Terms and Conditions of Use
Terms and Conditions of Use last updated: October 10, 2022
IMPORTANT: Please carefully read these Terms and Conditions of Use (the "Terms") before using Focus Clarifier.
By registering a Focus Clarifier account ("Account") and using assessments and resources provided on or through Focus Clarifier, you agree to be bound by these Terms, which contain important legal information about your rights and obligations and constitute a contract between you and Focus Clarifier.
Focus Clarifier may update or modify these Terms at any time. By continuing to use Focus Clarifier after such changes, you agree to be bound by the changes. You can tell when the Terms were last modified by viewing the “Last Update" date at the top. We encourage you to periodically review these Terms.
Additional Documents
The following documents are incorporated by reference into these Terms to the extent they apply to you or your use of Focus Clarifier:
Focus Clarifier Supervisor/Account Manager/User Agreement: If you register to use Focus Clarifier as the account manager or supervisor, you agree to the terms and conditions set forth in the Focus Clarifier Supervisor/Account Manager/User Agreement, available here.
Data Processing Agreement (EU Customers): If you are established in the European Union ("EU") or European Economic Area ("EEA") or otherwise subject to the General Data Protection Regulation ("GDPR"), please refer to the Data Processing Agreement (EU Customers, available here.
Focus Clarifier Privacy Policy: For information about Focus Clarifier's general collection and handling practices with respect to your information as a Focus Clarifier customer, please refer to Focus Clarifier's general Privacy Policy, available at https://www.FocusClarifier.com/general-privacy.
California Privacy Policy: California residents may review our California Consumer Privacy Act ("CCPA") disclosures available here.
General information
Focus Clarifier (Focus Clarifier) is a Florida Limited Liability Corporation. Focus Clarifier provides career assessments and resources. Focus Clarifier makes its online testing platforms and materials available to approved coaches, counselors, clinicians, and practitioners (each an "Approved User") for use with selected Focus Clarifier assessment tools. Using Focus Clarifier’s software application, Approved Users can remotely test clients and test clients in an office setting using online assessments, and generate reports based on responses gathered from clients.
By registering an Account to use our assessments and resources as a Focus Clarifier customer (a "Focus Clarifier Customer") and providing your e-mail address, you consent to receive e-mail, including commercial electronic mail messages, from Focus Clarifier to the e-mail address provided, unless you expressly revoke your consent in writing or by e-mail.
No clinical advice
Focus Clarifier does not provide clinical advice; diagnose conditions; or recommend or endorse any specific health care providers, procedures, or opinions. Focus Clarifier platforms, assessments, tests, interpretive reports, scores and/or results obtained on and through the Focus Clarifier platform and resources (collectively, the "Focus Clarifier Materials") are provided only to Approved Users and only for informational purposes.
The Focus Clarifier Materials do not constitute clinical advice and are not intended to be a substitute for professional psychological, psychiatric, or medical advice or diagnosis. The Focus Clarifier Materials must not be relied on for diagnosis, treatment, or other recommended course of action for any medical, psychiatric, or other health-related condition. Customers remain solely and exclusively responsible for all diagnostic, care, and/or treatment decisions for their clients.
Capacity of use
Entity or organization use
All Focus Clarifier Customers affiliated with or employed by an entity, group, business, or organization of any kind (an "Organization") must agree to the following:
Individual use
Focus Clarifier Customers who are not affiliated with or employed by an Organization must agree to the following:
Focus Clarifier Customer responsibilities
You assume full responsibility for all use of Focus Clarifier and Focus Clarifier Materials under your Account including, if applicable, use by others within your Organization. You agree that any person who accesses, uses, or misuses Focus Clarifier and Focus Clarifier Materials under your Account does so on your behalf and that you are responsible for all such activity under your Account, including, without limitation, any activity in violation of these Terms.
You acknowledge and agree that you are responsible for ensuring that all access and use of the Focus Clarifier Materials under your Account complies with all of the Terms, including the restrictions and requirements that follow. You agree to follow all reasonable instructions of Focus Clarifier in the use of the Focus Clarifier Materials.
