Effective Date: November 1, 2025
Last Updated Date: November 1, 2025
IMPORTANT - PLEASE READ THE TERMS OF THIS EXAMEN LICENSE AND SERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A BINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND EXAMEN, INC. (“EXAMEN”) AND APPLIES TO YOUR USE OF EXAMEN’S SOFTWARE AND SERVICES (INCLUDING ANY API-BASED OR CLOUD-HOSTED COMPONENTS) (COLLECTIVELY, THE “SOFTWARE”). THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS THAT HE OR SHE HAS AUTHORITY TO REPRESENT THE ENTITY AND CREATE A LEGALLY BINDING CONTRACT. IF YOU DO NOT AGREE TO THIS AGREEMENT OR HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SOFTWARE OR SERVICES.
THIS AGREEMENT, AND YOUR USE OF THE EXAMEN SOFTWARE AND SERVICES, ARE ALSO SUBJECT TO THE EXAMEN TERMS AND CONDITIONS AND PRIVACY POLICY (AS MAY BE UPDATED FROM TIME TO TIME) AVAILABLE, IN EACH CASE, ON THE EXAMEN WEBSITE. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE EXAMEN TERMS AND CONDITIONS AND PRIVACY POLICY. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE EXAMEN TERMS AND CONDITIONS, UNLESS OTHERWISE SPECIFIED HEREIN, THIS AGREEMENT SHALL CONTROL.
BY CLICKING THE BUTTON BELOW LABELED “YES, I AGREE,” BY INSTALLING OR USING THE SOFTWARE, YOU ARE INDICATING YOUR ACCEPTANCE AND AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY ACCEPTING THE AGREEMENT AS DESCRIBED ABOVE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE AUTHORITY TO AGREE ON THE ENTITY’S BEHALF. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT OR ACCESS, USE OR INSTALL THE SOFTWARE. YOUR USE OF THE SERVICES MAY CAUSE AUTOMATED OUTBOUND OR INBOUND TELEPHONE CALLS, TEXT MESSAGES OR EMAILS; BY ACCEPTING YOU ACKNOWLEDGE THAT SUCH COMMUNICATIONS ARE INITIATED, CONFIGURED, AND CONTROLLED BY YOU.
Subject to your compliance with this Agreement, Examen grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services (including APIs, dashboards and downloadable tools) solely for your internal business purposes in accordance with this Agreement and all Documentation.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST EXAMEN TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EXAMEN ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST EXAMEN RESOLVED BY A JURY OR IN A COURT OF LAW.
Examen’s goal is to provide helpful and accurate information through the Software, but Examen makes no endorsement, representation or warranty of any kind about any information displayed therein. Examen is not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Software. If you rely on any such information, you do so solely at your own risk.
1. Software.
1.1. License & Access. Subject to your compliance with this Agreement, Examen grants you a limited, non-exclusive, non-transferable, non-sublicensable, license to access and use the Services (including APIs, dashboards and downloadable tools) solely for Your internal business purposes in accordance with this Agreement and all Documentation.
1.2. Open-Source Software. Certain software code incorporated into or distributed with the Software may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the Apache License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1.1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. You agree to comply with the terms and conditions of such open-source software license agreements.
1.3. Data. In addition to the data displayed through the Software, the Software may, from time to time, automatically report back information to Examen’s servers related to usage of the Software, without notice to you (“Usage Data”). Usage Data may be used by Examen in compliance with all applicable laws, including helping diagnose and resolve technical and performance issues in relation to the Software. By using the Software, you hereby consent to such collection, transmission, and use of data and agree to obtain all necessary consents from any authorized user for such contemplated usage. Examen may process and store call audio, SMS, email content, transcripts, documents, and other Customer Data to provide/improve the Services.
1.4. Ownership. You agree that Examen and its suppliers own all right, title, and interest in the Software. You will not remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software. Other than the limited license set forth in Section 1.1 above, no right is granted to you herein. Third-party components included in the Software are subject to the applicable third-party terms and conditions.
