Terms of Use/End User License Agreement - LockDown Browser

Last Updated: January 10, 2022

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE 
LOCKDOWN BROWSER SOFTWARE ("SOFTWARE"), THE INDIVIDUAL OR ENTITY 
INSTALLING OR USING THE SOFTWARE ("USER" OR "YOU") IS CONSENTING TO BE 
BOUND BY AND IS BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT 
("AGREEMENT"). IF USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS 
AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, 
AND USER MUST NOT INSTALL OR USE THE SOFTWARE. IF YOU ACCEPT THIS 
AGREEMENT ON BEHALF OF AN INSTITUTION OR ENTITY, YOU REPRESENT AND 
WARRANT THAT YOU ARE AUTHORIZED TO DO SO.

AS USED IN THIS AGREEMENT, "RESPONDUS" and "LICENSOR" SHALL MEAN 
RESPONDUS, INC.

If You have entered into a separate License Agreement with Respondus, in the 
event of a conflict between these Terms and those contained in the License 
Agreement, the terms of the License Agreement shall prevail.

If You are a Student under 18 years of age or an Institution with Students under 18 
years of age, You agree that You have obtained consent from a parent/legal 
guardian for use of the Software for educational uses by their minor child. By using 
the Software, You represent that a parent/legal guardian has agreed to this 
Agreement on your behalf. If You do not obtain such consent, then You are not 
authorized to use the Software.

1. LICENSE GRANT. Licensor gives you a personal, worldwide, non-assignable and 
non-exclusive license to use the Software provided to you by Respondus. This 
license is for the sole purpose of enabling you to use and enjoy the benefit of the 
Software as provided by Respondus, in the manner permitted by the terms of the 
Agreement.

You may not, and you may not permit anyone else to, (i) copy, modify, translate, 
create a derivative work of, reverse engineer, decompile or otherwise attempt to 
extract the source code of the Software or any part thereof; (ii) remove or alter any 
trademark, logo, copyright or other proprietary notices, legends, symbols or labels 
in the Software; or (iii) publish any results of benchmark tests run on the Software 
to a third party, unless this is expressly permitted or required by law, or unless you 
have been specifically told that you may do so by Respondus, in writing. You may 
not use LockDown Browser in any way which attempts to bypass the locked 
browser environment or subvert the purpose of the Software, including but not 
limited to using LockDown Browser in conjunction with applications or services 
designed to bypass the locked browser environment. This Software is intended only 
for use with a properly licensed, third-party learning management system (LMS). 

Unless Licensor has given you specific written permission to do so, you may not 
assign (or grant a sub-license of) your rights to use the Software, grant a security 
interest in or over your rights to use the Software, or otherwise transfer any part of 
your rights to use the Software.

2. SOFTWARE. The Software is only available via an electronic download. This 
license does not grant to User any right to receive from Respondus hard-copy 
documentation, support services, or enhancements or updates to the Software.

3. TERMINATION: This Agreement shall terminate automatically if you fail to comply 
with the limitations described in this Agreement. No notice shall be required from 
Licensor to effectuate such termination. Upon termination, you must destroy all 
copies of the Software.

4. PROPRIETARY RIGHTS. Title, ownership rights, and intellectual property rights in 
the Software and Documentation shall remain in Respondus and/or its suppliers. 
User acknowledges such ownership and intellectual property rights and will not 
take any action to jeopardize, limit or interfere in any manner with Respondus' or 
its suppliers' ownership of or rights with respect to the Software. The Software is 
protected by copyright and other intellectual property laws and by international 
treaties. Title and related rights in the content accessed through the Software is the 
property of the applicable content owner and is protected by applicable law. The 
license granted under this Agreement gives User no rights to such content.

5. UPDATES AND PRIVACY. The Software will periodically and automatically check 
the Respondus server for software updates. No information about your computer 
hardware and software is collected by Respondus, Inc. during this process. Instead, 
the LockDown Browser software retrieves information from the Respondus server 
and will display a message if an update is available. Our Privacy Policy is available 
at www.respondus.com/privacy and is incorporated by reference into this 
Agreement.

6. DISCLAIMER OF WARRANTY. THE SOFTWARE AND DOCUMENTATION ARE 
PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT 
PERMITTED BY APPLICABLE LAW, RESPONDUS, INC. FURTHER DISCLAIMS ALL 
WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF 
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND 
NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR 
PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION REMAINS WITH YOU.

7. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE 
LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR 
ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT 
OF THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT 
LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER 
FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR 
LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE 
LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH 
THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY 
PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM 
OF THE FEES USER PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE 
SOFTWARE RECEIVED BY RESPONDUS UNDER A SEPARATE SUPPORT AGREEMENT 
(IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE 
NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE 
LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW 
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, 
SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. RESPONDUS IS 
NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY 
USER OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR 
ANY MATERIAL LINKED THROUGH SUCH CONTENT.

8. INDEMNIFICATION. You agree to post, download, and archive only those 
materials for which you have the necessary patent, copyright and other 
permissions, licenses, and/or clearances. You agree to hold harmless, indemnify 
and defend Respondus, Inc., its officers, directors and employees, from and against 
any losses, damages, fines and expenses (including attorneys' fees and costs) 
arising out of or relating to any claims that you have distributed or copied any 
materials (other than materials provided by Licensor) in connection with the 
Software in violation of another party's rights or in violation of any law. If you are 
importing the Software from the United States, you shall indemnify and hold 
Licensor harmless from and against any import and export duties or other claims 
arising from such importation. Some government entities are prohibited by law 
from agreeing to certain indemnification provisions. This section will only apply to 
those entities to the extent allowable by law.

9. U.S. GOVERNMENT RESTRICTED RIGHTS: This Software and documentation are 
provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the 
Government is subject to restrictions set forth in subparagraphs (a) through (d) of 
the Commercial Computer Software--Restricted Rights at FAR 52.227-19 when 
applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and 
Computer Software clause at DFARS 252.227-7013, and in similar clauses in the 
NASA FAR supplement, as applicable. Manufacturer is Respondus, Inc. You are 
responsible for complying with all trade regulations and laws both foreign and 
domestic. 

10. U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that 
term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer 
software" and "commercial computer software documentation," as such terms are 
used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 
227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire 
the Software with only those rights set forth herein.

11. HELP CENTER TERMS: The Respondus Help Center is a group of services ("Help 
Services") provided by Respondus, Inc. that enable users of the Software, also 
referred to below as LockDown Browser, to troubleshoot technical issues. The 
Help Services include, for example, a webcam check, a system check, the ability to 
report an issue to Respondus, and links to a knowledge base and technical support.

Accepting the Terms

In order to use the Help Services, you must first agree to the terms ("Help Center 
Terms") as outlined herein. You may not use the Help Services if you do not accept 
the Help Center Terms. You can accept the Help Center Terms by: (A) clicking to 
accept or agree to the Help Center Terms, where this option is made available to 
you by Respondus in the user interface of the Help Services or other Respondus 
services; or (B) by otherwise using the Help Services. In any case, you understand 
and agree that Respondus will treat your use of the Help Services as acceptance of 
the Help Center Terms.

Data Collection

Respondus collects data to operate effectively and to strive to provide you with the 
best experience with LockDown Browser. You provide some of this data directly, 
such as when you contact us for support. Some data is obtained by recording how 
you interact with LockDown Browser by, for example, receiving error reports or 
usage data from software running on your device. Some data is obtained by how 
you interact with the assessment delivery system, such as the amount of time spent 
answering a question. The data we collect within the Help Services depends on the 
features you use, and includes the following:

Webcam & Microphone Check. The webcam and microphone check streams video 
and audio from your webcam to the Respondus servers. The video and audio can 
then be played back by you to ensure the webcam and microphone are working 
properly. The video and audio recorded during the webcam and microphone check 
is stored in temporary cache on the Respondus server and is automatically deleted 
in about an hour. Persistent storage is not used for these recordings, and 
Respondus does not provide a way to electronically identify the recordings as being 
transmitted from a specific user.

System Check. The System Check gathers certain information from your 
computing device, the networking environment, and the institution's Learning 
Management System.

All data gathered during the System Check is presented to you on your screen, 
including a unique System Check ID. The System Check does NOT contain 
username, user ID, or the password used to access the institution's Learning 
Management System.

You have the option to send System Check results by email, and if so, you must 
enter an email address for the recipient of the email message. If the System Check 
results are sent by email, log files from software of LockDown Browser are 
additionally transmitted to a Respondus server. Log files contain details of the 
interaction between LockDown Browser and your institution's Learning 
Management System, from the time you log into the Learning Management System 
using LockDown Browser until the session is exited or terminated. Log files are 
stored locally on your computer in an encrypted format and, if transmitted to 
Respondus, are sent in encrypted format over HTTPS. Log files do NOT contain user 
name, user ID, or the password used to access the institution's Learning 
Management System.

