you to use the Services as part of your application. If you have any questions related to the role for which you are applying, please contact the Hiring Company. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Email: team@meritfirst.us
These Terms of Use (the “Terms”) are a binding contract between you and MERIT FIRST, INC. (“MeritFirst,” “we” and “us”). Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. These Terms include the provisions in this document as well as those in the Privacy Policy. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.
Please read these Terms carefully. They cover important information about Services provided to you and any charges, taxes, and fees we bill you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site located at standardaptitude.com, send you an email, and/or notify you by some other means.
If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
MeritFirst takes the privacy of its users very seriously. For the current MeritFirst Privacy Policy, please click here. Any references to “Personal Information” in these Terms will have the meaning set forth in the Privacy Policy.
The Children's Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 16 years of age. We do not knowingly collect or solicit personally identifiable information from children under 16 years of age; if you are a child under 16 years of age, please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under 16 years of age, we will delete that information as quickly as possible. If you believe that a child under 16 years of age may have provided us personal information, please contact us at team@meritfirst.us.
You may be required to sign up for an account, select a password and user name (“MeritFirst User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your MeritFirst User ID a name that you do not have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
You represent and warrant that you are an individual of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you're agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization's or entity's behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren't authorized to use the Services. We can't and won't be responsible for your using the Services in a way that breaks the law.
You will not share your MeritFirst User ID, account or password with anyone, and you must protect the security of your MeritFirst User ID, account, password and any other access tools or credentials. You're responsible for any activity associated with your MeritFirst User ID and account.
You also agree that you will not share any data or information that you create while using the Service with any other party. Any task, statement or information you access on the Services (including exam materials provided to you) is MeritFirst's confidential information and must not be shared with any other party.
As part of the Services, you may receive communications through the Services, including messages that MeritFirst sends you (for example, via email or SMS). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving messages. By signing up for the Services and providing us with your wireless number, you confirm that you want MeritFirst to send you information that we think may be of interest to you, which may include MeritFirst using automated dialing technology to text you at the wireless number you provided, and you agree to receive communications from MeritFirst, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from MeritFirst. You agree to indemnify and hold MeritFirst harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to your breach of the foregoing.
You represent, warrant, and agree that you will not provide or contribute anything, including any Content or User Submission (as those terms are defined below), to the Services, or otherwise use or interact with the Services, in a manner that:
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
When participating in an assessment, test, quiz, or interview (“Exam”), you agree to treat all related content, including questions, materials, prompts, and discussions (collectively, “Exam Materials”), as strictly confidential. You may not download, copy, capture, share, or otherwise extract any Exam Materials, unless explicitly permitted in writing by MeritFirst or instructed otherwise in official Exam guidelines.
Your Exam responses must be created entirely by you, without assistance from others or the use of unauthorized tools. Use of external resources is permitted only if expressly allowed by the interviewer or Exam instructions. You also agree not to incorporate or disclose any proprietary, trade secret, or otherwise confidential information belonging to a third party, including any information from past or current employers or clients. If you recognize or have encountered any portion of the Exam Materials before your session, you are required to notify MeritFirst immediately.
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including MeritFirst's) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that MeritFirst owns the Services. You won't modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission”. Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) that violate any law.
By participating in an Exam, you consent to MeritFirst recording your responses, audio, video, and any activity in connection with the Services. You also authorize MeritFirst to share recordings and information related to your Exam performance, including your responses, scores, and other outcome data (“Exam Results”), in accordance with its Privacy Policy. MeritFirst shall own all rights, title, and interest in the Exam, the Exam Materials, and the Exam Results (collectively, the “Assigned Content”), and any derivative works arising from them, including all associated intellectual property rights. You hereby make and agree to make all assignments to MeritFirst necessary to effectuate and accomplish MeritFirst's ownership in and to the Assigned Content.
In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions (see below for more information). Please note that all of the following licenses are subject to our Privacy Policy to the extent they relate to User Submissions that are also your personally-identifiable information.