1.5. Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Examen through its coaching, feedback, evals, or similar pages (“Feedback”) is at your own risk and that Examen has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Examen a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Software.
1.6. Customer Data. As between the parties, Customer retains all right, title, and interest in and to (a) Input submitted to or through the Software and (b) any other data or materials provided by or on behalf of Customer in connection with the Services (collectively, “Customer Data”). Customer grants Examen a limited, non-exclusive, royalty-free license to access, host, copy, transmit, display, and process Customer Data solely as necessary to provide, operate, and support the Services in accordance with this Agreement. Examen claims no ownership of Customer Data and acquires no rights in Customer Data other than the license expressly granted in this Section.
1.7. No Training. Examen will not use Customer Data to train, fine-tune, or otherwise improve any Examen artificial intelligence or machine learning model, except as Customer expressly authorizes in writing.
1.8. Retention and Deletion. During the Term, Examen will retain Customer Data for as long as necessary to provide the Services. Following expiration or termination of this Agreement, Examen will retain Customer Data for the thirty (30) day retrieval period set forth in Section 9.2, after which Examen will use commercially reasonable efforts to delete Customer Data from active production systems within ninety (90) days, subject to (a) retention required by applicable law and (b) routine backups, which will be deleted in the ordinary course of backup rotation. At any time during or after the Term, Customer may request deletion of specific Customer Data by written notice to support@examen.ai, and Examen will use commercially reasonable efforts to delete the requested data within ninety (90) days of receipt, subject to the same exceptions.
2. Use of the Software.
2.1. Certain Restrictions. As a condition of use, you agree not to use the Software for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party): (a) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Software, (b) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (c) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Software except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) interfere with or attempt to interfere with the proper functioning of the Software; (e) attempt to engage in or engage in, any potentially harmful acts that are directed against the Software or Examen, including but not limited to violating or attempting to violate any security features of the Software; (f) access the Software in order to build a similar or competitive website, software or service; (g) use any Software in violation of any applicable laws and regulations (including but not limited to any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth herein; (h) attempt to prompt inject or jailbreak the Software or any of Examen’s products, for any purpose; or (i) use data collected or produced by Examen to train or use as inputs in any models for any purpose. Any future release, update or other addition to the Software shall be subject to this Agreement. Examen, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of the Software shall permit Examen to terminate the licenses granted pursuant to this Agreement.
2.2. Generative AI.
2.2.1. Generated Output. Certain features of the Software permit you to provide documents, records, reports, prompts, scripts, queries or other input (collectively, “Input”) to the Software in order to receive output generated and returned by the Software based on such Input (“Output”). The Software is not intended to be used, and you agree not to use the Software to generate any Output, for: (a) any illegal activity; (b) child sexual abuse material or any content that exploits or harms children; (c) generation of hateful, harassing, or violent content; (d) generation of viruses or malware; (e) any activity that has high risk of physical harm; (f) any activity that has high risk of economic harm; (g) fraudulent or deceptive activity; (h) adult content, adult industries or dating apps; (i) political campaigning or lobbying; (j) activity that violates people’s privacy; (k) unauthorized practice of law or offering tailored legal advice without a qualified person’s review; (l) diagnosing a certain health condition, or providing treatment instructions; providing diagnostic or treatment services for serious medical conditions; (m) triaging or managing life-threatening issues that need immediate attention; or (n) high risk decision making. In addition, you will comply with any third party terms, guidelines, policies or the like to which we link in connection with your generation of Output.
2.2.2. Similarity of Output. Due to the automated content generation, Output may not be unique across users and the Software may generate the same or similar output for you, Examen or a third party. Other users may also provide similar Input and receive the same or similar Output. Responses that are requested by and generated for other users are not considered your Output. You hereby irrevocably release, acquit and forever discharge, and agree not to sue, Examen and its parents, subsidiaries, affiliates, officers, employees, agents, partners, and licensors (collectively, “Examen Parties”) with respect to any liability for direct or indirect copyright, trademark or other infringement, misappropriation or violation of any rights with respect to the Output.
