GENERAL CONTRACTING TERMS AND CONDITIONS
1. SCOPE OF APPLICATION.
1.1 These General Contracting Terms and Conditions (these “Terms”) are applicable to any agreement (an “Agreement”) with Wonderlic, Inc., an Illinois corporation with a principal place of business at 544 Lakeview Parkway, Suite 210, Vernon Hills, IL 60061 (“Wonderlic”) to which these Terms are attached or incorporated into in their entirety by reference.
2.1 “Candidate” means an individual who accesses the Services and inputs any information in response to any software prompt, including an individual who is applying for employment with Client (an “Applicant”) and an individual who is already employed with Client and is obtaining an assessment using the Services for purposes of self-improvement (a “Incumbent”).
2.2 “Client Data” means the data provided to Wonderlic by You or any Candidate (including all information provided logging in to or accessing Services ).
2.3 “Client Information” refers to information collected via the Services by or from Client, including without limitation information provided by Candidates.
2.4 “Services” refer to the Wonderlic products, services, and software, including any updates thereto, provided under an Agreement. Services do not include any third party software provided by third parties or Third Party Services, regardless of whether such are provided with or in connection with the Services or Wonderlic arranges for such to be provided to Client by a third party under an Agreement.
2.5 “Third-Party Provider” means a third party that provides services or software to Client under an Agreement.
2.6 “Third-Party Services” refer to services provided to Client by a Third-Party Provider an Agreement.
3. CLIENT DUTIES AND ACKNOWLEDGEMENTS.
3.1 Services Content. Except for allowing Candidates to access the Services, Client shall not disclose the contents of the Services to any third party.
3.2 Access to the Services. Client shall use its best efforts to prevent unauthorized access to the Services. Client shall immediately notify Wonderlic of any known or suspected unauthorized use of the Services. Client agrees to maintain, manage, and keep confidential Client’s user name(s) and password(s) for the Services and not share them with any individual or entity other than Client’s authorized agents who access the Services on behalf of Client. Wonderlic shall not be responsible (and Client shall be solely responsible) for any unauthorized access to any Client account due to Client’s or its agent’s failure to properly manage user names and passwords, including, by way of example, Client’s failure to remove an employee’s user name and password upon such individual’s termination of employment.
3.3 Use of the Services. Client agrees to use the Services exclusively for Client’s internal business purposes in conjunction with the purpose set forth on the Agreement wo which these Terms are attached or incorporated, namely, (i) evaluating Applicants for potential employment with Client’s organization and/or (ii) conducting evaluations of Incumbents within Client’s organization. Client is granted a revocable, non-exclusive, non-transferable, limited license to use the Services and their output (including, without limitation, reports and analytics) solely for Client’s personal, internal business purposes strictly in accordance with these Terms and the terms of all applicable Agreements and Ancillary Terms. You shall permit Wonderlic to audit Your use of the Service to confirm compliance with these Terms and the terms of all applicable Agreements and Ancillary Terms. Such audit may be conducted at Wonderlic’s expense and in such a manner as not to unreasonably interfere with Your normal conduct of business.
3.4 Services Output. Except as expressly agreed by Wonderlic in writing (which, for the avoidance of doubt, can include tools or notices displayed through the Services), Client agrees not to publicly share or distribute any output provided by the Services (including, without limitation, reports and analytics).
3.5 Ownership of the Services. Client acknowledges and agrees that the Services and their output (including, without limitation, reports and analytics) are the intellectual property of Wonderlic and Client does not acquire any rights therein. Moreover, Client acknowledges and agrees that Wonderlic may include in the Services test questions and survey items, including demographic inquiries, that are exclusively for Wonderlic’s research purposes and Candidates’ responses provided thereto will not be reported to Client.