By submitting User Submissions through the Services, you hereby do and shall grant MeritFirst a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Certain features of the Services allow you to share information with others, including through your social networks or other Third Party Accounts. When Content is authorized for sharing, we will clearly identify the Content you are authorized to redistribute and the ways you may redistribute it, usually by providing a “share” button on or near the Content. If you share information from the Services with others through your Third Party Accounts, such as your social networks, you authorize MeritFirst to share that information with the applicable Third Party Account provider. Please review the policies of any Third Party Account providers you share information with or through for additional information about how they may use your information. If you redistribute Content, you must be able to edit or delete any Content you redistribute, and you must edit or delete it promptly upon our request.
Finally, you understand and agree that MeritFirst, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
Any information or Content transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren't liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by MeritFirst. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that MeritFirst is not responsible for such risks.
MeritFirst has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites or by any third party that you interact with through the Services. In addition, MeritFirst will not and cannot monitor, verify, censor or edit the content of any third-party site or service. We encourage you to be aware when you leave the Services and to read the terms and conditions and privacy policy of each third-party website or service that you visit or utilize. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third-party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that MeritFirst shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that MeritFirst is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release MeritFirst, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
We're always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We'll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
You're free to do that at any time by contacting us at team@meritfirst.us; please refer to our Privacy Policy, as well as the licenses above, to understand how we treat information you provide to us after you have stopped using our Services.
MeritFirst is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. MeritFirst has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
If you have deleted your account by mistake, contact us immediately at team@meritfirst.us – we will try to help, but unfortunately, we can't promise that we can recover or restore anything.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property.
Warranty Disclaimer. MeritFirst and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (MeritFirst and all such parties together, the “MeritFirst Parties”) make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the MeritFirst Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The MeritFirst Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services. THE SERVICES AND CONTENT ARE PROVIDED BY MERITFIRST (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE MERITFIRST PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO MERITFIRST IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the MeritFirst Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without MeritFirst's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Texas, without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with MeritFirst and limits the manner in which you can seek relief from MeritFirst. Both you and MeritFirst acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, MeritFirst's officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Travis County, Texas. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. MeritFirst will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. MeritFirst will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or MeritFirst may assert claims, if they qualify, in small claims court in Travis County, Texas or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND MERITFIRST WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and MeritFirst are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and MeritFirst over whether to vacate or enforce an arbitration award, YOU AND MERITFIRST WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor MeritFirst is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 907 S Congress Ave., Austin, Texas 78704 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms' arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or MeritFirst to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and MeritFirst agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Travis County, Texas, or the federal district in which that county falls.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with MeritFirst.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the MeritFirst may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and MeritFirst agree that these Terms are the complete and exclusive statement of the mutual understanding between you and MeritFirst, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of MeritFirst, and you do not have any authority of any kind to bind MeritFirst in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and MeritFirst agree there are no third-party beneficiaries intended under these Terms.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICES OFFERED BY MERIT FIRST, INC. (“MERITFIRST”). BY SIGNING AN ORDER FORM, STATEMENT OF WORK, AGREEING TO AN ONLINE SUBSCRIPTION THAT REFERENCES THESE TERMS AND CONDITIONS, OR USING THE SERVICES (EACH AN “ORDER”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY THE “AGREEMENT”). PROVISION OF THE SERVICE IS CONDITIONED ON, AND CUSTOMER'S ACCESS TO OR USE OF THE SERVICE SHALL CONSTITUTE, CUSTOMER'S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ORDER FORM, THE ORDER FORM SHALL CONTROL.
1.
Purpose.The purpose of this Agreement is to grant Customer with access to the Services (defined below) for use in Customer's job candidate examination process.
2.
Services.
2.1
Services Performance. Subject to the terms and conditions of this Agreement and the applicable Order and Customer's compliance therewith, MeritFirst will perform the services set forth in each Order, which may include access to certain platforms or products specified therein (collectively, “Services”) during the applicable Order Term (as defined below). Customer will identify the candidates that it wishes MeritFirst to assess (each, a “Candidate”) using MeritFirst's Services and examination tools (the “Exam”). Customer will also perform any obligations of Customer that may be set forth in the Order. MeritFirst will provide Customer with access to certain materials prepared by MeritFirst under this Agreement, including those relating to Exams (e.g., interview notes, Candidate assessments, Candidate performance recommendations, site content, selection criteria, technical assessments, derived data, data analytics, instructional videos, instructional materials, interview methodologies, and other similar materials) (“Exam Materials”) and certain other materials provided to Customer under this Agreement (together with the Exam Materials, the “Licensed Materials”), which shall be considered a part of the Services and governed by the terms of this Agreement. MeritFirst will provide Customer with a final report for each Candidate summarizing each Exam, as described in the Order (the “Exam Results”). Each Customer employee who accesses the Services must establish their own account for such access. Customer is solely responsible for all of Customer's activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services.
