ROSALYN.AI END USER TERMS OF USE
Revised March 22, 2022
These End User Terms of Use (the “Terms”) are a binding legal agreement, entered into by you and Rosalyn, Inc., and made effective as of your first use of the Rosalyn, Inc. examination proctoring service (the “Service”). If you do not accept these terms and agree to be bound by them, you shall not use or access the Service. Your use of the Services represents your agreement to these Terms, including your agreement to arbitrate claims. You agree to be bound by these terms, including Exhibit A regarding Arbitration, Rosalyn.ai Application and Service Privacy Policy (LINK), and when applicable Rosalyn’s Consent Form, which are hereby incorporated by reference herein.
These Terms contain an agreement to arbitrate all claims, waive class actions, and waive jury trials; disclaimers; and limitations of liability. Please read these terms carefully.
You may be referred to herein as “you”, “your”, and “End User”.
Rosalyn, Inc. is referred to herein as “Rosalyn”.
The individual or organization that is administering your examination is referred to herein as the “Test Provider”. The Test Provider may be your school, university, an individual professor, or another examiner. The Test Provider is ultimately in control of, and solely responsible for, any actions taken with respect to you and your exam, including but not limited to, the assessment of any penalty, the grading or evaluation of your exam, or any other management or control of your exams and grades.
1.
The Remote Proctoring Service
a.
The Rosalyn remote exam proctoring service (the “Service”) provides Test Providers with functionality designed to detect, prevent, and deter cheating on exams given to you, the test-taker. The Service uses a human-in-the-loop methodology, with a “Human Proctor” (as defined below).
The “Human Proctor” is the human designated by the Test Provider that shall oversee your exam and may take actions with respect to you and your behavior during the exam. Such actions may include, but are not limited to, sending messages to you during the exam, pausing and resuming the exam while you rectify an alert situation, ejecting you from the exam, or otherwise proctoring or monitoring your taking of an exam.
You may use the Service solely for your own internal, personal, non-commercial use, and only in a manner that complies with all applicable laws. You shall not allow any third-party to use the Service on your behalf. Rosalyn expressly reserves all rights in the Service and any underlying software, platforms or other technologies not expressly granted to you in these Terms. You agree not to attempt to disassemble, decompile, or otherwise reverse engineer the Service or any portion thereof.
Your personal information will be collected, used, and otherwise handled in accordance with the Rosalyn.ai Application and Service Privacy Policy (LINK).
Rosalyn reserves the right to refuse, suspend, or cancel any exam or any exam results, in its sole discretion. You agree that Test Providers shall be solely responsible for the content of any exam, any results thereof, and any determination or action taken due to information provided by the Service.
The “Human Proctor” is the human designated by the Test Provider that shall oversee your exam and may take actions with respect to you and your behavior during the exam. Such actions may include, but are not limited to, sending messages to you during the exam, pausing and resuming the exam while you rectify an alert situation, ejecting you from the exam, or otherwise proctoring or monitoring your taking of an exam.
You may use the Service solely for your own internal, personal, non-commercial use, and only in a manner that complies with all applicable laws. You shall not allow any third-party to use the Service on your behalf. Rosalyn expressly reserves all rights in the Service and any underlying software, platforms or other technologies not expressly granted to you in these Terms. You agree not to attempt to disassemble, decompile, or otherwise reverse engineer the Service or any portion thereof.
Your personal information will be collected, used, and otherwise handled in accordance with the Rosalyn.ai Application and Service Privacy Policy (LINK).
Rosalyn reserves the right to refuse, suspend, or cancel any exam or any exam results, in its sole discretion. You agree that Test Providers shall be solely responsible for the content of any exam, any results thereof, and any determination or action taken due to information provided by the Service.
b.
You are hereby granted a license to use the Services solely for the purpose of taking an exam provided by a Test Provider.
2.
Communications
Rosalyn and the Test Provider will communicate with you in order to enable your exam(s) with the Test Provider, for authentication of your identity, and other notifications associated with your exam(s). You hereby consent to accept and receive such communications from us, including e-mail. These communications are transactional in nature and may be generated by automated systems, for the purposes mentioned above.
Depending on your current carrier plan, you may incur charges for e-mail and agree you will not hold, nor participate in any action which seeks to hold, Rosalyn liable for any charges incurred. We shall have no liability for transmission delays or message failures.
You will be unable to opt-out of receiving certain communications that are strictly necessary for your use of the Service, such as e-mails related to your exams. You may opt-out of receiving other communications by following the unsubscribe options provided therein.