3.6 Client Data. Client hereby grants to Wonderlic an irrevocable, world-wide right and license during the Term to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Client Data as necessary or desirable for the purposes of Your use of the Services. In addition to the foregoing, Wonderlic also has, and You hereby grant to Wonderlic, a perpetual, irrevocable, royalty-free, fully paid-up, nonexclusive right and license to use any Client Data (i) for Wonderlic’s and its affiliate(s)’s internal business purposes, including, without limitation, developing or improving products or services, and (ii) to make any modifications or improvements to the Services or any other services and to offer such modifications or improvements on a commercial basis to You and/or any third party. For the avoidance of doubt, “Client Data” does not include any output of the Services (including, without limitation, reports and analytics), all of which is Wonderlic’s property and Wonderlic’s Confidential Information. Wonderlic has no obligation to maintain or return Client Data to You or to ensure that Client Data remains accessible through the Services. You expressly represent and warrant all Customer Data is true and correct, and You have obtained all necessary rights, licenses, and permissions and are able to grant the licenses provided in this Section, including, without limitation, with respect to Client Data provided by Candidates, and that Your provision of Client Data is in accordance with all applicable laws and does not violate any law or regulation or violate any right of any third party.
3.7 Collection and Taxes. You will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by Wonderlic in collecting delinquent amounts. You agree to pay all applicable taxes related to this Agreement. You agree to timely pay all fees owed in connection with the Services and/or Third Party Services (as applicable) in accordance with the provisions of the Agreement(s) to which these Terms are attached and/or incorporated.
3.7 Indemnification. Client shall indemnify and hold harmless Wonderlic from any third party claim arising out or related to Client’s use of Services or any breach of a representation or warranty of Client in these Terms, Ancillary Terms or an Agreement.
3.9 Use of the Services. The Services are designed for use in accordance with Wonderlic’s user’s manuals for the Services and all relevant professional and legal standards. Any modification of the Services may affect their accuracy and usefulness. The Services must only be used for the purposes for which the Services are intended, and for no other purposes. Services must be used in a secure and confidential manner. Use of the Services may be subject to certain municipal, state and federal laws, including, but not limited to, Title VII of the Civil Rights Act of 1964, 1991, the Americans with Disabilities Act of 1990, as amended, and the regulations relating to such laws. Client agrees to abide by all such laws and regulations.
3.10 Accuracy of Information. You warrant that the information you provide in connection with the Services is accurate, complete, and current. You further warrant that You have the legal right and ability to provide such information to Wonderlic in connection with obtaining the Services and that Your provision of such information does not violate any law or regulation or violate any right of any third party.
3.11 Waiver of Terms. Wonderlic may waive certain terms contained herein, as well as include additional terms and/or provide the Services at a discounted fee. In such instances, the waiver, additional terms and/or the discount shall be noted and described on the relevant invoice. Client acknowledges that it accepts any waived and/or additional terms by using the Services. In the event of Client’s failure to comply with any additional terms, Client will immediately remit the amount of the discount to Wonderlic upon Wonderlic’s request. Wonderlic may withhold the Services until receipt of such payment.
3.12 Candidate Feedback Authorization. As part of the Services, Wonderlic may provide Client with the option to have Candidates receive a report regarding their test performance, which may also include developmental insights. In the event that Client authorizes providing the report (or any other output of the Services) to Candidates, Client’s authorization will control over any contrary provisions of these Terms, Ancillary Terms or any Agreement which would otherwise prohibit Wonderlic from making such disclosure.
4. WONDERLIC DUTIES.
4.1 License Grant. Subject to the terms and conditions of these Terms, Wonderlic hereby grants You a non-exclusive, limited, non-transferable, non- sublicensable, revocable, license to use the Services. Wonderlic reserves all rights not expressly granted herein in the Services.
4.2 Protection of/Access to Client Information. Wonderlic shall use commercially reasonable efforts to protect Client Information from disclosure to any third party. However, Wonderlic cannot guarantee that any unauthorized third parties will never be able to defeat Wonderlic’s security measures or use Client Information for improper purposes. Notwithstanding anything to the contrary herein, Wonderlic will release Client Information in response to a governmental or judicial subpoena, order or request. Moreover, Wonderlic shall use commercially reasonable efforts to retain all Client Information during the Term of an Agreement. Notwithstanding the foregoing, Wonderlic shall have no liability for erased or otherwise lost Client Information and Wonderlic may permanently erase and/or restrict Client’s access to Client Information if Client’s account is delinquent, suspended or terminated. Client agrees and acknowledges that Wonderlic may use Client Information (including specifically all information provided by Candidates) in aggregate, anonymized form for any and all purposes and grants Wonderlic a perpetual, irrevocable, fully paid-up license in and to anonymized Client Information for such purposes.
