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Elevate® Terms of Use --------------------------------------------------------- Effective Date: 19 October 2024 These are the Terms of Use of Elevate, the online platform of The Myers-Briggs Company group of companies (the "Company", "we", "us” or "our” and the like) for purchasing and using our psychometric assessments. These Terms of Use apply to all users of Elevate, whether customers or users of the goods and services of: The Myers-Briggs Company, a California benefit corporation; The Myers-Briggs Company Limited, a company registered in England and Wales; The Myers-Briggs Company Pte. Ltd, a company registered in Singapore; and The Myers-Briggs Company Pty Ltd, a company registered in Australia, and includes the European branch offices of The Myers-Briggs Company Limited (including The Myers-Briggs Company – France, The Myers-Briggs Company – Netherlands and The Myers-Briggs Company – Germany and its European operations in Belgium and Ireland). By registering and creating an Elevate account, or by accessing or otherwise using the Elevate platform (“Elevate”), you agree to be bound by these Elevate Terms of Use (“Terms of Use”) as of the first day you create your Elevate account or otherwise access Elevate (“Registration Date”). If you are an employee at an organization or other legal entity, then by registering and creating an Elevate account or by accessing or using Elevate, then you accept these Terms of Use on behalf of that entity (“Customer”) and you represent and warrant that you have the necessary authority to do so. You must be at least sixteen (16) years old to register an Elevate account and use Elevate; if you are not at least sixteen (16) years old, please do not use Elevate or register an account. 1. The Elevate Platform 1.1 By creating an Elevate account, you will be able to purchase and administer assessments offered by the Company, including (without limitation), the Myers-Briggs Type Indicator®, CPI 260®, Strong Interest Inventory®, Thomas-Kilmann Conflict Mode Instrument™, and FIRO® assessments (“Assessments”) and to generate reports (“Reports”) for those Assessments for your assessment-taker respondents (“Respondents”). 1.2 Elevate accounts are subscription-based (as detailed below), and are accessible only to users who have completed registration for the Elevate service and have confirmed registration details, including a log-in and password. Each Elevate account may only be used by a single, named user (“User”). Subject to these Terms of Use, for each Elevate account you register, and provided any subscription remains valid, the Company will grant you access to Elevate for the duration of any Subscription Period (as defined below). 1.3 Customers and Users are responsible for ensuring the security of subscription and registration details, including log-in and passwords. Registration details, including log-in and password details, shall not be shared between multiple users. Any actual or suspected loss or theft of such details should be reported to the Company as soon as possible in order that replacement log-in and passwords may be created. 1.4 You understand and acknowledge that, in order to use Elevate, certain technical requirements relating to hardware and software (including, without limitation, an internet connection, email address, and compatible web browser) available to the User and the Respondent will need to be met, and you and your Respondents agree to meet those technical requirements at your own expense. Further details can be supplied on request. 1.5 For the avoidance of doubt, separate Elevate Terms of Use for Respondents (https://registration.themyersbriggs.com/TermsOfUse/Respondent), as set out on Elevate, are applicable specifically to Respondents. 2. Elevate Products 2.1 The Company makes available a variety of products and solutions on Elevate, including (without limitation) our Assessments, Reports, self-guided solutions, and supplemental written materials (collectively, our “Products”). Certain of our Products may have requirements that are specific to them, and any such requirements will be set forth on the relevant description applicable to that Product, as set out on our website (https://www.themyersbriggs.com). By purchasing any Product, Customer and you agree to any additional requirements set forth in those Product descriptions. By way of example and without limitation, such additional requirements may require you to: Obtain separate software at your own expense to make use of a Product (for example, video conferencing software to make use of our self-guided offerings); Redeem or complete a Product within a specified time period (for example, completing our self-guided offerings before they expire); and/or Meet certain criteria to enjoy the full benefits of a Product (for example, successfully achieving our qualification completion criteria for self-guided and other offerings). 3. Fees, Payment Terms, and Ordering 3.1 Subscription for (i) US Users and (ii) Users in other territories outside the UK and EU (“ROW Users”): 3.1.1 In order to access Elevate, you must purchase a subscription for each Elevate account you create, at the rates indicated on Elevate (“Subscription Fee”) and accept these Terms of Use for each account. Payment of the Subscription Fee for an Elevate account and acceptance of these Terms of Use will grant you access to Elevate for a one (1) year period (“Subscription Period”) starting on your Registration Date. Subscription Fees must be paid in advance upon account creation (or renewal, as applicable). If you will be using multiple Elevate accounts, a Subscription Fee and acceptance of these Terms of Use is required for each Elevate account. 