2.2
Ownership. As between the parties, MeritFirst retains all right, title, and interest in and to the Services, Licensed Materials, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by MeritFirst for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software that is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order) shall be deemed a part of the Services and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.
2.3
Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (b) modify, translate, or create derivative works based on the Services; (c) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party; (e) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any MeritFirst product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures MeritFirst may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).
2.4
Compliance. Customer (i) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.
3.
Payment Terms. Customer shall pay MeritFirst the fees set forth in the applicable Order, if any (“Fees”). Fees will be due Net 30 days after the date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Services (excluding taxes based on MeritFirst's net income). All Fees paid are non-refundable and are not subject to set-off.
4.
Term and Termination.
4.1
Term. The term of this Agreement (the “Term”) shall commence on the Effective Date, and unless earlier terminated as set forth herein, shall continue until ninety (90) days following the expiration of all Order Terms. For each Order, unless otherwise specified therein, the “Order Term” shall begin as of the effective date set forth on such Order, and unless earlier terminated as set forth herein or therein, (a) shall continue for the initial term specified on such Order (the “Order Initial Term”), and (b) following the Order Initial Term, shall automatically renew for additional successive periods of one year each (each, an “Order Renewal Term”) unless either party notifies the other party of such party's intention not to renew no later than thirty (30) days prior to the expiration of the Order Initial Term or then-current Order Renewal Term, as applicable.
4.2
Termination. Either party may terminate this Agreement or any Order for cause if the other party has breached any of its obligations under this Agreement or such Order and has failed to cure such breach within 30-days after receiving written notice to do so from the other party. Upon termination, Customer shall have no further access to the Services. Customer shall remain responsible for and, upon termination, shall promptly pay MeritFirst for all Services performed as of the date of termination. If MeritFirst terminates for Customer's material breach, Customer shall remain responsible for the Fees, if any, due for the remainder of the Agreement. If Customer terminates for MeritFirst's material breach, Customer shall receive a refund of the Fees prorated from the date of breach. Following notice of termination, MeritFirst may suspend all Services without liability of any kind or, at its sole option, require Customer to pay for such Services in advance.
4.3
Termination of License; Return of Materials. Customer's access to the Services and all licenses granted hereunder shall terminate upon the earlier of (a) ninety (90) days after completion of the Services and (b) expiration or termination of this Agreement. Customer shall return all Licensed Materials to MeritFirst upon termination of the license; provided that Customer may retain the Exam Results after termination or expiration of this Agreement. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
5
Confidentiality. During the Term, a party (“Recipient”) may be exposed to confidential or proprietary information of the other party (“Discloser”), including hiring requirements, processes, criteria, policies, priorities, resources, methods, plans, customer lists, and other business information that the Discloser designates as confidential or the Recipient knows or reasonably should know is considered by the Discloser to be confidential or proprietary in nature (“Confidential Information”). The Recipient agrees, during and after the Term, not to use any of the Discloser's Confidential Information except for the purposes of this Agreement and not to disclose such information to any third party or to assert an ownership interest in such information. Further the Recipient agrees to take all reasonable precautions to prevent unauthorized or inadvertent disclosure of such, and to be responsible for any breach of these obligations by its officers, directors, or employees. For clarification, all Licensed Materials constitute MeritFirst Confidential Information. Customer Confidential Information includes selection criteria provided to MeritFirst used by Customer to select Candidates (“Customer Criteria”), including Customer's specific hiring requirements, policies, priorities, and resources. Confidential Information does not include information available to the public without restriction on its use, information provided to the Recipient by a third party under no duty to the Discloser to maintain it in confidence, information that the Recipient is required to disclose in response to a court order or subpoena provided that to the extent legally permissible the Discloser is provided prior written notice and an opportunity to contest, information rightfully in the Recipient's possession prior to disclosure by the Discloser, or information developed by the Recipient without use of or reference to the Discloser's Confidential Information.
