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2. ����TVIntellectual Property Rights and Confidentiality

a. Intellectual Property: All ����TVtests, test-related documents and materials, and test preparation materials (“����TVMaterials”) are copyrighted works owned by ����TVand protected by the laws of the United States and other countries. ����TValso considers its tests to be trade secrets, and the test questions and answers as well as test-related secure materials constitute confidential, proprietary testing information that ����TVtakes every precaution to protect from disclosure beyond what is absolutely necessary for the purpose of administering a test.

b. Confidentiality: You agree to maintain the confidentiality of the ����TVMaterials. ����TVtests and test questions (i.e., tests and test questions that are not made available by ����TVto the general public) may not be copied, shared, discussed, or disclosed at any time or in any manner whatsoever.

c. Consequences for Violation of ����TVRights: ����TVmay pursue all available civil and criminal remedies if its intellectual property rights are violated, including seeking damages and injunctive relief in a court of law and referring such violations to law enforcement authorities for criminal prosecution.

d. ����TVOwnership of Answer Documents and Score Reports: ����TVowns all answers and answer documents you submit, including all essay responses, as well as all score-related data maintained by ACT. Score reports that ����TVprovides you may not be altered, and, if ����TVcancels the scores reflected on such score reports, you may not provide those scores or score reports to third parties. You do not have any property rights or interests in your actual test scores.

4. ARBITRATION AGREEMENT

Arbitration is an alternative dispute resolution procedure intended to allow the parties to resolve issues without going to court. As described in this Section 4, certain Disputes between you and ����TVwill be submitted to an arbitrator, not a judge or jury, for resolution.

a. Arbitration of Disputes: You and ����TVagree that any and all disputes, claims, or controversies (“Disputes”) (other than Disputes that solely involve infringement of intellectual property rights) that may arise between you and ACT—including but not limited to Disputes that relate in any way to these Terms and Conditions, registering for the Test, taking the Test, requesting or receiving accommodations or supports on the Test, the reporting of Test scores, the use or disclosure of personal information by ACT, or the cancellation of Test scores—shall be resolved by a single arbitrator through final and binding arbitration. The parties agree that a final arbitration award may be entered in a court which has jurisdiction.
By agreeing to arbitration, both parties are waiving their right to have Disputes subject to this arbitration agreement (including Disputes regarding statutory rights) brought before or decided by a judge or jury in state or federal court and are agreeing that any such Disputes will instead be resolved through final and binding arbitration.

b. Arbitration Process: The arbitration will be administered by the American Arbitration Association (“AAA”), under the AAA Consumer Arbitration Rules (“Consumer Rules”) in effect at the time a request for arbitration is filed with the AAA, unless the parties agree in writing to an alternate arbitration forum and/or different arbitration rules, or a substitute arbitration forum is agreed to or ordered pursuant to Section 4(f). Copies of the Consumer Rules can be located on AAA’s website at: . When an arbitration demand is properly and permissibly filed pursuant to this Section 4, you and ����TVmust promptly comply with the filing requirements, which for AAA arbitrations includes your obligation to pay AAA a non-refundable $200 filing fee (unless AAA agrees to waive the fee for you or ����TVis the Claimant) and ACT’s obligation to pay the remainder of the filing fee. The filing party must provide prompt notice of the filing of the arbitration demand to the other party. Each party will be responsible for its own attorney’s fees and expenses incurred in connection with the arbitration, regardless of the outcome of the arbitration, except as required by applicable law.

c. Arbitrator Jurisdiction: Any issues regarding the enforceability of this arbitration agreement or whether a Dispute is subject to this arbitration agreement will be decided solely by the arbitrator, except in the case of Disputes that solely involve infringement of intellectual property rights or as set forth in Section 4(e).

d. Individual Arbitration: Class Action Waiver: No arbitration may be brought or maintained as a class action or a collective action. All arbitration demands must be filed on an individual examinee basis. The arbitrator shall not have the authority to combine, consolidate, or aggregate the Disputes of more than one individual, conduct any class proceeding, make any class award, or make an award to any person or entity not a party to the arbitration.

e. Multiple Demands: Notwithstanding the arbitration agreement set forth in this Section 4, neither you nor ����TVmay file an arbitration demand or arbitrate a Dispute if your arbitration demand or ACT’s arbitration demand would be one of more than 50 substantially similar arbitration demands filed within a consecutive 12-month period by or with the assistance or coordination of the same law firm(s) or organization(s), and both parties agree that AAA (or any substitute arbitration forum) may not accept any such arbitration demand for filing or invoice or collect any filing or other fees for any such arbitration demand. You and ����TVagree that arbitration demands that challenge score cancellation decisions made in different Individual Score Reviews do not constitute “substantially similar arbitration demands.”