3.1.2 If you would like to continue using Elevate after your current Subscription Period has expired, then you will be required to pay a renewal fee at the rates indicated on Elevate (“Renewal Fee”) and accept these Terms of Use, each as applicable at renewal. Payment of the Renewal Fee will extend your access to Elevate for an additional one (1) year, starting the day after the expiration of your prior Subscription Period. 3.1.3 Payment of the Subscription Fee (or Renewal Fee, as applicable) only covers access to Elevate. 3.2 Subscription for UK Users and EU Users 3.2.1 In order to access Elevate, you must subscribe to Elevate in respect of each Elevate account you create. Acceptance of these Terms of Use will grant you access to Elevate for the Subscription Period (as defined in Section 3.1.1) starting on your Registration Date. These Terms of Use must be accepted in advance upon account creation (or renewal, as applicable). If you will be using multiple Elevate accounts, acceptance of these Terms of Use is required for each Elevate account. 3.2.2 If you would like to continue using Elevate after your current Subscription Period has expired, then you will be required to accept these Terms of Use at renewal. Such acceptance will extend your access to Elevate for an additional one (1) year, starting the day after the expiration of your prior Subscription Period. Note that no subscription fee is applicable for UK and EU Users and Customers. 3.3 Report Fees 3.3.1 Should you choose to administer one or more Assessments to generate Reports, you must pay the administration fees (“Administration Fees”) associated with those Reports, at the rates indicated on Elevate. Administration Fees vary based on the type of Report. 3.4 Orders 3.4.1 Orders cancelled after confirmation on Elevate will not be refunded. An order may be refused if the Company has reasonable grounds to believe that it has not been placed by a bona fide User or Customer. 3.4.2 Owing to geographical restrictions imposed by government embargo, the Company may refuse orders for the supply of certain Assessments from Users in certain countries. Further details can be supplied on request. 3.4.3 We will use our reasonable efforts to ensure that Reports are generated and made available to the User on the same day that the Report is requested. 3.5 Payment Terms 3.5.1 Unless otherwise stated, the price payable for Products on Elevate will be the price as set out on Elevate (https://login.themyersbriggs.com); appropriate Taxes (as defined below) will be added to the price where applicable. You are responsible for all applicable national, federal, state, and local taxes, duties, fees, charges, surcharges, or other similar exactions, (whether such exactions are imposed directly upon you or upon the Company) (collectively, “Taxes”) imposed on your Elevate transactions. “Taxes” do not include any taxes that are imposed on or measured by the net income of the Company. If you are tax-exempt, you may provide duly-executed documentation evidencing your tax-exempt status to the Company for consideration. If the documentation is accepted, the Company shall exempt you from Taxes on a going-forward basis, provided that you keep all tax exemption documentation accurate and current. 3.5.2 Subject to Sections 3.5.3 and 3.5.4, and unless otherwise agreed in writing, we will process orders for Reports only by online payment using a valid debit or credit card at the time of making the order. 3.5.3 If you are set up to order Elevate products via purchase order (via contact with your Company sales representative), then all payments shall be made payable to the Company in U.S. Dollars, Pounds Sterling or Euros, as applicable, and payments are due thirty (30) days from the invoice date. Payments not received within thirty (30) days will be considered late and will bear interest at the rate of one and one-half percent (1.5%) per month (or the maximum amount permitted by law, whichever is lower) on the unpaid balance from the payment due date until the date actually paid. If any charge owed is thirty (30) days or more overdue, the Company may, without limiting its other rights and remedies: (a) suspend your access to Elevate until such amounts are paid in full; or (b) terminate your access to Elevate. 3.5.4 As an alternative to online payment at the time of order or a credit account, Report Credits may be ordered in advance. “Report Credits” are pre-paid credits purchased by you from, or issued to you by, the Company for individual Reports available on and delivered via Elevate. Report Credits may be made available as follows: 3.5.4.1 In the event that a Customer who is an authorized credit-account-holder orders Report Credits totaling $250 (or other currency equivalent) or more (ex-taxes) in a single transaction, we will invoice the Customer, and such invoices will be paid by the Customer within thirty (30) days of the date of invoice. The Report Credits ordered will be available on Elevate normally within one (1) hour of the order being processed. 3.5.4.2 In the event that a Customer who is an authorized credit-account-holder orders Report Credits totaling less than $250 (or other currency equivalent) (ex-taxes) in a single transaction, the Report Credits will become available on Elevate only once we have received payment in cleared funds. 3.5.4.3 Customers who are not credit-account-holders may purchase Report Credits, in which case such Report Credits will become available on Elevate once we have received payment in cleared funds. 