6.
Data Use.
6.1
Licensed Materials. Customer acknowledges that, except for any Customer Confidential Information included in the Licensed Materials, MeritFirst owns all right, title, and interest (including all intellectual property rights) in all Licensed Materials and MeritFirst Confidential Information, including without limitation in all intellectual property in and used to create the Exam Results. MeritFirst grants Customer a limited, terminable, non-transferrable license to use the Licensed Materials during the Term for Customer's own internal use solely for the purposes set forth in this Agreement; such license shall automatically terminate at ninety (90) days after the termination or expiration of this Agreement. Nothing in this Agreement or otherwise shall be interpreted or construed to grant Customer any proprietary interest in the Licensed Materials.
6.2
Customer Data. MeritFirst acknowledges that Customer owns all right, title, and interest (including all intellectual property rights) in Customer Criteria, Customer Confidential Information and Exam Results to the extent such Exam Results do not include Licensed Materials (collectively, “Customer Data”). Notwithstanding anything to the contrary, Customer acknowledges and agrees that MeritFirst may (a) internally use and modify (but not disclose) Customer Data for the purposes of (i) providing the Services and any support or consultation services to Customer and (ii) generating Aggregated Anonymous Data (as defined below), and (b) freely use and make available Aggregated Anonymous Data, during and after the Term, for MeritFirst's business purposes (including without limitation, for purposes of refining its evaluation processes, developing and promoting new product offerings, and producing white papers and other publications relating to MeritFirst's Exam ). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by MeritFirst in connection with its performance under this Agreement and from Exams and Customer's use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer or any individual Candidate.
6.3
Candidate Data.Notwithstanding anything to the contrary, MeritFirst's collections and use of information about Candidates (“Candidate Data”) will be governed by MeritFirst's Candidate Terms of Use and Privacy Policy (available at meritfirst.us/terms and meritfirst.us/privacy-policy), which may be updated by MeritFirst from time to time, and will not be considered Customer Data or Customer Confidential Information. For the purposes of Exhibit B (if applicable) MeritFirst shall be deemed the controller of the Candidate Data. MeritFirst agrees that it will not disclose to any third party any Exam Materials or Exam Results in a manner that personally identifies Candidates without the prior consent of Customer and the applicable Candidate. Additionally, MeritFirst will not disclose the identity of any Candidate and their relationship with Customer to any third party without Customer's prior consent, provided that nothing shall prohibit MeritFirst from providing its services to a third party with respect to a Candidate if such third party independently identified such Candidate.
7.
Warranty Disclaimer, Limitation of Liability.
7.1
Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MERITFIRST MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES, EXAM, OR LICENSED MATERIALS, ALL OF WHICH ARE PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MERITFIRST DOES NOT WARRANT THAT ANY OF THE ABOVE OR THE RESULTS OF THE SERVICES ARE ACCURATE OR WILL MEET CUSTOMER'S REQUIREMENTS OR WILL COMPLY WITH CUSTOMER'S POLICIES OR APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MERITFIRST HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, INTERFERENCE WITH QUIET ENJOYMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.
7.2
Limitations of Automated Outputs. The Exam may be considered an Automated Employment Decision Tool (“AEDT”) under applicable laws. The Exam Results are intended solely to support and inform Customer's broader evaluative processes of Candidates and are not intended for Candidates' use or reliance. It is not a substitute for human judgment or comprehensive review and should not be used as the sole or predominant basis for any employment-related decisions. Specifically, it is not appropriate to: (a) rely solely on a simplified output (e.g., a score, tag, classification, ranking, etc.), without considering any additional factors; (b) use a simplified output as one of several criteria, where it is weighted more heavily than any other criterion in the set; or (c) use a simplified output to overrule conclusions derived from other sources, including human evaluation.