You acknowledge that any terms between you and any third-party provider create no obligation or responsibility on the part of Rosalyn, and that Rosalyn is not responsible for any failure of warranty by any such third party.
Depending on your current carrier plan, you may incur charges for e-mail and agree you will not hold, nor participate in any action which seeks to hold, Rosalyn liable for any charges incurred. We shall have no liability for transmission delays or message failures.
You will be unable to opt-out of receiving certain communications that are strictly necessary for your use of the Service, such as e-mails related to your exams. You may opt-out of receiving other communications by following the unsubscribe options provided therein.
You acknowledge that any terms between you and any third-party provider create no obligation or responsibility on the part of Rosalyn, and that Rosalyn is not responsible for any failure of warranty by any such third party.
3.
Account Security
a.
Age of Majority. You warrant that you are 13 years old or older. If you are under the age of13, you shall not use the Service or send any of your personal information to us.
b.
Non-Transferable. Accounts are non-transferable absent the prior written consent of Rosalyn. You shall be solely liable for any and all activity associated with your account or occurring using your credentials. You shall not disclose your account credentials to any third-party.
4.
Use of Your Information
Rosalyn may collect, use, and/or store your information to confirm your identity and proctor your behavior to maintain exam integrity. Such information may include, but is not limited to, data and metrics collected from your computer or other device during your taking of any tests proctored via the Service (the “Data”), including but not limited to video and audio feeds captured by your computer or other device, keyboard inputs, and mouse inputs.
5.
At the start of each exam, you may be given the option to consent to Rosalyn’s use of the Data to train Rosalyn’s artificial intelligence algorithms. If you provide such consent, Rosalyn shall retain it for such training purposes indefinitely, or until you withdraw your consent.
You hereby grant to Rosalyn an irrevocable, worldwide, perpetual, transferable, sublicensable right to process, copy, make derivatives from, and otherwise use the Data for the purposes of making the Services operable, and to improve upon and develop the Services and related features. You agree that Rosalyn may share Data with third parties for the purposes of making the Service operable and to improve the Service. You further agree that Rosalyn may use the Data to train Rosalyn’s artificial intelligence algorithms, subject to your aforementioned consent.
Upon the detection of suspicious activity, Rosalyn will alert the Test Provider’s Human Proctor for further action.
You hereby grant to Rosalyn an irrevocable, worldwide, perpetual, transferable, sublicensable right to process, copy, make derivatives from, and otherwise use the Data for the purposes of making the Services operable, and to improve upon and develop the Services and related features. You agree that Rosalyn may share Data with third parties for the purposes of making the Service operable and to improve the Service. You further agree that Rosalyn may use the Data to train Rosalyn’s artificial intelligence algorithms, subject to your aforementioned consent.
Upon the detection of suspicious activity, Rosalyn will alert the Test Provider’s Human Proctor for further action.
6.
Ownership of the Services
Rosalyn owns the Services, its underlying platforms, software, and other technologies, all content thereon, all modifications, enhancements, and updates thereof, and all intellectual property rights therein.
7.
Relationship with the Test Provider
You acknowledge that you are taking an examination administered by the Test Provider and not by Rosalyn.
Issues with Exams. The Test Provider shall be solely responsible for any issues or questions related to or arising from examinations, including but not limited to issues relating to exam content, grading, and detections of suspicious activity.
Issues with Exams. The Test Provider shall be solely responsible for any issues or questions related to or arising from examinations, including but not limited to issues relating to exam content, grading, and detections of suspicious activity.
8.
Term
These Terms shall remain in effect from your first use or access of the Service until terminated per the terms herein. The following sections of these Terms shall survive its termination for any reason and remain in effect in perpetuity: 1.a., 2, and 4 – 15. Your access to the Service and/or these Terms: a.) may be terminated at any time at Rosalyn’s sole discretion; and b.) shall be terminated upon the Test Provider’s cancellation of its use of the Service. You may terminate these Terms by ceasing use of the Service and contacting contact@rosalyn.ai. These Terms shall be superseded upon your agreement to updated End User Terms of Use for the Rosalyn remote exam proctoring service.
9.
Adherence with Laws
You agree to comply fully with all applicable laws and regulations with respect to your use of the Services. You represent and warrant that your use of the Services shall not infringe upon or otherwise misappropriate the intellectual property rights of any third party.
10.