3.5.4.4 Report Credits shall have an unlimited duration of use, meaning that provided you have an active Elevate account, Report Credits shall remain valid on your account without expiry. The Myers-Briggs Company reserves the right to amend this duration of use of Report Credits policy from time to time and you will be notified of any change in advance. In such a case, you will have a minimum of twelve (12) months’ notice of any change, in order to use any existing inventory. 3.5.4.5 Report Credits are non-refundable and must be for specific Report types in specific quantities; we regret it is not possible to pre-pay for general credits usable for any of our range of Reports. 3.5.4.6 In the event that Report Credits are issued by the Company as part of a training workshop, for which the price is integral to the cost of such workshop, the duration of use of such Report Credits shall be limited to three (3) months, subsequent to which any such Report Credits which are unused shall expire. 3.5.5 From time to time, the Company may issue you one or more credit memos against invoiced purchases (for example, without limitation, if you overpay or return eligible products in accordance with the Company’s applicable return policy). Any such credit memos will expire upon the earlier of: (a) the date set forth in such credit memo; or (b) one (1) year from the date the Company issues such credit memo. Furthermore, you understand and agree that any unapplied payments the Company receives from you (whether in the form of overpayments, duplicate payments, or otherwise) shall be forfeited one (1) year from the date the Company receives such unapplied payments. 4. Elevate Data & Privacy 4.1 Your use of Elevate involves several types of data, including (without limitation): your personal information, your Respondents’ personal information, your Respondents’ responses to Assessments (“Item Responses”), and your Respondents’ responses to optional research and demographic questions (“Demographic Data”) (together, “Respondent Personal Information”). 4.2 All personal information (both yours and that of your Respondents) will be used in accordance with the Company’s Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy), as amended from time to time, a copy of which is also made available to Respondents on Elevate prior to taking any Assessments. The Company will comply with applicable laws governing the use of personal information, and the Company will implement commercially reasonable safeguards to protect the confidentiality, integrity, and availability of personal information you provide to the Company. 4.3 As between you and the Company with regard to your Elevate account data, including Respondent Personal Information, you, the Customer and/or Practitioner, are the data controller and the Company is the data processor, except in respect of any business contact data you, the Customer and/or Practitioner, provides to the Company, in which case the Company is Data Controller. If you provide personal information to the Company, other than business contact data, the Company will process that personal information in accordance with our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy) and only on your documented instructions, unless required to do otherwise by applicable law. 4.4 The Company may engage additional sub-processors to provide the services that are the subject of these Terms of Use, as set forth in our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy), and you agree to the Company’s use of such additional sub-processors. Those sub-processors will be contractually bound to abide by substantially similar privacy and security principles set forth in these Terms of Use and the Company’s Privacy Policy. 4.5 Your use of Elevate requires the collection and/or transmission of your personal information and your Respondents’ Personal Information to the Company in the United States. If you are using Elevate outside the United States, then by agreeing to these Terms of Use you acknowledge and agree to such transfer. The Company has in place relevant safeguard mechanisms under applicable law with respect to international transfers of personal information, including from the UK and Europe to the United States. Further information can be found in our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy). 4.6 Notwithstanding the foregoing, the Company reserves the right to alter or remove a data subject’s personal information if required to do so by applicable law. If a data subject (including, without limitation, a Respondent) exercises a right afforded to that data subject under applicable law against you as the data controller, either to us or via you, the Company will reasonably cooperate with you and provide reasonable assistance and information to facilitate your ability to respond to such a request. 