UPDATED: February 25, 2019
PLEASE BE ADVISED: IF YOU PROVIDE YOUR EXPRESS WRITTEN CONSENT (DEFINED BELOW) TO THIS AGREEMENT, YOU WILL BE SUBJECT TO PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND COMPANY MAY HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE ‘DISPUTE RESOLUTION AND ARBITRATION’ IN SECTION 4 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST COMPANY TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED BELOW.
The testprepelite.com website (“Website”) and its matching and related services for students who are seeking tutors, matching and related services for tutors who seek to advertise and provide their services to potential students on our Platform, customized learning, test preparation provider connecting, and/or educational content and learning tools (the “Service”) are owned and operated by Company. From time to time, tutors advertise and provide their tutoring services (or seek to do so) to potential students obtained through our Platform (a “Tutor”) and Company may negotiate an independent contractor agreement with such a Tutor for purposes of the Tutor advertising and providing their services for potential students. Individuals, groups, entities, etc. also, from time to time, locate and obtain a Tutor (or seek to do so) through Company’s Platform (a “Student”). Company has adopted this Agreement to make you aware of the terms and conditions of your use of the Website and the Service. By using the Website and/or the Service, you agree to be bound by certain terms of this Agreement and acknowledge that Sections 3 and 4 are not binding upon you unless you provide your express written consent, as more fully described below.
By entering this Agreement, you expressly acknowledge that you understand this Agreement. You also expressly acknowledge that the Consent to Communications (Section 3) and the Dispute Resolution and Arbitration (Section 4) provisions of this Agreement are only binding on you if you have provided express written consent by calling Company, booking a consultation, working as a tutor, or signing up for a tutoring program (“Express Written Consent”). Express Written Consent is not required to be bound by the terms of this Agreement except for Sections 3 and 4, which require Express Written Consent. IF YOU HAVE NOT PROVIDED YOUR EXPRESS WRITTEN CONSENT, YOU ARE NOT BOUND BY THE CONSENT TO COMMUNICATIONS (SECTION 3) OR THE DISPUTE RESOLUTION AND ARBITRATION (SECTION 4) PROVISIONS OF THIS AGREEMENT. IF YOU HAVE NOT PROVIDED YOUR EXPRESS WRITTEN CONSENT AND DO NOT WISH TO BE FURTHER BOUND BY ANY TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE PLATFORM OR YOUR USE OR ACCESS MAY BE LIMITED AS DETERMINED BY COMPANY IN ITS SOLE DISCRETION.
The terms “you,” “your” or “User(s)” refers to any individual accessing the Website or the Service for his/her/its own personal purposes, on behalf of an entity or other person, for purposes related to Tutors and the Service provided to Tutors, and for purposes related to Students and the Service provided to Students. In the event that you purport to be the agent of, represent, or otherwise act on behalf of an entity or any other person, references to “you,” “your” or “User(s)” shall include you individually and any such entity or person that you purport to represent, and you further represent and warrant that you are in fact an authorized representative of such entity or other person, that you have the authority to bind such entity or other person to this Agreement, and that your acceptance of this Agreement (including if you have provided your Express Written Consent to its terms) shall constitute acceptance on behalf of such entity or person.
The disclaimers, terms, and conditions on these pages are of general application and may be supplemented upon a purchase by a Consent to Electronic Communications Delivery and Electronic Signature Policy, Terms of Customer Account Use, Customer Terms of Account Use, Independent Contractor Agreement and/or by additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application disclosed by Company, as set forth in these referenced documents, if any. The above supplements to the Agreement may include such supplements as appear on any particular page of this Website, Platform, or through what is purchased, or through a registration process or other means. In the event of a conflict between the Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms or conditions of specific application shall control.
By using or otherwise accessing the Website or the Service, posting or downloading content or any other information to or from the Website or the Service, or manifesting your assent to this Agreement in any other manner, you hereby unequivocally and expressly agree to, and shall be subject to, this Agreement (except for Sections 3 and 4 which you will not be subject to and are not binding unless you have provided your Express Written Consent). If you do not unequivocally agree to be bound by the provisions of this Agreement (except for Sections 3 and 4, to which you are not required to agree to use or for access to the Website or the Service), you may not use or otherwise access the Website or the Service or post or download content or any other information to or from the Website or the Service. Alternatively, access and/or use may be limited as determined by Company in its sole discretion. Your sole remedy for dissatisfaction with the Website or the Service or any content is to stop using the Website.