4.3 Use of Marks. Client agrees and acknowledges that Wonderlic may identify Client as a user or customer of the Services and may use Client’s name, trademarks, and logos for such purposes, including without limitation on Wonderlic’s website and in Wonderlic’s marketing materials, press releases, blog posts, and advertisements. Client further grants Wonderlic a non-exclusive license to use Client’s name, trademarks, and logos (in Wonderlic’s discretion) for the purpose of referring to Client within the user interface for the Service.
4.4 Maintenance. Wonderlic shall utilize reasonable efforts to schedule maintenance for the Services during non-business hours. Wonderlic shall endeavor to notify Client of any required maintenance at least five (5) days in advance, except in those cases when it is not possible to do so. Client agrees and acknowledges that maintenance may be undertaken at any time and Wonderlic provides no guarantee that the Services will be available or accessible at any particular time.
5. REPRESENTATIONS, WARRANTIES AND LIABILITIES.
5.1 No Warranty. Except as expressly set forth herein, Wonderlic does not make any commitments about the specific functionality available through the Services, Third-Party Services or Third-Party Products, their reliability, availability, or ability to meet Client’s needs. TO THE EXTENT NOT PROHIBITED BY LAW, WONDERLIC AND ITS AFFILIATES (AND ASSOCIATED SERVICE PROVIDERS (INCLUDING ANY THIRD-PARTY PROVIDERS)) (A) PROVIDE THE SERVICES, THIRD-PARTY SERVICES AND THIRD-PARTY PRODUCTS “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”, (B) MAKE NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT) WITH RESPECT TO THE SERVICES, THIRD-PARTY SERVICES AND THIRD-PARTY PRODUCTS, AND (C) DO NOT GUARANTEE THAT THE SERVICES, THIRD-PARTY SERVICES AND THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICES.
5.2 Damages Limitations. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL WONDERLIC AND ITS AFFILIATES, RESELLERS, DIRECTORS, OFFICERS, EMPLOYEES, EQUITYHOLDERS, AGENTS, PARTNERS, SUPPLIERS, LICENSORS OR THIRD-PARTY PROVIDERS BE LIABLE FOR: ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF WONDERLIC HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
5.3 Damages Cap. THE AGGREGATE LIABILITY OF WONDERLIC AND ITS AFFILIATES, DIRECTORS, OFFICERS, RESELLERS, EMPLOYEES, EQUITYHOLDERS, AGENTS, SUPPLIERS, LICENSORS OR THIRD-PARTY PROVIDERS TO CLIENT RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF: (A) THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR THAT SERVICE; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). WONDERLIC AND ITS AFFILIATES, DIRECTORS, OFFICERS, RESELLERS, EMPLOYEES, EQUITYHOLDERS, AGENTS, SUPPLIERS, AND LICENSORS HAVE NO LIABILITY RELATING TO THE THIRD-PARTY SERVICES OR THIRD-PARTY PRODUCTS. THE AGGREGATE LIABILITY OF ANY THIRD-PARTY PROVIDER AND ITS AFFILIATES, DIRECTORS, OFFICERS, RESELLERS, EMPLOYEES, EQUITYHOLDERS, AGENTS, SUPPLIERS, OR LICENSORS, RELATING TO THE THIRD-PARTY SERVICES OR THIRD-PARTY PRODUCTS WHICH SUCH THIRD-PARTY PROVIDER PROVIDES, WILL BE LIMITED TO THE GREATER OF: (A) THE MOST RECENT MONTHLY OR YEARLY FEE THAT YOU PAID FOR THAT THIRD-PARTY SERVICE OR THIRD-PARTY PRODUCT; OR (B) ONE HUNDRED DOLLARS ($100 U.S.D.). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE.
5.4 Effect of Applicable Law. THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN JURISDICTIONS WHERE THE FOREGOING TYPES OF EXCLUSIONS AND LIMITATIONS ARE NOT ALLOWED AS A MATTER OF LAW, WONDERLIC AND ITS AFFILIATES ARE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF WONDERLIC’S FAILURE TO USE REASONABLE SKILL AND CARE OR WONDERLIC’S BREACH OF THESE TERMS OF AN AGREEMENT WITH YOU. NOTHING IN THESE TERMS AFFECTS CONSUMER RIGHTS THAT CANNOT BY LAW BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.