4.7 The Company will store data associated with your Elevate account as follows: - in respect of all data on Elevate except Respondent Personal Information, during your Subscription Period and any applicable renewal periods. If your Subscription Period terminates or expires, the Company will store your Elevate account data for ninety (90) days after such termination or expiration to allow you the opportunity to renew your subscription without losing access to your Elevate data. If you do not renew your Elevate subscription within that ninety (90) day period, the Company will remove or anonymize your Elevate account and its associated data and you will permanently lose access to that Elevate account and its associated data. Any business contact data and invoicing data required to be retained under relevant legislation shall be retained according to applicable laws. See Section 11 of our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy) for further details; and - in respect of Respondent Personal Information, including Item Responses, Demographic Data and Reports, for a period determined by you, the customer, via data retention settings within your account on Elevate. These settings range from eighteen (18) months to an indefinite period, and you are able to set and change your settings via the data retention settings within your Elevate account, whenever you wish (“Customer Retention Period”). If you do not set a retention period within your Elevate account, we will hold Respondent Personal Information for a period from collection of each Respondent’s Personal Information until twenty (20) years after completion of such Respondent’s Assessment on Elevate (“Default Retention Period”), provided your Elevate account remains active, after which it will periodically be removed from Elevate or anonymized, in accordance with our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy). At expiry of the Customer Retention Period or the Default Retention Period, as applicable, the Company will remove or anonymize such Respondent Personal Information. See Section 11 of our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy) for further details. If your Subscription Period terminates or expires prior to the expiry of such Retention Period, the Company will store all Respondent Personal Information for ninety (90) days after such termination or expiration to allow you the opportunity to renew your subscription without losing access to the relevant Elevate data. If you do not renew your Elevate subscription within that ninety (90) day period, the Company will remove or anonymize such Respondent Personal Information (and any other Elevate account and its associated data as set out above), and you will permanently lose access to your Elevate account and such Respondent data and Reports. See Section 11 of our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy) for further details. 4.8 For the avoidance of doubt, in respect of each Respondent, where your Elevate account comprises more than one (1) Report generated from the same Assessment within any Customer Retention Period or Default Retention Period, as applicable, the retention period after which the Company will remove or anonymize the data associated with that Assessment from Elevate, including Item Responses, Demographic Data and all Reports, will still be the Customer Retention Period or the Default Retention Period, as applicable. Where your Elevate account comprises data, in respect of each Respondent, from more than one Assessment, the Customer Retention Period or the Default Retention Period, as applicable, will apply separately for each Assessment you complete. Notwithstanding the above, where your Elevate account comprises more than one (1) Assessment for the same Respondent, the Company will store such data associated with that Respondent in terms of their name and email address, for the duration of which all Assessment data remains on the Platform and therefore for the Customer Retention Period or the Default Retention Period, as applicable, as determined from the date the latest Assessment Report is completed. 4.9 While your Elevate account remains active and thereafter for the Customer Retention Period or the Default Retention Period, as applicable, the Company reserves the right to retain and use all your Respondents’ Item Responses, Demographic Data, and other data collected and/or generated via Elevate in personally identifiable form for the purposes of providing the Elevate products and services to you and your Respondents. 4.10 Furthermore, at all times, both while your Elevate account remains active and thereafter, the Company reserves the right to retain and use all your Respondents’ Item Responses, Demographic Data, and other data collected and/or generated via Elevate in non-personally identifiable form for the Company’s scientific research and product development purposes and other business purposes as set forth in our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy), even after your Elevate account data is removed or anonymized. This data retained by us is not personal information because it is only retained in our systems in non-personally identifiable form, and therefore no longer represents personal information. Such non-personally identifiable data may be used indefinitely by us for scientific research and product development purposes without further notice to you as further set out in Section 7.1.5 of our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy). 4.11 In addition, where your Respondents have opted-in to be contacted for, and to participate in, future research opportunities, including surveys, and/or if you, as a Practitioner or Customer, opt-in to participate in future research opportunities, including surveys, the Company reserves the right to retain and use all Item Responses, Demographic Data, and other data collected and/or generated via Elevate from such opted-in Respondents and/or you, as applicable, in personally identifiable form for a period from for a period from collection of each Respondent’s Personal Information until eighteen (18) months after completion of such Respondent’s Assessment on Elevate (“Research Retention Period”) for the purposes of the Company’s scientific research and product development purposes, including contacting the Respondent and/or you for further research opportunities. After the Research Retention Period, such personal information will be used only in non-personally identifiable form for scientific research and product development purposes. 