EMBARCADERO ONLINE PRODUCT CERTIFICATION AGREEMENT

Transcription

1 EMBARCADERO ONLINE PRODUCT CERTIFICATION AGREEMENT PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING THE EMBARCADERO ONLINE CERTIFICATION WEBSITE OR BY ACCESSING OR USING THE EXAM CONTENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT. NOTHING CONTAINED IN THESE AGREEMENT OR OTHERWISE SHALL BE DEEMED TO CONSTITUTE A REPRESENTATION, GUARANTEE, OR PROMISE THAT A PARTICULAR RESULT WILL BE PRODUCED DUE TO THE CERTIFICATION PROGRAM. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT NEGOTIATED AND SIGNED BY YOU. EMBARCADERO RESERVES THE RIGHT TO CHANGE THIS AGREEMNT FROM TIME TO TIME AT ITS SOLE DISCRETION, AND WILL PROVIDE NOTICE OF MATERIAL CHANGES ON THE SITE. YOUR CONTINUED USE OF THE WEBSITE AFTER SUCH NOTICE HAS BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF THE CHANGES. IF YOU BREACH THIS AGREEMENT, YOUR AUTHORIZATION TO USE THIS SITE AUTOMATICALLY TERMINATES. This Embarcadero Online Product Certification Agreement ( Agreement ) is entered into between you and Embarcadero Technologies, Inc. ( Embarcadero ) as of the date of your acceptance. 1. The Embarcadero Online Certification Program ( Certification Program ) is further described on the Embarcadero Website located at Individuals residing in the embargoed territories of Cuba, Iran, North Korea, Syria, and Sudan are prohibited from testing with Embarcadero Technologies, inc. You represent that you are not located in or a citizen of one of these countries. 2. CERTIFICATION. 2.1 Certification Requirements. To receive a Certification ( Certification ) you must meet the minimum requirements of the relevant program, by achieving a passing score on the required exam in accordance with Embarcadero s testing guidelines. If you meet these requirements you will receive a certificate signifying your accomplishment. Embarcadero reserves the right to change the Certification Program without cause or notice. Such changes may include, without limitation, adding, deleting or changing available exams, certifications and/or modifying certification or testing requirements. Embarcadero provides Certification and Exam Content via Test.com and access to and use of the above resources is subject to the Test.com terms of use and/ or privacy policy located at as they may be applicable to the provision of their service. System requirements to access the Exam Content are located in the FAQs at certification- faqs 2.2 Certification Revocation. Embarcadero may at its sole discretion revoke any and all Certifications you may have earned and permanently ban you from earning future Certifications under any of the following circumstances: If you fail to comply with any required recertification requirements; or If you breach the terms and conditions of this Agreement; or Embarcadero determines in its sole discretion, pursuant to Section 4, that you have undertaken or participated in exam Misconduct (defined in Section 4).

2 You agree that if an employer has inquired regarding the status of your Certificate that Embarcadero shall have the right to notify your employer and respond to any inquiries by your employer about changes in your Certification status. 3. Confidentiality. You agree that the Exam Content (defined below) is confidential and that the disclosure of that information would compromise the integrity of the Certification Program. Embarcadero makes exams available to you solely to test your knowledge of the exam subject matter for which you seek Certification. You are expressly prohibited from disclosing, publishing, reproducing or transmitting any exam or any related information including without limitation questions, answers, worksheets, computations, drawings, diagrams, length or number of exam segments or questions (and their selection and arrangement or any communication, including oral communication regarding or related to the exam (known collectively as Exam Content ) to any other person or entity in whole or in part, in any form or by any means, oral or written, electronic or mechanical for any purpose. 4. Exam Misconduct. Confirmed allegations of Misconduct may at any time result in application of the sanctions specified below. You agree to not to engage in the following misconduct ( Misconduct ): Disseminating Exam Content by any means including but not limited to web postings, discussion groups, chat rooms, and reconstruction through memorization, study guides or any other method. Seeking or obtaining unauthorized access to Exam Content. Misrepresenting Certification status or exam scores. Except as authorized by an exam proctor, possession of any materials or equipment including but not limited to laptops, mobile phones, or other electronic devices, notes, paper or other writing materials or recording devices. Providing false information or false identity, address or other false information or soliciting or taking an exam on another s behalf. Attempting to copy or remove or make notes from any Exam Content. Tampering with the operation of the exam or the site. Giving, receiving or obtaining unauthorized assistance during the exam or attempting to do so. Sharing your exam account with another person. Any other action to subvert the exam process. Embarcadero in its sole discretion determines if you have committed Misconduct. Sanction decisions may include but are not limited to, cancellation of your exam score, cancellation of any current or prior Certifications and permanent ban on future Embarcadero exams and Certifications.

