Examinee Terms and Conditions: Testing Rules and Policies for the ACT WorkKeys Assessments

3. Items Brought to the Test

Neither ACT nor test staff shall be responsible for loss of or damage to any items that you bring to a test center. ACT may also restrict the items you bring to the test. Items you bring or wear including, but not limited to, hats, glasses, masks, purses, backpacks, cell phones, calculators, other electronic devices, pre-approved medications or personal aids, and watches, may be searched or inspected at the discretion of ACT and test staff. Searches may include the use of tools, such as handheld metal detectors that detect prohibited metal items. ACT may confiscate and retain for a reasonable period any item suspected of having been used, or capable of being used, in violation of these Terms and Conditions. ACT may also provide such items to, and permit searches of such items by, third parties in connection with investigations conducted by ACT or others.

5. Prohibited Behavior Observed or Suspected by Test Staff

Test staff may monitor you and others during the testing process. If they observe or suspect you are engaging in prohibited behavior, they have the right to discontinue your test and direct you to leave the test center, if applicable. Any such decision by test staff is final. Test staff may not give you a warning of any observed or suspected prohibited behavior before you are dismissed.

In some cases, test staff may allow an examinee to continue a test, but report observed or suspected prohibited behavior on an irregularity report that is submitted to ACT. ACT, in its sole discretion, may take action in response, which may include not scoring your test, or canceling a previously reported score. Any such decision or action by ACT is final.

7. ARBITRATION AGREEMENT

Arbitration is an alternative dispute resolution procedure intended to allow you and ACT to resolve issues without going to court. As described in this Section 7, certain Disputes between you and ACT will be submitted to an arbitrator, not a judge or jury, for resolution.

a. Arbitration of Disputes: You and ACT agree 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. You and ACT agree that a final arbitration award may be entered in a court which has jurisdiction.

By agreeing to arbitration, you and ACT are waiving the 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 you and ACT 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 7(f). Copies of the AAA Consumer Rules can be located on AAA's website at: www.adr.org. When an arbitration demand is properly and permissibly filed pursuant to this Section 7, you and ACT must promptly comply with the filing requirements, which for AAA arbitrations includes your obligation to pay AAA a non-refundable individual filing fee (unless AAA agrees to waive the fee for you or ACT is 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 otherwise 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 7(e) below.

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 7, neither you nor ACT may 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). You and ACT 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 ACT agree that arbitration demands that challenge score cancellation decisions made related to different tests or test administrations do not constitute "substantially similar arbitration demands."

In the event you or ACT are unable to seek resolution of a Dispute in arbitration due to this Section 7, you or ACT may seek resolution of the Dispute in court in accordance with Section 11. Neither you nor ACT may 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 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 7(c), any issues regarding whether the filing of an arbitration demand does or would violate this Section 7(e) and/or whether a court action may be filed pursuant to this Section 7(e) must be resolved in court in accordance with Section 11, 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 ACT agree to reasonably confer regarding a substitute arbitration forum or arbitrator. In the event you and ACT are 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, you and/or ACT 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 7, you or ACT may 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 ACT pursuant to the AAA Consumer Rules, and such action is within the jurisdiction of the small claims court, you and ACT agree to accept the judgment of the small claims court as a final resolution of the 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 ACT to 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 7 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 fullest extent possible, the invalid, illegal, or unenforceable provision shall be modified so that it is valid, legal, and enforceable and, to the greatest extent possible, reflects the intention of you and ACT as originally set forth in this agreement. If, however, a finding of invalidity, illegality, or unenforceability applies to (i) Section 7(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 7(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 ACT will 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 11 and you and ACT agree that any court proceedings will be stayed pending conclusion of any arbitration proceedings.

9. ACT Intellectual Property Rights and Confidentiality

a. Intellectual Property: All tests, test-related documents and materials, and test preparation materials (collectively, "ACT Materials") are copyrighted works owned by ACT and protected by the laws of the United States and other countries. In addition, ACT considers the tests to be trade secrets. The test questions and answers, test related secure documents, and other materials constitute highly confidential, proprietary testing information that ACT takes 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 ACT Materials. ACT WorkKeys tests and test questions (i.e., tests and test questions that are not made available by ACT to the general public) may not be copied, shared, discussed, or disclosed at any time or in any manner whatsoever. Test-related materials that ACT has made available to the general public, such as materials designated by ACT as practice or sample tests, may not be copied, duplicated, or used in any other works, in whole or in part, without the prior written approval of ACT.

c. Consequences for Violation of ACT Rights: ACT may 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. ACT Ownership of Answer Documents and Score Reports: ACT owns all answers and answer documents you submit, including all responses, and all score-related data maintained by ACT. Score reports that ACT provides you may not be altered, and, if ACT cancels 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.

11. Venue

Pursuant to Section 7, you and ACT have agreed to participate in binding arbitration (or small claims court proceedings if allowed under the AAA Consumer Rules) to resolve certain Disputes. You and ACT agree that any permissible court action (except for any permissible small claims court action), shall be brought exclusively in the US District Court for the Southern District of Iowa or a state court located in Johnson County, Iowa. You and ACT agree to submit to the personal jurisdiction of either of these courts, and to waive any objection they may have to the location of such court (including, but not limited to, any objection based on personal jurisdiction or venue in such courts).

13. Force Majeure

ACT shall 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. ACT will exercise commercially reasonable efforts to mitigate the extent of any excusable delay or failure to perform and any adverse consequences.

15. Questions Regarding These Terms and Conditions

You must agree to these Terms and Conditions, including the provisions regarding score cancellation and binding arbitration, as a condition to registering for and/or taking a test. If you have questions about these Terms and Conditions and you are under age 18, you should discuss them with your parent or guardian before registering for and/or taking a test.