2.2.3. Accuracy. Use of the Software may in some situations result in incorrect Output that does not accurately reflect real people, places or facts. You agree to evaluate and be responsible for the accuracy of any Output as appropriate for your use case.
2.2.4. Limitations of AI-Generated Output. You acknowledge and agree that, in addition to the limitations and restrictions set forth in this Agreement, there are numerous limitations that apply with respect to artificial intelligence (AI)-generated Output due to the fact that it is automatically generated, including that (a) it may contain errors or misleading information, (b) AI systems can lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content, (c) AI systems can struggle with understanding the nuances of language, including slang, idioms, and cultural references, which can result in Output that is out of context or does not make sense, (d) AI systems do not have emotions and cannot understand or convey emotions in the way humans can, which can result in Output that lacks the empathy and emotion that humans are able to convey, (e) AI systems can perpetuate biases that are present in the data used to train them, which can result in Output that is discriminatory or offensive, (f) AI systems can struggle with complex tasks that require reasoning, judgment and decision-making, (g) AI systems require large amounts of data to train and generate content, and the data used to train AI systems may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated Output, and (h) AI-generated Output can lack the personal touch that comes with content created by humans, which can make it seem cold and impersonal.
2.2.5. Disclaimers Regarding the use of Generative AI; Not Professional Advice. Under no circumstances will Examen be liable in any way for any Output, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any Output. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such Output. Examen is not in the business of providing legal or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.
2.3. Third Party Services. Examen, via the Software or otherwise, may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Examen has no control over such sites and resources and Examen is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Examen will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Software are between you and the third party, and you agree that Examen is not liable for any loss or claim that you may have against any such third party.
3. Registration.
3.1. Accounts. In order to download and/or use the Software, you may be required to register an account with Examen. You acknowledge and agree that you are bound by the terms and conditions of this Agreement with respect to such account and your access to any other services made available by Examen. You agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Examen account registration form. You are responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software. Registration data and certain other information about you are governed by our Privacy Policy. You are responsible for (and Examen disclaims all liability arising from) any content or communications sent through your account, including those initiated automatically by the Services.
3.2. Necessary Equipment. You must provide all equipment and software necessary to connect to the Software, including but not limited to, a computer that is suitable to use the Software. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing or using the Software.
4. Services and Support.
4.1. In accordance with the terms of this Agreement, Examen will provide you with the services contemplated herein and under any Order Form (collectively, the “Services”). In furtherance of the foregoing, Examen hereby grants Customer a limited, revocable, non-exclusive, non-transferable license to the Software during the Term.
4.2. In accordance with the terms of this Agreement, during the Term, Examen will provide you, at no additional charge, with ongoing reasonable technical support services to address any uptime, software, and other performance issues, questions, or concerns related to the Software and general continuous development and enhancement of the Examen Software (the “Support Services”). You acknowledge that Examen will, in its good faith discretion, determine the scope of the Support Services.
4.3. During the Term, Examen will provide you with, at no additional charge, all improvements, modifications and updates (collectively, “Updates”), each of which are a part of the Software and are subject to the terms and conditions of this Agreement. You acknowledge that Examen may require you to obtain and use the most recent version of the API to the extent the Software is being provided to you via an API call. Updates may adversely affect how the Software communicates with the Services.
4.4. Examen hereby agrees, and shall ensure that all employees and personnel of Examen under its direct control and supervision agree, to: (a) complete diligently the Services; (b) comply with this Agreement, the applicable Order Form, standard operating procedures, applicable laws, and industry standards with respect to the performance of the Services; (c) obtain all necessary authorizations, approvals and licenses for the performance of the Services, including the transport, handling, research, processing, and disposal of Customer Materials, in compliance with Applicable Laws; and (d) use commercially reasonable efforts to complete its obligations under each Order Form in the timeframe specified in the Order Form.