3 5. Ownership. Exam Content is the property of Embarcadero or its licensors and is protected by copyright and other intellectual property laws. Embarcadero retains all rights, title and interest in and to all the Exam Content and any information or content related to the Certification Program. Nothing herein shall be construed as conferring any license under Embarcadero s intellectual property rights, whether by estoppel, implication or otherwise. No right, title, or interest in or to any trademarks, service marks, or trade names of Embarcadero or Embarcadero s licensors is granted hereunder and any use thereof will inure solely to the benefit of Embarcadero and/or Embarcadero s licensors. All software, including without limitation Embarcadero software, required by you in connection with the use of the Exam Content is licensed pursuant to the terms and conditions set forth in the software license agreement accompanying such software and such terms and conditions are in addition to these Agreement. Embarcadero reserves all rights not expressly granted to you. 6. Term and Termination. 6.1 Term. The Agreement shall remain in effect until terminated as set forth below. 6.2 Termination for Convenience. Either you or Embarcadero may termination this Agreement any time for any reason or no reason upon thirty days written notice to the other party. 6.3 Termination by Embarcadero for Cause. Embarcadero may terminate this Agreement immediately upon notice to you if you breach a material term of this Agreement or commit Misconduct. In such event you must immediately cease representing yourself as certified or having a Certification. 7. Limited Warranty; Disclaimer. EMBARCADERO IS PROVIDING THE EMBARCADERO ONLINE CERTIFICATION AND EXAM CONTENT ON AN AS IS OR AS AVAILABLE BASIS WITHOUT ANY WARRANTIES OR REPRESENTATIONS WHATSOEVER, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DOES NOT PROVIDE WARRANTIES WITH RESPECT TO YOUR USE OF OR ACCESS TO THE SITE OR CERTIFICATION PROGRAM. EMBARCADERO CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION AVAILABLE THROUGH THE PROGRAM, OR THE SITE ITSELF. EMBARCADERO ASSUMES NO RESPONSIBILITY FOR THE QUALITY, UTILITY, ACCURACY OR SECURITY OF THE EMBARCADERO ONLINE CERTIFICATION, OR EXAM CONTENT OR USEFULNESS OF THE SAME FOR ANY PURPOSE. EMBARCADERO SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY ANY THIRD PARTY VENDORS IDENTIFIED BY EMBARCADERO. 8. Limitation of Liability. EMBARCADERO, OUR AFFILIATES, OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THE ACCESS OR USE OF THE EMBARCADERO ONLINE CERTIFICATION SITE, EXAM CONTENT OR ANY OTHER INFORMATION YOU OBTAIN FROM THE SITE OR THE INABILITY TO ACCESS OR USE THE SAME. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF EMBARCADERO KNEW OR SHOULD HAVE KNOWN THE

4 POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, EMBARCADERO AND OUR SUPPLIERS LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. NO EVENT WILL EMBARCADERO OR ITS AFFILIATES, AGENTS, LICENSORS, SUPPLIERS AND DISTRIBUTORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON THE CERTIFICATIONS OR FOR ANY CONSEQUENTIAL, SPECIAL, OR SIMILAR DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. Providing Personal Information to Third Parties. Your personal information may be provided to third parties as follows. Embarcadero may share your personal information with other Embarcadero offices or related companies worldwide as well as with its vendors, consultants and distributors who may provide testing services or otherwise assist in administering the Certification Program. We may publish information regarding your certification in a certification directory when authorized by you. In addition to this Agreement, the Embarcadero privacy policy located at statement applies to use of personal information. 10. Force Majeure; Excused Performance. Embarcadero shall not be liable in any way for any delays in, or any failure of, services performed hereunder due to any wrongful or negligent act or omission of you or your employees and agents; and/or your failure to follow the Agreement. Neither party shall be liable or deemed in default for any delay in performance under this Services Agreement resulting directly or indirectly from acts of God, war, insurrection, national emergency, fires, storms, labor disputes, acts of vandals or hackers, acts of civil or military authority or any other cause beyond the reasonable control of such party. 11. Miscellaneous. These Agreement shall be governed in accordance with the laws of the State of California (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Embarcadero or relating in any way to the Exam Content or the Agreement resides in the State and Federal Courts located in Santa Clara California and you further agree and expressly consent to the exercise of personal jurisdiction in the State and Federal Courts located in Santa Clara California in connection with any such dispute or claim. The Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded without regard to or application of choice of law rules or principles. These Agreement including any attachments hereto and made a part hereof, constitutes the entire agreement between Embarcadero and you with respect hereto and supersedes any prior negotiations, understandings or agreements with respect to the specific subject matter hereof. No other terms and conditions shall be included or implied unless agreed in writing by an authorized representative of the parties. The rights of Embarcadero and your obligations under the Agreement shall inure to the benefit of Embarcadero s assignees, licensors, and licensees. This Agreement is not assignable or transferable in whole or in part by you without the prior written consent of Embarcadero, which consent shall not be unreasonably withheld. The provisions of this Agreement are severable and if

5 any one or more of the provisions hereof are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions of this Agreement shall be binding. A waiver of any section of this Agreement does not constitute a waiver of the whole Agreement. Except as otherwise specifically provided, all notices given pursuant to these Agreement shall be in writing sent by certified or registered mail (return receipt requested), overnight express services or by facsimile. All such notices shall be directed to you at the address you provide when registering for the Certification and for Embarcadero at 100 California Street, 12th Floor San Francisco, CA unless either party notifies the other in writing of a new address.