4.12 Notwithstanding Sections 4.7 to 4.11, in the event that a Respondent requests that the Company delete their personal information, and such request is authorized by the applicable data controller, then any contact details, Item Responses, Demographic Data and other personal information will be removed from Elevate, and if Respondents have opted-in to be contacted for future research opportunities, from our research and development databases. 4.13 Users can manage data retention, research and communication preferences using the pertinent functions on Elevate. 4.14 You may not administer Assessments to Respondents who are children. “Children” means those individuals who are (i) in the United States and under age 13; (ii) in the UK and European Union and under age 16; or (iii) in other countries or territories and under the minimum age of threshold in those countries or territories to be considered an adult. 4.15 Notwithstanding Privacy Notices to Respondents on Elevate, it is your and/or the Customer's duty to ensure that it has the consent of the Respondent to provide any personal information to the Company for use as provided in the manner set out in our Privacy Policy (https://www.themyersbriggs.com/en-US/Support/Privacy-Policy). 4.16 Additional data processing terms applicable to Customers in respect of Respondents who are deemed EU data subjects can be found here (https://eu.themyersbriggs.com/en/About/Data-Processing-Terms). Customers and Users agree to be bound by such Data Processing Terms, unless otherwise agreed in writing between the Company and you and/or the Customer. 5. Your Responsibilities 5.1 The Company makes Elevate available on a ‘one-user-per-account’ basis. You may not share your license or your Elevate username and password combination with anyone else. You shall use your best efforts to prevent unauthorized access to or use of your Elevate account and shall notify the Company immediately upon discovery of any unauthorized access or use. 5.2 You shall not sell, resell, rent, or lease your access to Elevate or offer Elevate Assessment scoring services on a “service bureau” basis. You shall not use Elevate to store or transmit any infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights. You shall not use Elevate to store or transmit malicious code or software that will impair the functionality or availability of Elevate or otherwise access Elevate in a manner not specifically authorized by these Terms of Use. You shall not interfere with or disrupt the performance of Elevate or attempt to gain unauthorized access to Elevate. 5.3 You shall not contract with parties other than the Company for the scoring of any assessments made available on Elevate. You may invite Respondents to complete Assessments using the functionality made available on Elevate in order for such Respondents to be assessed under your (or the Customer’s) supervision; in no other circumstances shall you copy, frame, or mirror any content or functionality made available on Elevate. You shall not reverse-engineer Elevate or any of the Assessments, Reports, or Products on Elevate or the scoring associated with those Assessments, Reports, or Products. You shall not access Elevate in order to build a competitive product or service or to copy any features, functions, scoring, or content of Elevate nor shall you make use of data collected as a result of your use of Elevate to create products or services for commercial sale or other commercial exploitation. 5.4 You shall not remove any copyright, patent, trademark, design right, trade secret, or any other proprietary rights notices from Products. You shall not make use of any of the Company trademarks in any manner that may create confusion, including (without limitation) using Company trademarks in domain names. 5.5 If you use customization facilities available on Elevate to apply different branding to that on Elevate or to alter or deviate from the standard supplied wording in relation to the content of emails sent via Elevate, you (or the Customer, as the case may be): (i) shall ensure that you and the Customer possess all necessary intellectual property rights or permissions; (ii) grant us a limited, non-exclusive, worldwide, royalty-free license to display such customizations for purposes of providing the services to you; and (iii) agree that any changes are lawful, appropriate, and related to the subject matter of Elevate. The Company shall have no responsibility or liability in relation to any such customization of Elevate, including any infringement of third-party intellectual property rights, misuse, or unlawful or inappropriate content. You agree to indemnify and hold harmless the Company (as further described in Section 10 below) from any third-party claims alleging that the customizations you implement infringe the proprietary or intellectual property rights of that third party. 5.6 In the event that the Customer is not also the User, the Customer shall ensure that any and all Users comply with the obligations set out herein as if such User were the Customer. 