User Qualifications and Terms & Conditions

User Qualifications

You can more effectively use the talent measurement and risk management tools and services offered by FifthTheory on this website with relevant training, experience, skills and HR competencies. Assessment users should only use those assessments for which they have sufficient levels of training, education and/or experience.

By placing an order to purchase a FifthTheory assessment instrument or package you represent that you are qualified to make use of such tool(s) and services in a proficient and professional manner. In addition, you affirm that you intend to use the purchased tool(s) and services only for HR-related applications or other similar recommended purposes.

I hereby acknowledge that I have read this user qualifications guidance and reviewed all descriptive and supplemental information provided by FifthTheory for the assessment(s) which I am purchasing. I attest that I possess satisfactory knowledge, skills, and/or business experience to competently utilize such tool(s) in a professional and  ethical manner based on my training, education, experience or other relevant credentials. 

Also, I certify that I will properly use the assessment(s) purchased by me only for appropriate purposes in accordance with all applicable professional, ethical and legal guidelines, regulations and statutes. I realize that by providing false or misleading information, or by using the assessment(s) purchased by me in an unlawful manner I will be barred from purchasing FifthTheory assessments. Further, I understand that the assessment(s) and all collateral materials are copyrighted intellectual property owned by FifthTheory or its authors, and that any misappropriation by me or my assignee(s), shall be subject to legal action against me and my company/employer. 

By clicking the box next to ‘I Agree to the terms and conditions’ in your cart, you accept these qualifications and agree to abide by them.  If you do not accept these qualifications, do not continue with the purchase or further browsing of this Website, and close this Website now. 

I hereby accept and agree to FifthTheory’s expectations of user conduct in the use of its assessments.

Terms and Conditions

• Acceptance of Terms. Client agrees that these Terms and Conditions will govern the use of all Assessments and Services purchased under this agreement with FifthTheory, LLC (“FIFTHTHEORY”). These Assessments and  Services are listed in the order form. 

• Invoicing & Payment. FIFTHTHEORY shall invoice Client for all Assessments and Services ordered by Client under this Agreement.  Client agrees to pay all invoices within thirty (30) days of each order submitted.  Amounts past due are subject to interest at the maximum legal rate not to exceed 1.5% per month.  In the event that Client is in default of its payment or other obligations, FIFTHTHEORY may place a hold on delivery of Assessments and/or performing services until all past due amounts are paid or until default is cured.  FIFTHTHEORY will be entitled to recover from Client any costs (including attorneys' fees) incurred by FIFTHTHEORY in collecting and enforcing Client's payment and other obligations pursuant to these Terms and Conditions.  Prices are quoted in and must be paid in U.S. dollars.  Prices are subject to change without notice.  Client is responsible for all shipping fees and taxes, excluding taxes on FIFTHTHEORY’s income, associated with these Terms and Conditions.
  
  
• Reorders. All Terms and Conditions contained herein will remain in full force and effect, unaltered and unchanged for all Assessments and Services reordered under this Agreement.  The undersigned also acknowledges that future orders will only require the completion of the Order Form. All future orders will be subject to the prevailing price schedule at the time of the reorder.