Qualifications
“Focus Clarifier Customers” are required to submit information to establish professional credentials to acquire access to Focus Clarifier Materials. Specifically, you must provide accurate and current information pertaining to your identification, education, training, or other professional credentials ("Qualifications") required for the relevant tests to be acquired. You warrant and agree that you have not misrepresented any Qualifications for any reason, including to obtain access to tests for which you are not qualified.
You agree not to allow anyone to access or use Focus Clarifier Materials or to conduct or interpret the results of any Focus Clarifier assessment who has not been approved by Focus Clarifier.
Remote testing restrictions
Remote testing of adolescents and children aged 15 years and younger is prohibited.
Connectivity
Focus Clarifier will reasonably endeavor to ensure that Focus Clarifier and Focus Clarifier Materials are available at all times but does not guarantee 24/7 uptime.
Privacy and security
You are solely and exclusively responsible for implementing and communicating reasonable and appropriate privacy policies with respect to your clients.
You agree to submit reasonable and appropriate documentation as requested by Focus Clarifier to change critical security-related Account information for Focus Clarifier and Focus Clarifier Materials access and use.
You acknowledge and agree that you are solely and exclusively responsible for implementing and applying reasonable safeguards to protect the security of your Account, including maintaining the privacy of your password ("Password") and not sharing it with others and modifying or requesting modification of your Password when necessary; for example, if an authorized user leaves your employ or Organization. Focus Clarifier does not have access to Passwords, and, if you lose or forget your Password, you will have to create a new unique Password.
You are responsible for all activities under your Account, and you accept all risks for any unauthorized use of the Account. You agree to notify Focus Clarifier immediately if you suspect that a Password or an Account has been compromised or breached to enable Focus Clarifier in its discretion to investigate the circumstances and take such further action as required by law or as Focus Clarifier in its discretion deems appropriate.
Data retention and backup
You agree and acknowledge that you are solely and exclusively responsible for downloading, backing up, and maintaining backups of your data submitted to or generated by Focus Clarifier, including assessment results, and that you will not rely on Focus Clarifier for storage of such data or records.
Focus Clarifier reserves the right to delete a Focus Clarifier Account, including all associated client records and data, after a period of 12 months of inactivity on the Account.
Prohibited uses
You agree to comply with all applicable law governing your use of Focus Clarifier Materials, including its online platforms and any products or services provided by or made available through Focus Clarifier, and not to use any Focus Clarifier Materials for unlawful purposes.
You agree not to access or attempt to access the Focus Clarifier Materials other than through the uniform resource locators ("URLs") supplied by Focus Clarifier and not to access any API providing access to the Focus Clarifier Materials except where such API access has been explicitly granted by Focus Clarifier and subject to the interface specifications supplied by Focus Clarifier.
You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of Focus Clarifier or any activity being conducted on or through Focus Clarifier or take any actions that otherwise may cause damage to Focus Clarifier.
You agree not to resell Focus Clarifier products or services to people who are not your coaching clients or therapy patients. Focus Clarifier reserves the right to limit each Provider to 20 purchases per month unless the Provider and Focus Clarifier agree to a different limit in writing.
Indemnity obligation
You agree to indemnify, protect, save, and hold harmless Focus Clarifier and its officers, directors, employees, agents, servants, representatives, and contractors (collectively, "Focus Clarifier Indemnitees") from and against any loss, injury, damage, or expense (including, but not limited to, reasonable attorneys' fees) that arises out of or is related in any way to your use of Focus Clarifier or the use of Focus Clarifier Materials under your Account by any employee or other individual under your control and/or supervision, including any such use in violation of these Terms, and including claims by third parties.
Proprietary rights
The Focus Clarifier platforms and their content (including, but not limited to, all site design; text; data; interfaces; logos; button icons; legends; images; photographs; music; audio and/or video clips; titles; page headers; graphics; software; and the selection, arrangement, coordination, enhancement, and presentation of said elements) is the proprietary property of Focus Clarifier or its licensors or suppliers and is protected as to copyrights, trade dress, trademarks, and/or other intellectual property under United States law, or foreign law, or both.