6. Restricted Instruments & Certification 6.1 Certain of the Company’s Assessments are considered “Restricted Instruments” and have additional requirements. You may only purchase and administer Restricted Instruments if you have been authorized and certified by the Company (or one of the Company’s partner certification organizations) as eligible to purchase and administer those Restricted Instruments. For each administration of a Restricted Instrument, you acknowledge and agree that you will provide real-time feedback and interpretation to each Respondent who completes a Restricted Instrument you have administered, which feedback may be delivered in person, over the phone, or through contemporaneous text or video chat (each, an “Interactive Interpretation Session”). Interactive Interpretation Sessions must be comprehensive and must amount to more than simply providing or passing along a Respondent’s Report. Interactive Interpretation Sessions must allow the Respondent to ask questions and receive feedback in a non-automated format. You shall not, under any circumstances, use Elevate to simply provide third parties with administrations of Restricted Instruments without providing the necessary Interactive Interpretation Sessions. 6.2 If you use Elevate to administer Restricted Instruments, then you understand and agree that your use of those Restricted Instruments must be in accordance with applicable ethical standards, such as the Ethical Standards of Psychologists established by the American Psychological Association, or the Standards for Educational and Psychological Testing, published by the American Educational Research Association; additionally, use of certain of our Products may be subject to the Guidelines for Ethical Use of Tests and Questionnaires (https://eu.themyersbriggs.com/en/About/Terms-of-Business/Guidelines-for-Ethical-Use-of-Tests-and-Questionnaires) or other written policies issued by us pertaining to the ethical use of our assessments (collectively, “Guidelines”). We reserve the right to refuse access to Elevate if you fail to comply with the Guidelines and other applicable terms as referred to in these Terms of Use. The Company may also make available additional written requirements relating to ethical use of Restricted Instruments, and you agree to comply with those written requirements. 6.3 As further set forth in Section 4.14 hereof, our Assessments are designed for adults and are not intended for Children. In order to use our Assessments, Users shall ensure that Respondents are the applicable age or over. 6.4 You understand that the Myers-Briggs Type Indicator® (MBTI®) assessment is not intended for use in connection with selection, promotion, team formation, or other activities that may impact an individual’s job, job prospects, or advancement, and you specifically agree not to use the MBTI assessment for those purposes. 6.5 Certain of our Products (for example, without limitation: our self-guided offerings) may enable you to become a certified practitioner of one or more of our Assessments. If you purchase or otherwise make use of such Products, you understand and agree that you must successfully fulfil any applicable completion criteria relevant to those Products in order to achieve your certification. You also understand and agree that your status as a certified practitioner is subject to, and conditioned upon, your compliance with additional requirements, including (without limitation) our ethical use policies, brand guidelines, ongoing education requirements, renewal fees, and any other written requirements that we may make available to you from time to time. The Company may modify or amend those requirements or impose new requirements at any time without notice to you. If you fail to comply with any such requirements, or if you otherwise breach these Terms of Use, then the Company may revoke (either temporarily or permanently) your certification in one or more Assessments by providing written notice to you. 6.6 When using the Company’s Products, you shall be required to verify any local requirements and/or restrictions on using psychometric assessments in general and the Products in particular, in that jurisdiction, whether imposed by law, regulation or by a local regulatory or governmental body. Where any local requirements and/or restrictions exist that alter the criteria for, or prevent, use of Products within a particular jurisdiction, it shall be the responsibility of the Customer and User to ensure that it fully complies with any and all such local requirements and/or restrictions. Where any User or Customer uses Products in a particular jurisdiction in contravention of any local requirements and/or restrictions, whether knowingly or inadvertently, such User or Customer shall be solely responsible and liable for such use and shall hold harmless and indemnify the Company in respect of any loss or claim by a third party against the Company arising from such. Further, in the event that a Customer and/or User has failed to ensure that any Products may be legitimately used within a particular jurisdiction and subsequently purchases Products for use in that jurisdiction, such Customer and/or User shall be liable for the costs thereof and the Company shall bear no responsibility or liability for return of such Products or the reimbursement of any associated costs. 6.7 If a User ceases to be an employee of, or associated with, the Customer with which that User was previously associated, then the User and/or the Customer shall inform us as soon as reasonably possible, and we shall take action based on the Customer’s instruction, which may include, without limitation, deletion of the name of the User from our register of users of Elevate associated with that Customer, transfer of records from that User to the Customer or to another nominated User, transfer of inventory from that User to the Customer or to another nominated User. For the avoidance of doubt, if the Customer fails to inform us of any change to its list of permitted Users, and a former employee or associate of the Customer continues to use Elevate, the Customer shall remain liable for any such use of Elevate. 