• Returns. Returns are subject to the following terms:
  1. “Returns” of any Assessments are accepted within thirty (30) days of the purchase date of such Assessments and Client will receive either a full credit or a cash refund for such Returns (excluding shipping and handling).
  2. Client will receive a credit (excluding shipping and handling) to be applied to the purchase of another Assessment for Assessments returned after thirty (30) days but prior to ninety (90) days from the date of purchase. Assessments returned after thirty (30) days but prior to ninety (90) days are subject to a return fee of $25.00 per returned parcel or 20% of the dollar value of the returned Assessments, whichever is greater.
  3. Client will be responsible for all shipping and handling fees for all shipments from and to FIFTHTHEORY.
  4. Assessments and materials damaged in transit must be returned for exchange within fifteen (15) days from the date of shipment from FIFTHTHEORY.
  5. Proof of purchase and payment from FIFTHTHEORY is required in order to receive a refund or credit in accordance with the terms herein. A copy of the FIFTHTHEORY invoice or packing slip, or written notice referencing the invoice number, must be included with each return shipment.
  6. Client shall contact FIFTHTHEORY client services before returning any Assessments.
  7. Assessments must be in clean, saleable condition (unused and undamaged), in unopened sets or packages, as originally purchased.
  8. Return shipments must be sent prepaid and insured in a durable envelope or boxes to avoid damage, by a traceable method via United Parcel Service (UPS) or Insured Mail, return receipt requested, to: FIFTHTHEORY, ATTN: Returns Dept., 1220 N. Hoyne Ave., Suite B, Chicago, IL 60622.
  9. Return shipments must contain the name and telephone number of an individual who can be contacted regarding the return/exchange.

• Limitation of Liability/Warranty. IN NO EVENT WILL FIFTHTHEORY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, UNFORCEABLE, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF THE PURCHASE OR USE OF FIFTHTHEORY ASSESSMENTS OR SERVICES.  NOTWITHSTANDING ANY OTHER PROVISION OR AGREEMENT BETWEEN CLIENT AND FIFTHTHEORY, FIFTHTHEORY'S TOTAL LIABILITY TO ANY PARTY ARISING OUT OF THE PURCHASE OR USE OF FIFTHTHEORY ASSESSMENTS OR SERVICES WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO FIFTHTHEORY FOR THE ASSESSMENTS OR SERVICES PROVIDED.  EXCEPT, AS OTHERWISE EXPRESSLY STATED HEREIN, FIFTHTHEORY MAKES NO WARRANTIES WITH RESPECT TO THE ASSESSMENTS AND SERVICES.  ALL OTHER WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED.

• FifthTheory Proprietary Property. The Assessments provided to Client and the title thereto are and remain the proprietary property of FIFTHTHEORY and contain trade secrets and/or copyrighted intellectual property owned by FIFTHTHEORY or its affiliated authors. Client agrees to take reasonable steps to keep Assessments confidential and free from unauthorized use or access and will not divulge or make the Assessments available to any third party, excepting Client’s job applicants or employees.  Modification or copying, including any form of unauthorized reproduction, of any Assessments is strictly prohibited.  

• Infringement/Indemnification. If an infringement claim arises, or if FIFTHTHEORY becomes aware of the possibility of a claim, then FIFTHTHEORY may, in its discretion: (a) furnish Client with non-infringing replacement Assessments within sixty (60) days; or (b) repurchase Client’s unused Assessments.  This is Client’s exclusive remedy for any FIFTHTHEORY infringement.  Client agrees to indemnify and hold FIFTHTHEORY harmless against all claims, liabilities, demands, damages, or expenses (including reasonable attorneys’ fees and expenses) arising out of or in connection with Client’s: (a) use of the Assessments sold under this agreement; and/or (b) failure to perform its obligations.  Client agrees to hold FIFTHTHEORY, its employees, agents, officers, directors and contractors harmless from and against any breach of these terms and conditions, including any use of the services and assessments other than as expressly authorized in this Agreement and any claims brought by third parties arising out of Client’s use of FIFTHTHEORY services and assessments.

• Privacy and Data Security. Client will use FIFTHTHEORY’S web-based system, known as FIFTHTHEORY Fusion, to administer, score, and/or report results of the Assessments. Client shall undertake measures to protect any personal data against a security incident and to ensure the highest level of data security and privacy protection as required under applicable national and/or international law.  Client understands that FIFTHTHEORY, including FIFTHTHEORY Fusion, is a data processor, responsible for processing personal data on behalf of the Client in order to score the assessments and produce pertinent reports.  As a data processor, FIFTHTHEORY will act only on instructions from the Client and shall comply with security measures as required under the appropriate law for the protection of personal data. FIFTHTHEORY shall not retain, use, disclose, sell or lease Client’s data for any purpose, except as specified in the Agreement and otherwise permitted under applicable privacy law.