5.5 Allocation of Risk. Nothing in these Terms shall exclude or limit the liability of you or Wonderlic and its affiliates, officers, employees, agents, licensors, resellers, suppliers and distributors (including any Third-Party Provider) for death or personal injury, fraud, fraudulent misrepresentation or any liability that cannot be excluded or limited by law. The provisions of this Section allocates the risks under these Terms between You and Wonderlic, and You agree and acknowledge that You and Wonderlic have relied on these limitations in determining whether to enter into these Terms and the pricing for the Services.
6. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION.
6.1 Wonderlic’s Proprietary Information. The Services (including all contents of any website through which the Services are offered, all copyrightable works of authorship made available to You in connection with the Services, and all information submitted by You or any Candidate through the Services) and Wonderlic’s confidential information belong to Wonderlic, and/or its suppliers, affiliates, or licensors. Wonderlic or its licensors own and reserve all rights, title and interest in and to the Services and all hardware, software and other items used to provide the Services, other than the rights we expressly grant to You to use the Services. No title to or ownership of any proprietary rights related to the Services is transferred to you pursuant to these Terms.
6.2 Confidential Information. During your use of the Services, Wonderlic may share information with You that is confidential, sensitive or should be kept secret. For example, the contents of questionnaires or exams included with the Services should always be considered confidential to Wonderlic. In addition, if Wonderlic provides any documents or information to You that are labeled “confidential” (or something similar), or provides information (either in writing or verbal) that is of a type that a reasonable person should understand to be confidential, such information is to be treated as Wonderlic’s confidential information. Other than personally identifiable information (which Wonderlic agrees not to knowingly disclose to any third party), Wonderlic is under no obligation to keep confidential any information that You provide to Wonderlic, whether through the Services or otherwise. In particular, if You provide information that: (a) Wonderlic already knows at the time of disclosure; (b) was provided to Wonderlic by a third party who had the right to disclose it; (c) is generally available to the public; or (d) was independently developed by Wonderlic without using any of Your confidential information, then that information will not be considered confidential. The same goes for information that Wonderlic provides to You that falls into any of these categories. Client agrees that Client: (i) will treat Wonderlic’s information with at least the same degree of care that Client treats its own confidential information; (ii) will use Wonderlic’s confidential information only in connection with these Terms and the Services; (iii) only share the information with others who have a need to know in connection with the Services and who have agreed in writing to treat it as confidential (as outlined in this section); and (iv) not share the information with any third party except as allowed in these Terms or through the Services.
6.3 Comments and Usage Data. For the avoidance of doubt, if You provide comments, suggestions and recommendations to Wonderlic about the Services (e.g., modifications, enhancements, improvements) (collectively, “Feedback”), You are automatically assigning all of Your rights in such Feedback to Wonderlic. In addition, Wonderlic shall have and retain the right to collect, store, and use usage data derived from Your use of the Services and Third-Party Products and Third-Party Services (“Usage Data”) for its and its affiliates’ own business purposes, including, without limitation, support, operational planning, product innovation and sales and marketing of the Services and other services. Wonderlic agrees not to publicly disclose any Usage Data in a manner that could reasonably be expected to identify You.
7. ACCEPTABLE USE POLICY
7.1 You agree You will not, nor will You encourage, permit, or assist others to, harm the Services or use the Services to harm others. For example, You must not use the Services to harm, threaten, or harass another person, organization or Wonderlic and/or to build a similar service or compete with Wonderlic. You must not: (a) damage, disable, overburden, or impair the Services (or any network connected to the Services); (b) resell or redistribute the Services or any part of it; (c) use any unauthorized means to modify, reroute, or gain access to the Services or attempt to carry out these activities; (d) use any automated process or service (such as a bot, a spider, or periodic caching of information stored by Wonderlic) to access or use the Services; (e) use the Services beyond the features allocation and amounts provided in that Service or in violation of our fair use policy; (f) use the Services to, and/or cause Wonderlic to, violate any law or distribute any malware or malicious content to any third party (including any Candidate); (g) use the Services to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (h) use the Services in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity; (i) distribute, post, share information or content illegally or without permission; (j) use the Services to disseminate or promote terrorism or terrorist activities; (k) use the Services to disseminate material that may infringe upon legally protected social rights and freedoms of a person(s) and/or as defined by domestic and public international laws and/or other legal norms; or (l) discriminate against or violate the rights of any individual (including but not limited to any Candidate).