7. Support, Downtime & Availability 7.1 If you need assistance with creating or using your Elevate account, the Company will provide you with limited, basic support (as determined by the Company in its sole discretion). Please contact support.us@themyersbriggs.com (for US and ROW Users and Customers) or support.eu@themyersbriggs.com (for UK and EU Users and Customers) or your Company representative for assistance. 7.2 The Company will use commercially reasonable efforts to make Elevate available at all times except for planned downtime, maintenance, and unavailability caused by circumstances beyond the Company’s reasonable control, including (without limitation): acts of God, acts of government, flood, fire, earthquakes, civil unrest, epidemics or pandemics, acts of terror, strikes or other labor problems, equipment malfunctions, power failures, or Internet service provider failures. Notwithstanding any of the foregoing, you have no expectation regarding the availability of Elevate. You agree that your Elevate purchases are not contingent upon any specific level of availability, or the delivery of any additional functionality or any additional support from the Company. 7.3 The Company reserves the right to take any Products out of print at any time without notice to you. If you have pre-purchased any Products from the Company (for example, without limitation: a pre-purchased Assessment administration) and those pre-purchased Products are taken out of print or otherwise made unavailable by the Company, then the Company will notify you of your options with respect to those pre-purchased Products, which options may include (without limitation): converting pre-purchased Assessment administrations to a substitute or replacement Assessment administration within a defined period; or converting the value of those pre-purchased Assessments into credit for use on Elevate within a defined period. If the Company provides such options to you and you do not exercise them before the time specified by the Company, then you acknowledge that you will forfeit the value of any such pre-purchased Assessments. The Company may choose to make Elevate unavailable either temporarily or permanently by providing written notice to you on Elevate. 8. Intellectual Property 8.1 Your use of Elevate involves the Company’s intellectual property, and your use of that intellectual property is governed by these Terms of Use. You acknowledge and agree that the Company is the sole and exclusive owner of Elevate itself, as well as all Products and other content made available on Elevate (and their accompanying intellectual property rights). The Company reserves all rights, title, and interest in and to Elevate and the Products and other content listed on Elevate, including all intellectual property rights. Your limited license to use Products is only as expressly set forth in these Terms of Use. 8.2 Elevate provides you with the ability to electronically deliver certain Products to yourself or to other individuals. If you purchase a Product that is intended for you to deliver that Product to yourself via the Elevate platform (for example, without limitation, a booklet), you agree not to share that Product with any other party and to limit your use of that Product to your personal use only. If you purchase a Product that is intended for you to deliver that Product to a Respondent via Elevate (for example, without limitation, a Report), you acknowledge and agree that any such Products are licensed only for that Respondent’s personal, non-commercial use. 8.3 You agree not to infringe any of the Company’s intellectual property rights in any Products and you agree to make your Respondents aware of the limitations and restrictions on their use of Products or any other materials delivered to them. This limited license that the Company grants to you (or your Respondents, as applicable) to electronically access and view such Products is non-exclusive, non-transferable, and non-sublicensable. 8.4 You may not alter or modify any Products, or reproduce, or distribute Products in any manner not specifically contemplated by these Terms of Use. You may not rent, lease, resell, redistribute for profit, or otherwise commercially exploit any Products, and you may not prepare derivative works based on any Products. If you prepare any unauthorized derivative works based on Products in contravention of these Terms of Use, then you hereby assign to the Company in perpetuity any and all intellectual property rights arising in such unauthorized derivative works and you waive in perpetuity any “moral rights” you might purport to have in such unauthorized derivative works. 8.5 For the avoidance of doubt: 8.5.1 reproduction of Assessments available via Elevate is not permitted; and 8.5.2 Reports may be copied a reasonable number of times, provided such copies are used only for internal record-keeping and other similar purposes related directly to the Respondent concerned. 9. Term & Termination 9.1 Your use of Elevate shall be governed by these Terms of Use starting on your Registration Date. 9.2 Your use of Elevate shall continue through the duration of your Subscription Period (as may be renewed from time to time). You may cancel any Elevate subscription at any time by providing thirty (30) days’ written notice to the Company. 