Membership Agreement

BY REGISTERING WITH TEST DESIGNER, YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

If you do not agree with the terms and conditions of this Agreement, do not complete the registration process. This Member Agreement ("Agreement"), including the Legal Notices and the Privacy Policy, contains the entire terms and conditions that apply to your use of Test Designer's standard or "limited" service ("Limited Service"), Test Designer's pay-for subscription services ("Pay-for Services") as described in Test Designer Pro pages, collectively "Services", and its Web site and/or co-branded Web sites Test Designer may operate or host from its servers (collectively referred to herein as "Site"). This Agreement may be modified from time to time.

This Agreement supersedes any prior agreements. The current version applies to your use of the Services and the Site both now and in the past.

1. Registration

We require a registration process so that you may choose a member name ("Member Name", "Login" or "Login Name") and provide a valid e-mail address and a password, and so that we may permit you to use this service. Your Member Name or e-mail will be used to identify you on Test Designer. You may log in to Test Designer, use the Services or modify your information, only through your Member Name or e-mail and password. You may not have more than one account or Member Name, and only one e-mail address for your use of the Limited Service. By registering, you certify that the e-mail address you provide in the registration is accurate and belongs to you; otherwise we have the option of suspending your account with Test Designer. You are responsible for maintaining the confidentiality of your password and for any and all activities that occur under your Member Name and password. You agree to notify Test Designer immediately at support@testdesigner.com of any unauthorized use of your account or any other breach of security you learn about. To protect your privacy and the privacy of others, Test Designer uses Member Names to identify participants. We keep your e-mail address and other information strictly confidential. You should refrain from using identifiers in choosing your Member Name and in your postings that would compromise your privacy, such as your e-mail address, URLs, full name, street address, telephone or fax numbers, place of employment, etc.

2. Test Designer Pro

Test Designer Pro enables subscribers to create questions with images. These questions are available to subscribers to view, edit, include in questions groups and tests, and print during the 1-month free trial and as long as the subscription is active. Once the 1-month free trial expires and/or the subscription expires, members can only view questions. To ensure ongoing full access to questions, members need only to continue their annual subscription.

3. Privacy

You are providing your electronic mail ("e-mail") address for the purposes of registering to access this service. Correctly entering your e-mail address is important so that you are able to participate in the collaboration process. Occasionally, you will receive newsletters, updates, information and notices, etc. with information that we deem to be of interest to the members of Test Designer. If you do not want to receive newsletters and updates, you may opt out of those services when you register, or, after receiving the newsletters and updates, you may unsubscribe. For more information regarding Test Designer protection of your information, please consult Test Designer's Privacy Policy.

4. Guidelines for Use

Test Designer Services and Site are only available for use by individuals who are age 13 or over. The Services and Site may not be used by scripts, machines or automated services without express written consent of the site ownership.

Test Designer Services and Site may be used only for lawful purposes. You must comply with all applicable local, state, national and international laws, regulations or conventions, including without limitation those related to data privacy, international communications, and exportation of technical or personal data.

You may not use the Test Designer Services or Site for any criminal or illegal activities or any activities that might be legally actionable. Test Designer reserves the right to determine what constitutes Internet abuse and objectionable conduct. If Test Designer believes, in its sole discretion, that a violation of these Guidelines has occurred, it may take responsive action. Such action may include, but not be limited to, permanent removal of illegal or inappropriate information or content, or suspension or termination of your membership and access to Test Designer Service.

Internet abuse and objectionable conduct may include, but is not limited to:

  • Using a Member Name or posting, transmitting or linking to any text or images that are sexually explicit, pornographic, violent, racially or ethnically objectionable or grossly offensive to the online community.
  • Posting, transmitting or linking to defamatory and libelous statements or other statements that would violate any third party's privacy or publicity rights.
  • Posting, transmitting or linking to profane language, descriptions of situations or scenarios considered, in the opinion of Test Designer, inappropriate for the Test Designer membership.
  • Impersonating any person or using a name that you are not authorized to use.
  • Planning illegal activities, such as creating computer viruses, building a bomb or counterfeiting money or pirating software, Serial Numbers of products for which you do not have a registered license.
  • Advertising, promoting in any way or offering to sell any goods or services for any commercial purpose.
  • Soliciting individuals for employment.
  • Soliciting individuals to join other services comparable to or competitive with Test Designer.
  • Posting links in open questions that lead to a competitor's site.
  • Promoting any products or services that are unlawful at the location at which the content is posted or received.
  • Posting any content that infringes any third party's intellectual property rights or violates any confidentiality agreements or contracts of employment.
  • Posting, transmitting or linking to statements that are intentionally false or misleading.
  • Introducing viruses, worms, harmful codes or Trojan horses.
  • Spamming, flaming or other similar activities, such as arguments between any one in a question.
  • Misusing the Test Designer rating system.
  • Violating the guidelines for academic honesty or other unethical behavior.