Focus Clarifier grants you a limited, nonexclusive, and revocable license ("License") to use (and, if applicable, to permit employees or individuals acting on your behalf and under your control and/or supervision to use) Focus Clarifier and its tools to conduct assessments based on the tests acquired for use. This License does not authorize you to copy, reproduce, distribute, publish, transmit, modify, display, or create derivative or collective works from, or exploit any assessment tools, scores, results, information, or other content contained within or available on or through Focus Clarifier for any purpose.
Reservation of rights
Except for the limited License described above, you do not acquire any right, title, or interest in or to any intellectual property in Focus Clarifier or any assessment tools, information, or other content contained within or available on or through Focus Clarifier. All rights not expressly granted to you by these Terms are reserved by Focus Clarifier. Any access or use of Focus Clarifier except as expressly granted by these Terms is prohibited and may result in legal action.
Modification or termination
Focus Clarifier reserves the right, in its sole and absolute discretion at any time and without notice, (a) to suspend or terminate access to Focus Clarifier or any Accounts or registrations for any or no reason and (b) to modify (in whole or in part) Focus Clarifier, any products or services provided or available on or through Focus Clarifier, and their respective features and functionality. Focus Clarifier will not be liable to you or any third party for any modification, suspension, or termination of access to Focus Clarifier or other Focus Clarifier Materials or for loss of related information or other content.
Limitations on liability
Disclaimer of warranties
YOU USE FOCUS CLARIFIER AT YOUR OWN RISK. Focus Clarifier is provided "as is," "with all faults," and without warranty of any kind. Except and to the extent required by law, Focus Clarifier does not represent, warrant, or guarantee that (a) any Focus Clarifier Materials or any content available on or through Focus Clarifier will be reliable, available, timely, error-free, uninterrupted, accurate, complete, or suitable for any purpose or otherwise meet your requirements or expectations and (b) that any defects or errors will be corrected even if Focus Clarifier is aware of them.
Without limiting the generality of the foregoing and to the maximum extent permitted by law, Focus Clarifier disclaims all warranties relating to any Focus Clarifier Material whether express or implied, arising under statute, common law, custom, course of dealing, course of performance, usage of trade, or otherwise. This disclaimer includes, without limitation, all warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose, title, lack of viruses, and non-infringement.
Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
Exclusion of certain damages
To the maximum extent permitted by law, Focus Clarifier will not be liable to you or any other person for any special, incidental, indirect, collateral, consequential, exemplary, or punitive damages, whether in contract (including breach of warranty), equity, strict liability, negligence or other tort, failure to meet any duty (including, without limitation, any duty to act in good faith; to exercise commercially reasonable care; or arising out of any course of dealing, performance, usage, trade, or otherwise), or any other theory of liability arising out of or related in any way to (a) the use, misuse, inability to use, or performance of Focus Clarifier; (b) any error, omission, or inaccuracy contained within or any data, information, record, or results obtained through or resulting from the use of Focus Clarifier; or (c) any modification, corruption, or loss of data, records, or other information.
You further agree that this exclusion shall apply even if Focus Clarifier was advised of the possibility of such damages or such possibility was reasonably foreseeable and that this exclusion includes damages of any kind, including, without limitation, damages caused by delayed or lost use, loss of actual or potential business, goodwill, revenue, profits or savings, damages resulting from business interruption, loss of privacy, and liability to third parties. Some jurisdictions do not allow the exclusion of certain warranties or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
Maximum damages
To the maximum extent permitted by law, you agree that (a) Focus Clarifier’s total aggregated liability arising out or related to your use or inability to use Focus Clarifier, or to the Focus Clarifier Materials generally, will not in any event exceed one hundred U.S. dollars ($100.00 USD), and (b) this limitation applies regardless of whether liability is based on contract, warranty, negligence or other tort, strict liability, or any other theory. Some jurisdictions do not permit caps on damages, so the above limitation may not apply to you.