9.3 If the Company determines, in its sole discretion, that you have materially breached these Terms of Use, then the Company may terminate your access to Elevate, including any Elevate subscription, by providing written notice to you. Such termination by the Company shall be effective as of the date the Company provides such notice. 9.4 If your subscription and access to Elevate terminates or expires for any reason (including any subscription termination or expiry for any reason), then: (i) you shall lose all access to Elevate and the data associated with your Elevate account (including, without limitation, your Respondents’ Personal Information, Reports, project data, any Respondent supporting materials, and any unredeemed inventory); (ii) you shall immediately stop making use of the Company’s intellectual property unless you have a license that extends beyond the duration of your Elevate subscription; and (iii) you will not receive any refunds for any Report Credits that you have not used prior to such termination or expiration, nor for any Subscription Fees for any unused portion of your Elevate Subscription Period for US and ROW Users, if applicable. 10. Liability and Indemnity 10.1 You agree to defend and indemnify the Company, its officers, directors, employees, and assigns against any claims, damages, losses, costs, or liabilities of any kind (including reasonable attorneys’ fees) arising out of or in connection with any actual or alleged breach of these Terms of Use, or in connection with any third-party suits or claims alleging matters which, if true, would constitute a breach of these Terms of Use. Furthermore, the Customer shall further indemnify the Company in respect of any claims brought by a Respondent or client of the Customer against us or our licensors in relation to the Customer's use of Elevate, the Products, Assessments and/or any other Company materials. 10.2 IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING ANY LOSS OF BUSINESS, PROFIT, REVENUE, DATA OR GOODWILL, OR FOR LOST OR WASTED MANAGEMENT TIME OR THE LOST TIME OF OTHER EMPLOYEES ARISING FROM THE CUSTOMER'S USE OF THE PRODUCTS, AND SERVICES WHETHER DIRECT OR INDIRECT) HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL THE COMPANY’S LIABILITY, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY YOU UNDER THESE TERMS OF USE OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. 10.3 ELEVATE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS.” THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE PRODUCTS OR SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE HAVE NO LIABILITY FOR THE INABILITY OF ANYONE TO ACCESS ELEVATE OR THE EMAILS THAT FORM PART OF ELEVATE AND WE RESERVE THE RIGHT TO CARRY OUT MAINTENANCE AND DEVELOPMENT ON ELEVATE, WHICH MAY CAUSE INTERRUPTION TO IT. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE COMPANY DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. 11. Miscellaneous 11.1 In the event of any conflict between these Terms of Use (as displayed on Elevate) and those in our catalogue or elsewhere, these Terms of Use (as displayed on Elevate) shall prevail. 11.2 These Terms of Use do not create a partnership, franchise, joint venture, fiduciary, or employment relationship between the parties; the parties are independent contractors. 11.3 Except as otherwise specified in these Terms of Use, all notices, permissions, and approvals under these Terms of Use shall be in writing. Notices to the Company shall be addressed to the attention of its General Counsel. All notices to you shall be addressed to the most recent contact information associated with your Elevate account. 11.4 No failure or delay by the Company in exercising any right under these Terms of Use shall constitute a waiver of that right. Other than as expressly stated herein, the Company’s remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 11.5 If any provision of these Terms of Use is held by a court of competent jurisdiction to be contrary to law, that provision shall be severed from these Terms of Use, and the remaining provisions of these Terms of use shall remain in effect. 11.6 You may not assign any of your rights or obligations under these Terms of Use, whether by operation of law or otherwise, without the prior written consent of the Company. 11.7 These Terms of Use, and any disputes arising out of or related to these Terms of Use, shall be governed exclusively by the laws of the nation in which the Company contracting with you hereunder is established, namely the State of California in respect of The Myers-Briggs Company; England and Wales in respect of The Myers-Briggs Company Limited (including its European operations); Singapore in respect of The Myers-Briggs Company Pte, Ltd.; and Australia in respect of The Myers-Briggs Company Pty Ltd; without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. 11.8 These Terms of Use constitute the entire agreement between you and the Company with regard to the use of Elevate, and these Terms of Use supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning their subject matter. 11.9 Any provisions of these Terms of Use that by their nature would survive shall survive any termination or expiration of these Terms of Use or termination or expiration of your Elevate subscription. 11.10 The Company may modify these Terms of Use at any time without prior notice to you, so please check them regularly. New versions of these Terms of Use will be provided to you via Elevate.