Company hereby grants you a limited, non-exclusive, non-assignable, non transferable license to access and use the Website solely for your own personal, non-commercial purposes, and for purposes related to Tutors or Students, subject to your agreement to, compliance with and satisfaction of this Agreement other than Sections 3 and 4, which are not binding and require no compliance with or satisfaction thereof unless you have provided your Express Written Consent to this Agreement. All rights not otherwise expressly granted by this Agreement are reserved by Company. If you do not comply with the Agreement at any time, Company reserves the right to revoke the aforementioned license(s), limit your access to the Website, or restrict your ability to post or download Content, which may include the ordering of products and Service. All materials contained in this Website or made available through the Service, are protected by United States and international trademark and copyright laws, are owned or controlled by Company (or its partners), and must only be used for certain approved purposes as established by Company. You may only view or download material from this Website for your own use or as otherwise expressly authorized by Company. You are solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical, and other physical requirements necessary for your access to and use of the Website or any part thereof.
The reproduction, duplication, distribution (including by way of email, facsimile or other electronic means), publication, modification, copying or transmission of material available on or through this Website or the Service is strictly prohibited without the prior written consent of Company or unless expressly permitted by this Website or the Service. This includes, without limitation, any application, text, graphics, logos, photographs, audio or video material or stills from audiovisual material available on this Website by Company, including Subscription Content (“Content”), if any. The copying, posting, linking or other use of Content from this Website or the Service on any other website or networked computer environment is similarly prohibited. Requests for permission to reproduce or distribute materials found on this Website or the Service can be made by contacting Company by mail, in writing at the address listed below. You are also strictly prohibited from creating works or materials that derive from or are based on the Content or other materials contained in this Website or the Service. This prohibition applies regardless of whether the derivative materials are sold, bartered or given away. You shall not copy, reverse engineer, disassemble, decompile, translate, modify, reproduce, republish, transmit, sell, offer for sale, disseminate or re-distribute the Content, trademarks, Service marks, logos, or icons displayed on the Website or Service, which are the property of Company, or its affiliates or licensors, if any, unless otherwise specifically noted in this Agreement. Trademarks, service marks, logos, and icons owned by third parties are the property of those respective third parties. Company and affiliates do not warrant or represent that your use of the Content will not infringe the rights of third parties.
If you do not comply with the Agreement at any time, Company reserves the right to terminate, limit, or otherwise alter your access to the Website or the Service. We may discontinue or alter any aspect of the Website or the Service, including, but not limited to, (i) restricting the time the Website or the Service is available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating your right to use the Website or the Service, at Company’s sole discretion and without prior notice or liability.
2. Modification to the Agreement
This Agreement is intended to provide you with the safest and most secure experience possible. Since offerings and technologies change, Company reserves the right to change, modify, add or remove portions of this Agreement at any time without prior notice. Continued use of the Platform or Service after any such changes shall constitute your consent to such changes unless such changes are to Sections 3 or 4 of this Agreement. If Company changes or modifies the Consent to Communications (Section 3) or Dispute Resolution and Arbitration (Section 4) provisions of this Agreement, such modifications shall be binding on you only upon your Express Written Consent of the modified Agreement. Company reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting.
If you have any questions, or would like further clarification, please email Company at email@example.com. Any changes in Company’s policies will be communicated on this page.
This Website is operated by Test Prep Elite LLC. All inquiries may be directed to:
Test Prep Elite LLC
9504 Appeals Place
Gaithersburg, MD 20886
3. Consent to Communications
You acknowledge that the Consent to Communications provision of this Agreement is not binding on you unless you have provided your Express Written Consent (as defined above) to this Agreement. If you have provided your Express Written Consent (as defined above), the following provisions of the Consent to Communications provision are binding on you.
a) Agreement to Receive Communications from Company.
By using the Platform and providing your phone number and/or email on the Platform, you agree and acknowledge that Company may communicate with you via email, text messaging, text receipts, Short Messaging Service (“SMS”), facsimile, and all phone calls at the number you provide. Such communications may be for any purpose, including marketing purposes, purposes related to Tutors and the Service provided to Tutors, and purposes related to Students and the Service provided to Students, using all methods now known and discovered in the future, including, but not limited to, auto-dialers, artificial messages, pre-recorded messages, general telemarketing practices, and all other electronic communication. You agree that these calls may be regarding products and/or Service that Company may market to you and that you are not obligated to receive such calls in order to purchase said products and/or Service. Company will not charge you a fee for sending SMS text messages, but your communication Service provider may. You agree to pay any fee(s) or charges(s) that you may incur for incoming and outgoing text messages from or to Company or Company's assigns, successors, Servicers or agents, without reimbursement from Company or them.
You understand that, should the phone number provided above cease to be a valid means to contact you or if you cease to retain ownership of the phone number, you have an obligation to provide Company notification of same through email at firstname.lastname@example.org. You understand and agree that, if Company sends you a communication but you do not receive it because your primary email address or phone number on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive communications, Company will be deemed to have provided the communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add Company to your email address book so that you will be able to receive the communications Company sends to you.