Application of limitations and exclusions
Except where otherwise prohibited, you agree that this section ("Limitations on liability"), including all subsections, will apply notwithstanding any failure of essential purpose of any remedy.
Waiver of class action or class arbitration
Except where prohibited, you agree that you will not bring, request, join, or participate in a class action or class arbitration proceeding as to any claim, demand, suit, or cause of action you may have against Focus Clarifier arising out of, relating to, or in any way connected with any Focus Clarifier Materials and you waive and relinquish any right you may now or in the future have to bring, request, join, or participate in any lawsuit or arbitration or other proceeding on a class action or consolidated basis or to participate as a representative or member of any class of claimants pertaining to any claim, demand, suit, or cause of action arising out of, relating to, or in any way connected with your use of any Focus Clarifier Materials. This provision does not constitute a waiver of any of your rights and remedies to pursue a claim individually and not on a class action, class arbitration, or consolidated basis or as a representative or member of any class of claimants.
Severability
Each provision, part, or paragraph in these Terms is severable. If any provision in these Terms is determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable under applicable law, the parties intend that the court shall modify the Terms (and the Terms shall be deemed to have been so modified), to the minimum extent necessary to conform to that law while preserving the parties' original intent as much as possible. Such modification will apply only to the operation of the modified provision in the jurisdiction where the adjudication or determination was made.
Survival
The following sections will survive the termination of these Terms or your right to use Focus Clarifier: Indemnity obligation, Proprietary rights, Reservation of rights, Limitations on liability (including all subsections), Waiver of class action or class arbitration, Severability, and Governing law and venue.
Governing law and venue
Any dispute arising under these Terms or relating to your use of Focus Clarifier will be governed exclusively by the substantive laws of the State of Florida (without application of its conflict of laws principles) and controlling federal law of the United States of America and resolved exclusively in the state or federal courts located in Lee County, Florida, United States. Each party irrevocably (a) consents to and submits to the mandatory jurisdiction of those courts; (b) waives any objection which such party now or hereafter may have to the institution or defense of any such suit, action, or proceeding in those courts; and (c) waives any defense or claim of inconvenient forum or improper venue. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the validity, construction, interpretation, or enforcement of these Terms.
Focus Clarifier Supervisor/Account Manager/User Agreement
Supervisor/Account Manager/User Agreement last updated: October 10, 2022
Focus Clarifier provides an online testing platform for selected Focus Clarifier assessment tools, providing coaches, counselors, therapists, and other practitioners with the capability for remote testing of clients. Focus Clarifier also provides a method for licensed users of select Focus Clarifier software products to purchase online administrations and use existing software to complete scoring and/or interpretation. As the Supervisor/Account Manager of the Focus Clarifier connection and account that will be used for online testing by me and other users within my organization, I hereby understand and acknowledge the following:
1. I possess the appropriate training, education, and expertise to use tests acquired for use by me and/or my organization.
2. I have previously submitted user information to Focus Clarifier to acquire access to tests. I have not misrepresented my identification, education, training, or other professional credentials to obtain access to tests for which I am not qualified. I understand that my access to tests is conditioned on my user qualifications being current and in good standing at all times.
3. I have read and thoroughly understand the rights provided to me and my obligations as the Supervisor/Account Manager.
4. I will supervise all users of Focus Clarifier that I may now or in the future establish or authorize on this account (each an "Additional User"), and I assume full responsibility for assigning the appropriate level of test access to each Additional User. I also assume full responsibility for adding new Additional Users and deleting Additional Users who are no longer qualified for access to various rights and privileges on Focus Clarifier.
5. Before I assign rights through my Focus Clarifier account to any Additional Users within my organization, I will read and thoroughly understand the rights and obligations that apply to such Additional Users. If I have any questions concerning such rights or obligations within Focus Clarifier, I will contact Focus Clarifier Customer Support at support@focusclarifier.com to resolve my question prior to assigning such rights.
6. I hereby acknowledge that my account may contain client data for a number of practitioners, and I assume full responsibility for establishing the account hierarchy to provide appropriate access to such client data.