• Use of Assessments. Client agrees it is its responsibility to use any Assessments purchased from FIFTHTHEORY in accordance with applicable professional guidelines and laws and regulations.  Use of preemployment Assessments are subject to certain laws including, but not limited to, Title VII of the Civil Rights Act of 1964, as amended; the Americans with Disabilities Act, as amended; and other federal, state, local, and international laws and regulations, among others; and it is the Client's responsibility to determine the applicability of such laws/regulations to its particular situation.

• Onsite Printing Rights. Client understands that this Agreement also governs the use of all FIFTHTHEORY intellectual property that client has been granted the right to print and score. Any Assessment items that can be printed and scored, which will be provided to client as PDF files for the limited purpose of printing and scoring, are considered FIFTHTHEORY’S intellectual property. The following terms apply specifically to client’s obligations related to onsite printing and scoring of any relevant Assessment items. 

For printable assessments and support materials, FIFTHTHEORY will provide Client with an Assessment PDF to be printed for use in the administration of Assessments at the Client organization. All information contained in the Assessment PDF’s provided to Client and the title thereto are and remain the proprietary property of FIFTHTHEORY and contain copyrighted intellectual property owned by FIFTHTHEORY and/or its authors. The PDF file(s) shall be stored in a password protected manner on a company computer.

1. All self-printed booklets can only be scored with the FIFTHTHEORY Fusion online scoring platform using one prepaid scoring coupon per printed booklet.
2. Client agrees to take reasonable steps to keep printed Assessments and the Assessment PDF confidential and free from unauthorized use or access and will not divulge or make the Assessments available to any third party, excepting those to whom the Assessments will be administered, and then only for such purpose.
3. Modification of any Assessment in any form by Client is strictly prohibited.
4. Client will comply with and will require those individuals who will administer the Assessments to also comply with any and all training established by FIFTHTHEORY with respect to the use of these Assessments.  Training will address proper ways to print, quality check, and administer onsite printed assessment booklets.
5. FIFTHTHEORY will make its proprietary web-based pre-employment screening application – FIFTHTHEORY Fusion -- available to Client for use in scoring and reporting all printed assessments. Client use of FIFTHTHEORY Fusion is limited to that provided for in this Agreement.  All of the intellectual property rights terms and conditions listed in Onsite Printing Rights above apply to the PDF Assessments scored via FIFTHTHEORY Fusion.
6. FIFTHTHEORY acknowledges that test-taker information which is collected and processed as part of this Agreement will be the sole property of Client. As a data processor, FIFTHTHEORY may access and use the data solely: (a) as necessary to provide the services and products hereunder to Client; (b) to provide any mutually agreed upon reports for Client; (c) to comply with applicable laws and government orders and requests; and (d) to aggregate information in non-person or non-company specific form regarding the Assessments administered by Client (exclusively for research, development and norming purposes) and (e) for providing feedback to Client.

• Governing Law. These terms and conditions will be governed by and interpreted in accordance with the laws of the State of Illinois.  

• Survival. All provisions of this agreement which are by their nature intended to survive the expiration or termination of this Agreement shall survive such expiration or termination.

• Force Majeure. Neither party will be liable for any delays or other non-performance resulting from unforeseen circumstances or causes beyond their reasonable control (other than causes related to such party’s financial condition or the payment of money) provided that such party informs the other party of such delays and the causes thereof promptly upon their occurrence (including a reasonable estimate of any additional time required for performance) and provided such party uses best reasonable efforts to fulfill performance as soon as reasonably practicable.

• Third Party Beneficiaries. This agreement is for the sole benefit of the parties hereto and their respective successors or assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

• All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by first class mail or personal delivery (including overnight mail by private carrier) to the address for each party as set forth below. 

If to FifthTheory, LLC:                      

FifthTheory, LLC                                                    If to Client:
1220 N. Hoyne Avenue
Suite B
Chicago, IL 60622