4.5 Fair Use; Excess Consumption. The Fees set forth in the Order Form are based on expected usage volumes, including reasonable consumption of computational resources, API calls, and AI model tokens (collectively, "Usage Resources"), consistent with Customer's described use case and the number of authorized users or seats specified in the Order Form. Examen monitors Usage Resources and may establish reasonable usage thresholds corresponding to each subscription tier, Order Form, or authorized user count. If Customer's consumption of Usage Resources materially exceeds (a) such thresholds, (b) levels reasonably expected given the number of authorized users under the Order Form, or (c) patterns consistent with ordinary business use (including, without limitation, automated scripts, looping or runaway processes, bulk extraction, shared credentials or access by individuals beyond the authorized user count, or use that degrades Service performance for other customers), Examen may, upon reasonable notice to Customer (email sufficing): (i) engage Customer in good faith to right-size the Order Form, increase the authorized user count, or agree on overage fees; (ii) throttle, rate-limit, or temporarily suspend specific features, skills, or accounts contributing to the excess consumption; and/or (iii) if Customer does not cure the excess consumption or agree to revised commercial terms within fifteen (15) days of such notice, suspend the affected Services until resolution. Examen will use commercially reasonable efforts to minimize disruption to Customer's ordinary business operations and will not invoke this Section in bad faith. Suspension under this Section does not relieve Customer of its payment obligations for Services rendered prior to suspension, and the Term shall not be tolled during any such suspension except by mutual written agreement.
4.6. Security. Examen will use commercially reasonable efforts to maintain administrative, technical, and physical safeguards designed to protect Customer Data against unauthorized access, use, alteration, or disclosure. These efforts include using industry-standard methods to encrypt Customer Data in transit and at rest, limiting access to Customer Data to Examen personnel with a legitimate need to access such data to provide the Services, and maintaining industry-standard operational practices. The foregoing does not constitute a warranty, representation, or guarantee of security, and the disclaimers set forth in Section 7 apply.
4.7. Notification of Security Incidents. If Examen confirms a security incident materially affecting Customer Data, Examen will use commercially reasonable efforts to notify Customer without undue delay, subject to any restrictions imposed by applicable law or law enforcement. Examen's notification will include such information about the incident as is reasonably available at the time of notification. The parties will cooperate in reasonable good faith with respect to any related investigation or remediation. The foregoing does not constitute a warranty or representation, and the disclaimers set forth in Section 7 apply.
5. Fees.
5.1. General. You will pay Examen the agreed upon fees described in the Order Form for the Services in accordance with the terms therein and hereof (the “Fees”). If you believe that Examen has billed you incorrectly, you must contact Examen no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Examen’s customer support department.
5.2. Late Fees. Examen may choose to bill through an invoice, in which case, full payment for undisputed invoices issued in any given month must be received by Examen thirty (30) days after the mailing date of the invoice. Examen will provide notice to you if you have an unpaid balance after such thirty (30) day period as described in the preceding sentence, warning you that failure to pay the balance shall be deemed a material breach of the Agreement (“Payment Notice”), after which you shall have fifteen (15) days from the date such Payment Notice is received to (a) satisfy the undisputed amounts set forth in the invoice or (b) provide Examen with notice of its objection to the invoiced amounts. Unpaid and undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all reasonable expenses of collection and may result in immediate termination of Service. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Examen’s net income.
6. Indemnification.
To the extent permitted under applicable law, you agree to indemnify and hold the Examen Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) any data you submit to or through the Software; (b) your use of, or inability to use, the Software; (c) your violation of this Agreement; (d) your violation of any rights of another party; or (e) your violation of any applicable laws, rules or regulations. Examen reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Examen in asserting any available defenses. You may not settle or compromise any claim against the Examen Parties without Examen’s written consent. You agree that the provisions in this Section will survive any termination of this Agreement.
7. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK, AND THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. THE EXAMEN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE EXAMEN PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (2) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. THE EXAMEN PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY DATA THROUGH THE SOFTWARE. EXAMEN DOES NOT MONITOR LEGALITY OF YOUR COMMUNICATIONS AND IS NOT LIABLE FOR FINES OR PENALTIES INCURRED BY YOU.