7. I will instruct all Additional Users on the appropriate acquisition process required for Focus Clarifier uses and software products and will ensure that adequate safeguards are instituted such that all acquisitions will have the approval of me or my institution or other organization, and I will follow the acquisition procedure implemented within my organization.
8. I will instruct all Additional Users that administration of assessment instruments to adolescents and children 14 years of age and younger is prohibited. In addition, I understand that many jurisdictions ("Local Laws") restrict data collection from minors and that the relevant ages may vary. If applicable, I will instruct all Additional Users that the remote administration of assessment instruments to any children or adolescents younger than the age established by such Local Law (for example, 16 years of age and younger) is prohibited. I acknowledge and agree that I am solely responsible for identifying and complying with such additional restrictions applicable under Local Law.
9. I will indemnify, protect, save, and hold harmless Focus Clarifier and its officers, directors, employees, agents, servants, representatives, and contractors of, from, and against any loss, injury, damage, or expense (including reasonable attorneys' fees) that Focus Clarifier or any of its officers, directors, employees, agents, servants, representatives, or contractors may incur that shall arise out of, be connected with, or be in any manner related to my use or misuse of Focus Clarifier, the use or misuse of Focus Clarifier by any person in my organization, or the use or misuse of Focus Clarifier by any person provided access to Focus Clarifier by me or any person in my organization.
Additional stipulations
This Agreement also contains a number of stipulations that are specific to the use of Focus Clarifier by the Customer ("Additional Stipulations"), which have been included in the Focus Clarifier Terms and Condition of Use and/or additional disclosures contained in this Agreement. By accepting this Agreement, the Customer also agrees to be bound by the Additional Stipulations.
Data Processing Agreement (EU Customers)
Data Processing Agreement last updated: October 10, 2022
The following terms and conditions ("Data Processing Agreement") apply to Focus Clarifier Customers who register to use Focus Clarifier and have establishments within the European Union ("EU") or the European Economic Area ("EEA") or otherwise are subject to or required to comply with the General Data Protection Regulation (Regulation (EU) 2016/679) ("GDPR") (the "EU Customers").
This Data Processing Agreement is supplemental to the Focus Clarifier Terms and Conditions of Use ("Focus Clarifier Terms"), a copy of which is available on request and through the Focus Clarifier platform at https://www.FocusClarifier.com. Where there is any conflict between this Data Processing Agreement and the Focus Clarifier Terms, this Data Processing Agreement shall prevail.
Generally
This Data Processing Agreement is to be interpreted consistently with the definitions contained in the GDPR. For example, the term "Personal Data" shall have the meaning set out in Article 4(1) of the GDPR. "Processor" and "Controller" shall have the meanings set out in GDPR Articles 4(7) and 4(8), respectively. "Personal Data Breach" shall have the meaning set out in GDPR Article 4(12). This Data Processing Agreement is subject to and governed by the laws of the EU or Member State under which the EU Customer's Controller obligations arise.
Unless otherwise expressly stated, Focus Clarifier acts as the Processor, and the EU Customer is the Controller with respect to Personal Data entered or submitted by the EU Customer or its clients via Focus Clarifier.
Data processing information
Pursuant to Article 28 of the GDPR, the parties agree that Focus Clarifier will process Personal Data on behalf of the EU Customer in order to enable the EU Customer to conduct assessments and other tests on or through Focus Clarifier so long as the Terms remain in effect. The Personal Data to be processed may include demographic data, assessment responses, contact information, and medical information of the clients of the EU Customer.
Controller obligations
The EU Customer agrees to comply with its obligations under the GDPR.
Processor obligations
Focus Clarifier agrees to comply with its Processor obligations under the GDPR, including, without limitation, its obligations to:
Authorization
Pursuant to Article 28(3)(a) of the GDPR, Focus Clarifier will process Personal Data only on documented instructions of the EU Customer, including with regard to transfers of Personal Data to any other non-EU country, unless required by EU law that applies to Focus Clarifier. In the latter case, Focus Clarifier will inform the EU Customer of the legal requirement before such processing unless prohibited by EU law on important grounds of public interest. Focus Clarifier will inform the EU Customer if it believes a documented instruction to process Personal Data infringes on Article 28(3) of the GDPR.