7.2 In addition, You agree You will not, nor will You encourage, permit, or assist others to, (a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Site or Services in any form or media or by any means; or (b) reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Services; or (c) access all or any part of the Services in order to build a product or service that competes with the Services; or (d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services or their output (including, without limitation, reports and analytics), or otherwise make the Services or their output (including, without limitation, reports and analytics) available to any third party (e.g., as a service bureau); or (e) circumvent or disable any security or other technological features or measures of the Services.
8. TERM AND TERMINATION.
8.1 Term. The term of an Agreement shall (i) commence on the date Client orders the Services or as specified in an order or proposal, and continue until the date specified in any such order or proposal (the “Initial Term”) and (ii) unless otherwise specified within the Agreement, automatically renew for successive one (1) year terms (each a “Renewal Term” and collectively with the Initial Term, the “Term”) unless a party provides written notice to the other party of its intent to not renew at least fifteen (15) days prior to the end of the then-current Initial Term or Renewal Term. Wonderlic may revise the pricing of any Agreement upon at least thirty (30) days’ notice before the end of the then-current Initial Term or Renewal Term, with such revised pricing effective upon commencement of the next Renewal Term.
8.2 Termination. An Agreement may be terminated by either party if the other party commits a material breach of these Terms, Ancillary Terms or an Agreement and such breach is not cured within fifteen (15) days of the breaching party’s receipt of notice of the breach. In the event that You materially breach and fail to timely cure under any one Agreement with Wonderlic, Wonderlic may terminate all Agreements with You based on such uncured material breach. Any failure by You to timely make payment to Wonderlic in accordance with the terms of an Agreement shall be deemed a material breach.
8.3 Suspension of Services. You agree and acknowledge that Wonderlic may suspend or terminate Your access to the Services at any time in its sole discretion if (a) You are in breach of these Terms or an Agreement; (b) Your use of the Services could cause a risk of harm or loss to Wonderlic or other users; or (c) You are overdue on any payment owed to Wonderlic. When reasonable and as required by law, Wonderlic will provide you reasonable advance notice of a suspension as well as an opportunity to correct any actions that led to Wonderlic’s decision. Wonderlic may not provide advance notice of a suspension or termination if You are in material breach of these Terms, Ancillary Terms or an Agreement, if such notice could lead to civil or criminal liability for Wonderlic, or if providing notice would compromise Wonderlic’s ability to provide the Services to our other users. For the avoidance of doubt, Wonderlic may still make a determination that it does not want to continue offering You access to the Service at any time for any or no reason. Wonderlic’s sole liability for terminating Your access to the services without cause will be to refund any prepaid amounts for the reminder of the Term for Services to which Wonderlic refuses to provide You with access.
8.4 Survival. All provisions herein that would reasonably survive termination or expiration of an Agreement will survive termination or expiration of these Terms, Ancillary Terms and any Agreement.
9.1 Updates. Wonderlic may make deployments of changes, updates or enhancements to the Services at any time. Wonderlic may also add or remove functionalities or features, or Wonderlic may suspend or stop the Services altogether. Wonderlic specifically reserves the right to modify, suspend, or discontinue, temporarily or permanently, the Services or any service to which they connect, with or without notice and without liability to You. Wonderlic may from time to time provide enhancements or improvements to the features/functionality of the Services, which may include patches, bug fixes, updates, upgrades, and other modifications (“Updates”). Updates may modify or delete certain features and/or functionalities of the Services or delete or remove certain information (including Client Data) previously accessible in the Services. You agree that Wonderlic has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Services to You. You further agree that all Updates will be (i) deemed to constitute an integral part of the Services, and (ii) subject to these Terms and the terms of all applicable Agreements and Ancillary Agreements.