No Warranty
THE SERVICES ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. ROSALYN EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ROSALYN OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.
11.
Limitation of Liability
ROSALYN’S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED $100. IN NO EVENT WILL ROSALYN BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ROSALYN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
12.
Indemnification
You shall indemnify and hold harmless Rosalyn from and against any claim, damages, loss, and expenses, including attorney’s fees (“Claim”) arising from or related to your use of the Services, including but not limited to any Claim arising from or related to: a.) your violation of these Terms; b.) your violation of any applicable law or regulation; and c.) your violation of any terms between yourself and any Test Provider.
13.
Other Terms
These Terms constitute the complete understanding and agreement between the parties with respect to the subject matter contained herein, and supersedes all previous agreements, representations, warranties, statements, negotiations, understandings and undertakings, whether written or oral, pertaining to such subject matter. These Terms are governed by and construed in accordance with the laws of the State of California excluding the U.N. Convention on Contracts for the International Sale of Goods and that body of laws known as conflicts of law. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision of the Terms will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. Rosalyn may assign these Terms at its sole discretion.
Agreement to Arbitrate; Waiver of Class Action. If you are located in the United States, you agree to resolve disputes only on an individual basis, through arbitration pursuant to the provision of Exhibit A. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or opposes to act in a representative capacity.
Agreement to Arbitrate; Waiver of Class Action. If you are located in the United States, you agree to resolve disputes only on an individual basis, through arbitration pursuant to the provision of Exhibit A. The parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or opposes to act in a representative capacity.
14.
Privacy and Other Policies
Use of the Service is also subject to the Rosalyn.ai Application and Service Privacy Policy, located at this (LINK). The Privacy Policy, and when applicable, Rosalyn’s Consent Form, noted at (LINK), are incorporated into these Terms by this reference. Additionally, you understand and agree that Rosalyn may contact you via email or otherwise with information relevant to your use of the Services, regardless of whether you have opted out of receiving marketing communications or notices.
15.
Choice of Law and Forum
These Terms shall be governed by and construed under the laws of the State of California, U.S.A., as applied to agreements entered into and to be performed in California by California residents. Except as provided in Exhibit A, the Parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Santa Clara County, California and the federal courts in the Northern District of California.
16.
Modifications
The Service and these Terms may be modified by Rosalyn at any time with conspicuous notice to you. The following types of notice shall be deemed conspicuous and anyone of the following shall be sufficient with respect to providing such notice of modification: e-mail notice, or an announcement presented upon signing onto the Services. Please check these Terms regularly. Your continued use of the Services after such notice shall constitute your acceptance of such modifications.
17.
Waiver and Severability
Failure by either Party to exercise any of its rights under, or to enforce any provision of, these Terms will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of these Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of these Terms will remain in full force and effect.
18.
Contact Us
You may contact us with any comments, questions, or suggestions you might haveregarding these Terms or the services at:
Rosalyn, Inc.
6605 Longshore Street #240
Dublin, OH 43017
contact@rosalyn.ai
Rosalyn, Inc.
6605 Longshore Street #240
Dublin, OH 43017
contact@rosalyn.ai
Exhibit A
Binding Arbitration
This Exhibit A to the Terms describes further provisions which apply to the Binding Arbitration and Class Action Waiver.
1.
Disputes. A dispute is any controversy between you and Rosalyn concerning the Services, any software related to the Services, privacy issues and/or claims related to the Services, your account, Rosalyn’s advertising, marketing, or communications, or any term related to these Terms or the relationship between you and Rosalyn, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of Rosalyn’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution, to contact@rosalyn.ai.
2.
Small Claims Court Available. You may initiate an action in your local Small Claims Court if you meet the court’s requirements. However, if such a claim is transferred, removed or appealed to a different court, Rosalyn reserves the right to require arbitration.
3.
Arbitration Procedure. Disputes not resolved pursuant to Small Claims Court shall be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see adr.org. Arbitration hearing swill take place in the federal judicial district of your primary location. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive Law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
4.
Arbitration Fees. If You are unable to afford the arbitration costs, Rosalyn will advance those costs to you, subject to the arbitrator’s determination if costs should be reimbursed to Rosalyn if Rosalyn prevails. For disputes involving more than $75,000, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
5.
Conflict with AAA Rules. These Terms govern if there is a conflict with the AAA’s Commercial Arbitration Rules.
6.
Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under these Terms must be filed in Small Claims Court or noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
7.
Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.
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