Safeguards
Focus Clarifier will implement reasonable technical and organizational safeguards such as encryption and pseudonymization, stability and uptime, backup and disaster recovery, and regular security testing to safeguard Personal Data. Such safeguards will be appropriate to the relevant risks to the data subjects presented by the processing and by the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Personal Data processed, considering the state-of-the-art implementation costs and the nature, scope, context, and purposes of processing.
Focus Clarifier will implement reasonable administrative measures to ensure that Personal Data are processed only by authorized employees or individuals who have committed themselves to confidentiality and/or are under an appropriate statutory obligation of confidentiality.
Subprocessors
Pursuant to Article 28(2) and 28(4) of the GDPR, Focus Clarifier will not engage subprocessors without the EU Customer's prior specific or general written authorization. In the event that Focus Clarifier is authorized to engage a subprocessor, Focus Clarifier will ensure that such subprocessor is contractually or legally bound by all Processor obligations set forth in this Data Protection Agreement, and Focus Clarifier will be fully liable to the EU Customer for any failure by such subprocessor to fulfill such obligations.
Data subject rights
Focus Clarifier will assist the EU Customer by appropriate technical and organizational measures, to the extent possible and considering the nature of the processing, for the EU Customer to fulfill its obligation to respond to requests by data subjects to exercise their rights set out in Articles 12 to 23 of the GDPR.
If Focus Clarifier receives data subject access requests relating to Personal Data of which Focus Clarifier is the Processor and the EU Customer is the Controller, Focus Clarifier shall refer the data subject access request to the EU Customer. Except where prohibited, Focus Clarifier may charge the EU Customer for handling data subject access requests based on its usual time and materials rates (and without reference to any fee that may be charged by the EU Customer as Controller to the data subject under the GDPR).
Personal data breaches
Pursuant to Article 33(2) of the GDPR, Focus Clarifier will notify the EU Customer without undue delay on becoming aware of a Personal Data Breach.
Pursuant to Article 28(3)(f) of the GDPR, Focus Clarifier will assist the EU Customer in ensuring compliance with the EU Customer's obligations under GDPR Articles 32 to 34 with respect to any Personal Data Breach, including the EU Customer's notification, communication, and documentation obligations, considering the nature of processing and the information available to Focus Clarifier.
Data protection impact assessment or prior consultation
Pursuant to Article 28(3)(f) of the GDPR, Focus Clarifier will assist the EU Customer in ensuring compliance with the EU Customer's obligations to prepare any data protection impact assessment required under GDPR Article 35 or to consult with a data supervisory authority prior to processing activities and to furnish information relevant to such activities when required under GDPR Article 36.
Data disposition
Pursuant to Article 28(3)(g) of the GDPR, Focus Clarifier will delete or return (at the EU Customer's option) all the Personal Data to the EU Customer after the end of the provision of services involving processing of the Personal Data and delete existing copies unless storage of the Personal Data is required by EU or Member State law.
Compliance
Pursuant to Article 28(3)(h) of the GDPR, Focus Clarifier will make available to the EU Customer all information necessary to demonstrate compliance with the Processor obligations set out in Article 28 of the GDPR, and Focus Clarifier will allow for and contribute to audits, including inspections, conducted by the EU Customer or another auditor mandated by the EU Customer.
Aggregated data
The EU Customer agrees that data provided to Focus Clarifier may be aggregated with other data and used for analytical purposes. Where it is used for analytical purposes, Focus Clarifier will ensure that the data are effectively anonymized prior to such use and that no individual will be identifiable from the data once anonymized and aggregated.
EU Customer indemnity
To the extent permitted by law, the EU Customer shall indemnify and hold Focus Clarifier harmless against any claim from a data subject relating to a breach of the GDPR where Focus Clarifier is the Processor and is acting in compliance with this Data Processing Agreement.