Violations of system and network security are strictly prohibited. You may not misuse system resources including but not limited to employing posts or programs which consume excessive CPU time or storage space, permitting use of mail services, mail forwarding capabilities, POP accounts or auto-responders other than for your own account. If you notice a problem with other members not following these Guidelines, please notify us by contacting support@testdesigner.com.

5. Use of Content

Test Designer enables Members to post problems or questions, solutions or answers, tests, assessments, information, comments and other content ("Your Content") to its Site. When you post Your Content to the Site, you understand and agree that Your Content can be viewed and used by other Members who visit the Site. You represent and warrant that you own or otherwise control all of the rights to Your Content and that use of Your Content by Test Designer and its affiliates will not infringe upon or violate the rights of any third party. Before you use Test Designer Services to post any information or content that is protected by intellectual property laws, you shall have acquired the legal right to do so from the owner or authorized licensee of such information or content. By registering with Test Designer and posting Your Content on the Site, you hereby grant Test Designer a non-exclusive, perpetual, irrevocable, unrestricted, transferable, fully sub-licensable, worldwide, royalty-free license to use, distribute, display, reproduce, perform, modify, adapt, publish, translate and create derivative works from Your Content in any form, media or technology, whether now-known or hereafter developed. You also grant Test Designer and its affiliates and sub-licensees the right to use the Member Name that you submit with Your Content for purposes of attribution. If you do not wish to have Your Content attributed to you, then you must notify Test Designer at support@testdesigner.com.

FAIR USE OF CONTENT IS PERMITTED

Fair use of material includes the use for non-commercial educational purposes, such as teaching, scholarship, research, criticism, commentary, news reporting, and other content. Unless otherwise noted, users who wish to download or print text and image files from this Web site for such uses may do so without express permission from Test Designer, provided that they comply with the following conditions:

  1. The content may only be used for personal, educational or noncommercial purposes;
  2. Users must cite the source of the content as they would material from any printed work;

COMMERCIAL USE OF CONTENT IS RESTRICTED

Unauthorized commercial publication or exploitation of text, images or content of this website is specifically prohibited. Anyone wishing to use any of these files or images for commercial use, publication, or any purpose other than fair use as defined by law, must request and receive prior written permission from Test Designer. Permission for such use is granted on a case-by-case basis at the sole discretion of Test Designer. A usage fee may be assessed depending on the type and nature of the proposed use.

6. Test Designer Property Rights

The layout, design, concept and organization of the Test Designer Site and Services are subject to Test Designer's copyrights and other intellectual property rights. All rights are reserved. You acknowledge and agree that Test Designer owns all rights, title and interest in (i) the Services; (ii) the Site; (iii) the technology available on the Services or the Site; and (iv) all copyrights, trademarks and other intellectual property rights therein. Any use of the Test Designer Services, Site, technology, and/or the copyrights, patents, trademarks or other intellectual property rights, other than as described in this Agreement, is not licensed and is strictly prohibited. You agree that you will obtain the express written permission from Test Designer before you copy, upload, transmit, reproduce, distribute or in any way exploit any Test Designer Services, technology and/or the copyrights, trademarks or the other intellectual property rights, obtained through the Test Designer Site. In addition, you agree not to copy the layout, design, concept and organization of the Site or Services during the Agreement and for a period of five years after termination. This Agreement does not constitute a license to use Test Designer's trade names, service marks or any other trade insignia. Any use of Test Designer's trade names, services marks or any other trade insignia shall be subject to Test Designer's prior written consent.

7. Agent for Notification of Claimed Infringement

Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512, Test Designer has designated an agent to receive notices of claimed copyright infringement. If you believe Your Content has been used on the Site in a manner that constitutes copyright infringement, please notify our designated agent at Test Designer at support@testdesigner.com.

8. Disclaimers of Warranty

Other than providing a framework in which Members post questions, answers and tests, Test Designer does not verify the accuracy of the questions posted on its Site. The Members who participate at Test Designer have not been licensed, certified or tested, nor have they met any requirements other than completing our registration form, which has not been reviewed or verified by us. YOU EXPRESSLY AGREE THAT USE OF TEST DESIGNER SERVICES IS AT YOUR SOLE RISK. THE SITE AND THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. TEST DESIGNER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE. TEST DESGINER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TEST DESIGNER MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. TEST DESIGNER DOES NOT WARRANT THAT THE SITE OR ITS SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MATERIALS. NOR DOES TEST DESIGNER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SERVICES SHALL CREATE ANY WARRANTY, WHETHER BY IMPLICATION, ESTOPPEL OR OTHERWISE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