In the event you or ����TVare unable to seek resolution of a Dispute in arbitration due to this provision, you or ����TVmay seek resolution of the Dispute in court in accordance with Section 6. Neither you nor ����TVmay file a court action pursuant to this provision, however, unless the other party is provided prior written notice identifying all the substantially similar arbitration demands that have been or will be filed so as to trigger coverage under this provision, with such notice to be provided at least 30 days prior to the filing of any such court action. Notwithstanding Section 4(c), any issues regarding whether the filing of an arbitration demand does or would violate this Section 4(e) and/or whether a court action may be filed pursuant to this Section 4(e) must be resolved in court in accordance with Section 6, and no proceedings may be conducted before, and no fees may be invoiced or collected by, AAA (or any substitute arbitration forum) pending resolution of any such issues in court.

f. Substitute Arbitration Forum: If, for any reason, AAA is not available as an arbitration forum, you and ����TVagree to reasonably confer regarding a substitute arbitration forum or arbitrator. In the event you and ����TVare not able to reach agreement on a substitute arbitration forum or arbitrator within 14 days of the first communication on the topic between the parties, either party or both parties may submit the issue to the U.S. District Court for the Southern District of Iowa or a state court located in Johnson County, Iowa, for the sole purpose of seeking a declaratory judgment naming a substitute arbitration forum or arbitrator.

g. Small Claims Court: Notwithstanding the arbitration agreement set forth in this Section 4, either you or ����TVmay take a claim to small claims court instead of arbitration if the claim is within the jurisdiction of the small claims court, but only if and as permitted in the AAA Consumer Rules. If an action in small claims court is instituted by you or ����TVpursuant to the AAA Consumer Rules, and such action is within the jurisdiction of the small claims court, you and ����TVagree to accept the judgment of the small claims court as a final resolution of the parties’ Dispute and not to appeal the small claims court’s decision or pursue any other claim relating to that Dispute in court or arbitration. Each party will be responsible for its own attorney’s fees and expenses incurred in connection with the small claims proceeding, regardless of the outcome, except as required by applicable law.

h. Applicable Law: The Federal Arbitration Act (“FAA”) applies to and governs this arbitration agreement, including interpretation and enforcement of the agreement, and preempts all state laws to the fullest extent permitted by law. Rulings in other arbitrations involving ����TVto which you are not a party may not be relied upon as binding precedent or be given preclusive effect in any arbitration or court proceeding involving you.

i. Severability: If any provision in this Section 4 is held by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way; and, to the greatest extent possible, the invalid, illegal, or unenforceable provision shall be modified so that it is valid, legal, and enforceable and, to the fullest extent possible, reflects the intention of the parties as originally set forth in this agreement. If, however, a finding of invalidity, illegality, or unenforceability applies to (i) Section4(d) so as to allow for class, collective, combined, consolidated, or aggregated arbitration, or to allow for an award to any person or entity not a party to the arbitration, or (ii) Section 4(e) so as to allow for more than 50 substantially similar arbitration demands to be filed within a consecutive twelve-month period by or with the assistance or coordination of the same law firm(s) or organization(s), the arbitration agreement between you and ����TVwill be unenforceable in its entirety except with respect to any claim(s) and/or remedies sought on an individual basis; the remainder of the Dispute will be resolved in court in accordance with Section 6 and the parties agree that any court proceedings will be stayed pending conclusion of any arbitration proceedings.

6. Governing Law

If you take the Test outside the United States, these Terms and any and all Disputes between you and ����TVarising out of or relating to these Terms, whether in contract, tort, or statute, shall be governed by the laws of the State of Iowa, without regard to conflict of law principles or other rules that would result in the application of the laws of a different jurisdiction and subject to the applicability of the Federal Arbitration Act as stated in Section 4(h), as well as applicable United States federal law.

8. Waiver and Severability

Any failure by either party to insist upon strict performance of any of these Terms shall not be deemed a waiver of its rights unless such waiver is in writing signed by the party against whom it is asserted. Any waiver of any right hereunder at any time shall not be deemed a waiver of any other right. If any provision or part of these Terms is held by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way; and, to the greatest extent possible, the invalid, illegal, or unenforceable provision shall be modified so that it is valid, legal, enforceable and reflects the original intention of the parties.

10. Force Majeure

����TVshall not be liable for any delay or failure to perform when such delay or failure is due to causes or circumstances beyond ACT’s control, including, without limitation: your actions or failure to comply with the requirements of ACT; national emergencies, fire, flood, inclement weather, epidemics, pandemics, or catastrophes; acts of God, governmental authorities, or parties not under the control of ACT; insurrection, war, riots; or failure of transportation, communication, or power supply. ����TVwill exercise commercially reasonable efforts to mitigate the extent of any excusable delay or failure to perform and any adverse consequences. 

Examinee Statements, Certification, and Signature

1. Statements:

I understand that by registering for, starting, or submitting answer documents for the test, I am agreeing to comply with and be bound by the Terms and Conditions: Testing Rules and Policies for the ����TVWorkKeys Test (“Terms”).

I UNDERSTAND AND AGREE THAT THE TERMS LIMIT DAMANGES AVAILABLE TO ME AND REQUIRE ARBITRATION OF CERTAIN DISPUTES. BY AGREEING TO ARBITRATION, ACT, AND I BOTH WAIVE THE RIGHT TO HAVE THOSE DISPUTES HEARD BY A JUDGE OR JURY.

I understand that ����TVowns the test questions and responses, and I will not share them with anyone by any form of communication before, during, or after the test administration. I understand that taking the test for someone else may violate the law and subject me to legal penalties. I consent to the collection and processing of personally identifying information I provide, and its subsequent use and disclosure, as described in the ����TVPrivacy Policy (). If I am taking the test outside of the United States, I also permit ����TVto transfer my personally identifying information to the United States, to ACT, or to a third-party service provider, where it will be subject to use and disclosure under the laws of the United States, including being accessible to law enforcement or national security authorities.

2. Certification:

I agree to the Statements above and certify that I am the person whose information appears on this form.