System Check data and log files may be sent to a Respondus web server or a third 
party cloud server for storage and further processing by Respondus. Respondus 
may use System Check data and log files to assist you with a technical issue. 
Respondus may also aggregate and analyze the System Check data to, for example, 
improve the Software or its technical support services. System Check data and log 
files aren't sold, distributed, or made available to affiliate or third party businesses.

Report An Issue. The Report An Issue feature enables you to provide feedback to 
Respondus about LockDown Browser. System Check data and log files, as described 
above, are collected by Respondus during this process. You are informed of this 
transfer of data each time the Report An Issue feature is used. You may choose, but 
you are not required, to provide an email address and contact information when 
using this feature. System Check data, log files, contact information, and feedback 
you provide may be sent to a Respondus web server or third party cloud server for 
storage and further processing by Respondus. No data transmitted to Respondus 
from the Report An Issue feature will be sold, distributed, or made available to 
affiliate or third party businesses.

Knowledge Base. A link to a knowledge base is included with the Help Services. No 
individual data is collected by Respondus during the use of the knowledge base, 
although Respondus may analyze aggregated usage data of the knowledge base to 
improve the service.

Technical Support. The Help Services contains a link that enables users to open a 
support ticket with Respondus. The System Check ID for the most recent System 
Check is automatically populated in the form used to create a support ticket. You 
must additionally enter your name and a valid email address through which 
communication with the Respondus support team will occur. Throughout the 
support process, you may, at your own discretion, provide personally identifiable 
information that will be used by the Respondus support team to analyze the issue 
and communicate with you. All communication between you and the Respondus 
team is stored on a Respondus web server, and may be used by Respondus to 
improve LockDown Browser.

12. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between 
the parties concerning the subject matter hereof. (b) Respondus may update these 
terms at any time and will notify you by posting the updated terms to the 
Respondus website. (c) Except to the extent applicable law, if any, provides 
otherwise, this Agreement shall be governed by the laws of the State of 
Washington, U.S.A., excluding its conflict of law provisions. (d) Unless otherwise 
agreed in writing, all disputes relating to this Agreement (excepting any dispute 
relating to intellectual property rights) shall be subject to final and binding 
arbitration in King County, Washington, with the losing party paying all costs of 
arbitration. (e) If any provision in this Agreement should be held illegal or 
unenforceable by a court having jurisdiction, such provision shall be modified to 
the extent necessary to render it enforceable without losing its intent, or severed 
from this Agreement if no such modification is possible, and other provisions of this 
Agreement shall remain in full force and effect. (f) The controlling language of this 
Agreement is English. If User has received a translation into another language, it 
has been provided for User's convenience only. (g) A waiver by either party of any 
term or condition of this Agreement or any breach thereof, in any one instance, 
shall not waive such term or condition or any subsequent breach thereof. (h) The 
provisions of this Agreement which require or contemplate performance after the 
expiration or termination of this Agreement shall be enforceable notwithstanding 
said expiration or termination. (i) User may not assign or otherwise transfer by 
operation of law or otherwise this Agreement or any rights or obligations herein 
except in the case of a merger or the sale of all or substantially all of User's assets 
to another entity. (j) This Agreement shall be binding upon and shall inure to the 
benefit of the parties, their successors and permitted assigns. (k) Neither party shall 
be in default or be liable for any delay, failure in performance (excepting the 
obligation to pay) or interruption of service resulting directly or indirectly from any 
cause beyond its reasonable control. (l) The relationship between Licensor and User 
is that of independent contractors and neither User nor its agents shall have any 
authority to bind Licensor in any way. (m) If any dispute arises under this 
Agreement, the prevailing party shall be reimbursed by the other party for any and 
all legal fees and costs associated therewith. (n) If any Respondus professional 
services are being provided, then such professional services are provided pursuant 
to the terms of a separate agreement between Respondus and User. The parties 
acknowledge that such services are acquired independently of the Software 
licensed hereunder, and that provision of such services is not essential to the 
functionality of such Software. (o) The headings to the sections of this Agreement 
are used for convenience only and shall have no substantive meaning.

13. USER OUTSIDE THE U.S. If User is located outside the U.S., then the provisions of 
this Section shall apply. (i) The parties confirm that this Agreement and all related 
documentation is and will be in the English language." (ii) User is responsible for 
complying with any national, regional, or local laws in its jurisdiction which might 
impact its right to import, export or use the Software, and User represents that it 
has complied with any regulations or registration procedures required by 
applicable law to make this license enforceable.

EULA 011022