9. Limitation on Liability

REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, YOU AGREE THAT IN NO EVENT SHALL TEST DESIGNER, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS OR LICENSORS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, TECHNOLOGY OR CONTENT AVAILABLE ON THE SERVICES ("TEST DESIGNER AFFILIATES"), BE LIABLE TO YOU IN ANY MANNER WHATSOEVER: (i) FOR ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION PROVIDED THROUGH THE SERVICES; (ii) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; (iii) FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF REPUTATION, EVEN IF TEST DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SERVICES PROVIDED BY TEST DESIGNER SHALL BE CANCELLATION OF YOUR MEMBERSHIP TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN THOSE JURISDICTIONS OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

10. Indemnification

Test Designer provides its Services and Site to Members on the assumption that Members will act professionally and responsibly. If they do not, Members must bear full responsibility for their actions. As a Member, you agree to defend, indemnify and hold harmless Test Designer, its officers, directors, employees and agents from and against all claims, demands, actions, suits, damages, liabilities and costs, including reasonable attorneys' and experts' fees, related to or arising from (i) any breach of your covenants under this Agreement; (ii) your use of the Services or the Site; (iii) all conduct and activities occurring under your Member Name and password; (iv) any defamatory, libelous or illegal material contained within Your Content or your information and data; (v) any claim or contention that Your Content or your information and data infringes any third party's patent, copyright or other intellectual property rights or violates any third party's rights of privacy or publicity; and (vi) any third party's access or use of Your Content or your information and data. Test Designer reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from you, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Test Designer, which shall not be unreasonably withheld.

11. Term, Termination

This Agreement shall be effective for as long as you use the Services. Either you or Test Designer may terminate this Agreement with or without cause, upon thirty (30) days notice to the other party. Test Designer may terminate this Agreement immediately if, based on Test Designer's sole judgment, it determines that you have (i) breached this Agreement or the Guidelines established for the use of Test Designer Services or Site, (ii) infringed or violated any intellectual property right of Test Designer or (iii) infringed or violated any intellectual property right or privacy or publicity right of a third party. The termination of this Agreement shall terminate your access to the Services. Neither Test Designer nor any Test Designer Affiliate shall be liable to you or to any third party for termination of the Services for any reason. The termination of this Agreement does not relieve you of your obligation to pay any Fees accrued or payable for use of the Services prior to the effective date of termination of this Agreement. Upon termination of this Agreement, the perpetual license you have granted to Test Designer shall continue. Provisions, which by their nature would be expected to survive termination, shall survive and remain in full force and effect in accordance with their terms.

12. Export Control Compliance

You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the Site any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. The export control laws of the United States and other jurisdictions regulate the export of certain technology. This includes e-mail transmission of certain information to foreign countries and foreign nationals. You agree to abide by these laws. Regrettably, nations of Cuba, Iraq, Iran, Libya, North Korea, Afghanistan, and Syria may not legally access Test Designer.

13. Consumer Rights

If you should have any complaints about Test Designer Services, or need further information about the Services, contact Support at support@testdesigner.com.

14. No Assignment

Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Test Designer.

15. Severability

If any provision of this Agreement or portion thereof is held to be invalid or unenforceable, the remaining provisions shall continue in full force and effect.

16. Applicable Law and Jurisdiction

This Site (excluding links) is controlled and operated from the Test Designer offices in Flushing, NY. You agree that all matters arising from or relating to the use and operation of the Site and Services shall be governed by the laws of New York State and the United States of America, without regard to conflicts of laws principles. This Agreement also shall be governed by and construed in accordance with the laws of New York State and the United States of America. The federal and state courts of New York State shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement or arising from or relating to the operation or use of the Site or Services. You expressly consent to (i) the personal jurisdiction of such courts over you; and (ii) service of process being effected upon you by either e-mail or registered mail sent to the address you provide Test Designer in connection with your subscription for services. Unless prohibited by the law of your jurisdiction, you waive any requirement that service of process or of any documents be made upon you pursuant to the provisions of The Hague Service Convention.

17. Notices

Except as explicitly stated otherwise, all notices permitted or required under this Agreement shall be by e-mail, to us at support@testdesigner.com, and to you at the e-mail address you provide Test Designer during the registration process, or to such other address as either of us shall specify in writing as our addresses for notice. Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Evidence of successful transmission shall be retained. Test Designer may modify the terms of this Agreement at its sole discretion by posting modifications on its website. Your continued use of the Services after notice of modifications constitutes your acceptance of the modifications. If you do not agree to the modifications, you should cancel your membership to the Services and terminate this Agreement.