EXAMEN IS NOT A LICENSED CONTRACTOR, REAL ESTATE PROFESSIONAL, NOR LEGAL REPRESENTATIVE AND HAS NO AUTHORITY TO, AND CANNOT AND SHALL NOT ATTEMPT TO, DIRECTLY OR INDIRECTLY, CONTROL, DIRECT OR INTERFERE WITH THE PROFESSIONAL SERVICES CONDUCTED BY YOU FOR AND ON BEHALF OF YOUR TENANTS, LICENSEES, CONTRACTORS, VENDORS, SUPPLIERS, PERSONNEL OR OTHER PERSONS. THE EXAMEN SERVICES AND SOFTWARE ARE NOT INTENDED TO, AND DO NOT ACT AS A SUBSTITUTE FOR LICENSED, COMPETENT, PROPERLY TRAINED AND KNOWLEDGEABLE REAL ESTATE PROFESSIONALS, AND ARE NOT TO BE USED IN LIEU OF CONSULTING WITH LICENSED, KNOWLEDGEABLE, AND COMPETENT REAL ESTATE PROFESSIONALS. YOUR RELIANCE ON ANY INFORMATION PROVIDED BY EXAMEN IS SOLELY AT YOUR OWN RISK.
IN CONNECTION WITH THE SERVICES, EXAMEN MAY PROVIDE PERIODIC RECOMMENDATIONS TO YOU FOR (I) PROPOSED PROFESSIONAL SERVICES AND/OR (II) CONTRACTORS TO PERFORM PROFESSIONAL SERVICES. ANY SUCH RECOMMENDATIONS ARE PROVIDED IN GOOD FAITH BY EXAMEN BASED ON THE THEN-AVAILABLE INFORMATION AVAILABLE TO EXAMEN. IN MAKING DECISIONS ON WHETHER OR NOT TO CONTRACT FOR PROFESSIONAL SERVICES WITH CONTRACTORS, YOU MUST RELY ON YOUR OWN EXAMINATION OF THE RECOMMENDED WORK TO BE PERFORMED AND INDEPENDENT INVESTIGATION OF ANY KNOWN OR LATENT ISSUES THAT MAY IMPACT THE SIZE, SCOPE, COST, OR NEED TO CONDUCT THE RECOMMENDED PROFESSIONAL SERVICES ON CUSTOMER’S PROPERTY OR PROPERTIES. EXAMEN CANNOT, AND WILL NOT, INDEPENDENTLY VERIFY THE PROFESSIONAL SERVICES TO BE PERFORMED, THE COST OF ANY SAID PROFESSIONAL SERVICES, AND THE VERACITY OF ANY CONTRACTORS HOLDING THEMSELVES OUT AS HAVING THE SKILL, CARE, AND COMPETENCY TO PERFORM THE PROFESSIONAL SERVICES. AS SUCH, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT EXAMEN WILL HAVE NO LIABILITY FOR ANY INACCURACY OR INADEQUACY OF THE RECOMMENDATIONS PROVIDED TO CUSTOMER AND THE INFORMATION PROVIDED BY, TO, OR FROM EXAMEN.
8. Limitation of Liability.
8.1. DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL EXAMEN PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT EXAMEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE SOFTWARE; (2) DATA YOU SUBMIT THROUGH THE SOFTWARE; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (4) ANY OTHER MATTER RELATED TO THE SOFTWARE.
8.2. CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THE EXAMEN PARTIES BE LIABLE TO YOU IN THE AGGREGATE FOR MORE THAN THE AMOUNT YOU HAVE PAID EXAMEN IN THE LAST SIX (6) MONTHS.