7.3
Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSSES RELATING TO ANY OF THE SERVICES OR LICENSED MATERIALS, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR EITHER PARTY HAD BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY FOR ALL CLAIMS OF ANY KIND ARISING FROM THIS AGREEMENT EXCEED THE TOTAL FEES ACTUALLY PAID AND DUE TO MERITFIRST UNDER THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THIS LIMITATION. THE LIMITATION OF DAMAGES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK AMONG THE PARTIES, AND SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. The limitations contained in Section 7.2 shall not apply to limit a party's liability for claims resulting from such party's breach of Section 5 or for claims arising from Sections 8.2 or 8.3.
8.
Relationship and Assumption of Risk.
8.1
Independent Contractor. MeritFirst is an independent contractor. Nothing herein shall be deemed or construed to create a relationship of principal and agent or of employer and employee between the parties, or to create a partnership, joint venture, or similar relationship between the parties.
8.2
Assumption of Risk. Customer has reviewed MeritFirst's interview techniques, processes, and curriculum and its methods for scoring interview results to confirm that they comply with Customer's own policies and procedures and applicable law. Customer is solely responsible for determining whether and how to use the Exam Results in its hiring decisions and for its hiring decisions. Customer assumes all risks arising from Customer's hiring and employment activities and decisions. Customer releases and agrees to defend, indemnify, and hold MeritFirst harmless for any judgment or liability imposed against MeritFirst from any claims asserted against MeritFirst by a third party by reason of Customer's use of the Exam Results other than as instructed by MeritFirst; provided that Customer shall have no obligation to defend, indemnify, and hold MeritFirst harmless with respect to that portion of any loss arising from MeritFirst's or its agents' violation of applicable laws, infringement, negligence or willful misconduct.
8.3
MeritFirst Indemnity. MeritFirst agrees to indemnify, defend and hold harmless Customer from and against any judgment or liability imposed against Customer from any claims asserted against Customer by a third party by reason of (a) MeritFirst's gross negligence or willful misconduct or (b) an allegation that the Licensed Materials infringe any valid patent or copyright; provided that MeritFirst shall have no obligation to indemnify Customer with respect to that portion of any loss covered by the indemnity in Section 8.2, from Customer's violation of applicable laws, negligence or willful misconduct, or arising from MeritFirst's compliance with Customer's written instructions and provided further that the obligations of MeritFirst with respect to claims set forth in subsection (b) above do not apply with respect to the Services, Licensed Materials, or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by MeritFirst (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by MeritFirst, (iv) combined with other products, processes or materials not provided by MeritFirst (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer's use of the Services is not strictly in accordance herewith.
8.4
Procedures. Each party's indemnification obligations hereunder shall be conditioned upon the indemnitee providing the indemnitor with: (a) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the indemnitor of its indemnity obligations if the indemnitor is materially prejudiced by such failure); (b) the option to assume sole control over the defense and settlement of any claim (provided that the indemnitee may participate in such defense and settlement at its own expense); and (b) reasonable information and assistance in connection with such defense and settlement (at the indemnitor's expense).
9.
Attorneys' Fees; Governing Law. The prevailing party in any dispute arising under this Agreement shall be entitled to an award of its reasonable attorneys' fees, costs and expenses, incurred in connection with such dispute. This Agreement shall be construed and interpreted in accordance with the internal laws of the State of Delaware, without regard to its conflict of laws principles. Each Party consents to the exclusive jurisdiction and venue of the state and federal courts located in Delaware for any equitable claim or other action related to or arising from this Agreement or any terms and conditions contained herein.
10.
Miscellaneous. This Agreement represents the entire agreement between Customer and MeritFirst with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and MeritFirst with respect thereto. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that (a) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party's business relating to this Agreement, and (b) MeritFirst may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. Each party acknowledges and agrees that due to the unique nature of the other party's Confidential Information, there can be no adequate remedy at law for any breach of such party's obligations under Section 5, which breach may result in irreparable harm to such other party, and therefore, that upon any such breach or any threat thereof, such other party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches. Customer hereby grants MeritFirst the right to use Customer's name and logo (i) on MeritFirst's website and promotional features to identify Customer as a customer of MeritFirst, (ii) include in MeritFirst's promotional materials utilization statistics relating to Company's use of the Licensed Materials, and (iii) as necessary in the course of providing the Services to identify MeritFirst and Customer's relationship to Candidates.