9.2 Third-Party Products and Third-Party Services. Wonderlic may make available to You third-party applications, services or products, for use in connection with the Services (“Third-Party Products”). Except as otherwise noted, these Third-Party Products are not necessary for the use of the Services and Your use of the Third-Party Products (and any exchange of any information, license, payments etc.) is solely between You and the applicable Third-Party Provider. In addition, Wonderlic may contract with Third Party Providers on Your behalf to arrange the provision of Third-Party Services or Third-Party Products. In some cases, Wonderlic may collect payment from You and remit payment to a Third-Party Provider for Third-Party Products or Third-Party Services provided to You. Such coordination is done for Your convenience only, and Wonderlic makes no representations or warranties of any kind and assumes no liability of any kind for Your use of such Third-Party Products or Third Party Services. If you have any questions or concerns regarding a Third-Party Product or Third-Party Services, then please contact the applicable Third-Party Provider.
9.3 Independent Contractor. The parties are independent contractors. Neither party is the agent of the other, and may not bind or represent the other in any way.
9.4 Equitable Relief. Each party agrees that any breach of Sections 3.1, 3.2, 3.3, 3.4, 3.7, 38, 3.9, 3.10, 6.2, and 7 would cause the injured party irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the non-breaching party will be entitled to injunctive relief against such breach or threatened breach, without the necessity of proving actual damages.
9.5 Jurisdiction. These Terms, Ancillary Terms and any Agreement shall be governed solely by the laws of the State of Illinois without reference to any principle conflicts of law. The parties consent to personal jurisdiction of the state courts located in Lake County, Illinois and the federal court located in Chicago, Illinois. The prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs in any action brought under or to enforce these Terms or an Agreement.
9.6 Notices. Wonderlic may send notices pursuant to these Terms, Ancillary Terms or any Agreement to Client’s email address and such notices will be deemed received when sent. Client may send notices pursuant to these Terms, Ancillary Terms or any Agreement to:
544 Lakeview Parkway
Vernon Hills, IL 60061
Notices to Wonderlic will be not be deemed received until Client obtains delivery confirmation or Wonderlic acknowledges receipt. A copy of all notices to Wonderlic must also be sent to Wonderlic via email at the email address above.
9.7 Force Majeure Events. The performance under these Terms, Ancillary Terms or an Agreement by either party is subject to Acts of God, war, terrorist attacks, weather, earthquake, other natural disasters, labor unrest, failure of the Internet or other forces beyond the performing party’s reasonable control (each, a “Force Majeure Event”) No delay or failure to perform will constitute a breach of this Agreement if it is due to a Force Majeure Event, provided that Client’s delay in making any required payment will not be excused. Except for Client’s payment obligations, the time for performance shall be extended for a period equal to the duration of the Force Majeure Event. Each party shall use reasonable efforts to minimize the delays, notify the other party promptly, and inform the other party of its plans to resume performance.
9.8 Currency. All payments shall be paid in U.S. dollars.
9.9 Assignment. Client may not assign these Terms, Ancillary Terms or an Agreement without Wonderlic’s prior written consent. Client agrees and acknowledges that Wonderlic may freely assign or delegate its rights and obligations under these Terms, Ancillary Terms or an Agreement. Except as set forth herein, these Terms, Ancillary Terms and all Agreements will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
9.10 Amendment. Wonderlic may amend, waive or modify these Terms in its sole discretion at any time upon notice to You. Your continued use of the Services or Third-Party Services after the effective date of any modification to these Terms will constitute Your acceptance of the new Terms. If You do not agree to the new Terms, You must provide written notice to Wonderlic within fifteen (15) days of receiving notice of such new Terms, and You are no longer authorized to use the Services and must immediately cease use of the Services and Wonderlic will have no obligation to return or refund any pre-paid fees through the end of the then-current Initial Term or Renewal Term.
9.11 Construction. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. No waiver of a breach of these Terms, Ancillary Terms or any Agreement will constitute a waiver of any prior or subsequent breach of these Terms, Ancillary Terms or any Agreement. In the event that a provision of these Terms, Ancillary Terms or any Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these Terms, Ancillary Terms or any Agreement will continue in full force and effect. These Terms, Ancillary Terms, any Agreement and the proposal and order set forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Any cause of action or claim You may have with respect to these Terms, any Agreement, any Ancillary Agreement, or the Services (including the output obtained therefrom) must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred. Wonderlic reserves the right to seek all remedies available at law and in equity for violations of these Terms, any Agreement, or any Ancillary Agreement, including, without limitation, the right to disable or prevent use of the Services.