8.3. BASIS OF THE BARGAIN. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EXAMEN AND YOU.
8.4. EXCLUSIONS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SOFTWARE. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “DISCLAIMER OF WARRANTIES,” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
9. Term and Termination.
9.1. Term. Subject to earlier termination as provided in this Section 9, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
9.2. Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such alleged breach within the notice period. You will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination other than nonpayment, Examen will make Customer Data available to Customer for electronic retrieval for a period of thirty (30) days after the effective date of termination. Thereafter, Examen will use commercially reasonable efforts to delete stored Customer Data in accordance with Section 1.8 (Retention and Deletion). You are responsible for offloading any Input you wish to transition away from the Services, prior to the date of expiration or termination of this Agreement.
9.3. Effect of Termination. Examen will not have any liability whatsoever to you for any suspension or termination. All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
10. Dispute Resolution by Binding Arbitration; Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
10.1. Agreement to Arbitrate. You agree that any and all disputes or claims that have arisen or may arise between you and Examen, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Software, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Section. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Section, the applicable terms of this Section will control unless the arbitrator determines that the application of the inconsistent terms of this Section would not result in a fundamentally fair arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Examen or you under the AAA Rules, Examen and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Examen will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Examen will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Section. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
10.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND EXAMEN AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EXAMEN AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
11. General Provisions.
11.1. Electronic Communications. The communications between you and Examen use electronic means. For contractual purposes, you (1) consent to receive communications from Examen in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Examen provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
11.2. Release. You hereby release the Examen Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage that is either directly or indirectly related to or arises out of the Software or your use thereof. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “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.”
11.3. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Examen’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Examen may assign or transfer this Agreement, in whole or in part, without restriction.
11.4. Force Majeure. Examen shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
11.5. Governing Law. This Agreement will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Examen agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California.
11.6. Limitations Period. YOU AND EXAMEN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
11.7. Notice. Where Examen requires that you provide an e-mail address, you are responsible for providing Examen with your most current e-mail address. In the event that the last e-mail address you provided to Examen is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Examen’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Examen at support@examen.ai.
11.8. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.9. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.10. Export Control. You may not use, export, import, or transfer the Software except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Software, and any other applicable laws. In particular, but without limitation, the Software may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Software, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Software for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services, or technology provided by Examen are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Examen products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
11.11. U.S. Government Rights. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, Software and all related documentation provided in connection with this Agreement are “commercial items,” “commercial computer software,” and/or “commercial computer software documentation.” Consistent with DFARS § 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
11.12. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software.
11.13. Privacy. At Examen, we respect the privacy of our users. For details please see our Privacy Policy. By using the Software, you consent to our collection and use of personal data as outlined therein.
11.14. Modifications for Regulatory Change. Examen may modify the Services or this Agreement on notice as reasonably necessary to comply with changes in law or carrier policies relating to telecommunications, AI or data privacy.
12. Confidentiality.
12.1. Definition. “Confidential Information” means non-public information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), whether orally, in writing, or by inspection, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer Data is Customer's Confidential Information. Examen's prompts, workflows, skills, templates, system instructions, pricing, and non-public technical and business information are Examen's Confidential Information.
12.2. Obligations. The Receiving Party will (a) use the same degree of care to protect Confidential Information as it uses to protect its own confidential information of like kind, but in no event less than reasonable care; (b) not use Confidential Information for any purpose outside the scope of this Agreement; and (c) not disclose Confidential Information to any third party except to its employees, contractors, agents, and professional advisors who have a need to know for purposes of this Agreement and who are bound by confidentiality obligations no less protective than those in this Section.
12.3. Exceptions. Confidential Information does not include information that (a) is or becomes publicly available without breach of this Agreement, (b) was known to the Receiving Party prior to disclosure without obligation of confidentiality, (c) is received from a third party without breach of any obligation of confidentiality, or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law or valid legal process, provided that, where legally permitted, it gives the Disclosing Party reasonable prior notice and cooperates in any effort to seek a protective order.
12.4. Survival. The obligations in this Section 12 survive termination of this Agreement and continue for five (5) years thereafter, except with respect to trade secrets, which will be protected for so long as they remain trade secrets under applicable law.