By providing your Express Written Consent to this consent to communications, you are confirming that you have agreed to the terms and conditions herein and you have had an opportunity to download or print a copy of the Agreement for your file.
b) Electronic Signature.
You acknowledge that by clicking on the "Book Consultation", "Call Now", or similar button on Company’s website, you are indicating your intent to sign the relevant document or record and that this shall constitute your signature.
c) How to Withdraw Your Consent to Communications.
You may acknowledge that you may withdraw such consent to communications by notifying Company of such withdrawal (per the opt-out instructions below) and repeating notification of such revocation if Company subsequently attempts further communication, but that, until such consent is revoked and, if applicable, repeated, you may receive calls from Company at your phone number provided above.
You may withdraw your consent to receive communications by writing to Company at: Test Prep Elite LLC, Attn: Legal Department, 9504 Appeals Place, Gaithersburg, MD 20886, or by contacting Company via support [at] testprepelite.com.
You acknowledge that you are not required to consent to receive promotional texts or calls as a condition of using the Platform or the Service. You acknowledge that opting out of receiving calls and/or texts may impact your use of the Platform or the Service. At Company’s option, Company may treat your provision of an invalid phone number, or the subsequent malfunction of a previously valid phone number as a withdrawal of your consent to receive SMS text messages. Company will not impose any fee to process the withdrawal of your consent to receive SMS text messages. Any withdrawal of your consent to receive SMS text messages will be effective only after Company has a reasonable period of time to process your withdrawal.
d) Requesting Paper Copies of Electronic Communications.
Upon your request, Company will send you a paper copy of the contract(s) or other material provided to you electronically pursuant to this consent. If you would like a paper copy of any of this material please write to Test Prep Elite LLC, Attn: Legal Department at 9504 Appeals Place, Gaithersburg, MD 20886 within 30 days of the communication for which you are seeking a paper copy. There will be no charge for a paper copy of this material.
You agree to indemnify, defend, and hold Company harmless from and against any and all claims, losses, liability, costs, and expenses (including reasonable attorneys’ fees) arising from your provision of a mobile phone number that is not your own or your violation of applicable federal, state or local law, regulation or ordinance. Your obligations under Section 3, which are only binding if you have provided your Express Written Consent, shall survive termination of the Agreement. Company will not be liable for losses or damages arising from any delay in delivery or disclosure of information to third parties by your communication service provider. Company may modify or terminate its text messaging service from time to time, for any reason, and without notice, including the right to terminate text messaging with or without notice, without liability to you, any other User or a third party.
4. Dispute Resolution and Arbitration
You expressly acknowledge that the Dispute Resolution and Arbitration provision of this Agreement is not binding on you unless you have provided your Express Written Consent (as defined above) to this Agreement. If you have provided your Express Written Consent (as defined above), the following provisions of this Dispute Resolution and Arbitration provision are binding on you.
a) Agreement to Binding Arbitration Between You and Company.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This arbitration provision (“Arbitration Provision”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Company ends. ANY ARBITRATION UNDER THIS ARBITRATION PROVISION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Provision applies to all claims between you and Company, including Company’s affiliates, subsidiaries, parents, successors and assigns, and each of Company’s respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND COMPANY. These claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof); the Platform; the Service; any other goods or service made available through the Platform; your relationship with Company; the threatened or actual suspension, deactivation or termination of this Agreement; payments made by you or any payments made or allegedly owed to you; any promotions or offers made by Company; any city, county, state or federal wage-hour law; trade secrets; unfair competition; breaks and rest periods; expense reimbursement; wrongful termination; discrimination; harassment; retaliation; fraud; defamation; emotional distress; breach of any express or implied contract or covenant; claims arising under federal or state consumer protection laws; claims arising under antitrust laws; claims arising under the Telephone Consumer Protection Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance for employees eligible under the specific benefit plan), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Provision) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION PROVISION. This Arbitration Provision is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Provision are expressly excluded from the requirement to arbitrate.
b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SECTION (b) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST COMPANY, WHICH ARE ADDRESSED SEPARATELY IN SECTION (c).
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any claim or issue any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the Arbitration Provision, the American Arbitration Association (“AAA”) Consumer Arbitration Rules (“AAA Rules”), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any claims, the class, collective, and/or representative action on such claims must be litigated in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other claims to the fullest extent possible.
c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the fullest extent permitted by law: (1) you and Company agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and Company agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Provision or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the requirement that any remaining claims be arbitrated on an individual basis pursuant to the Arbitration Provision; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those claims, the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Provision shall be administered by the AAA pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Arbitration Provision. Copies of the Consumer Arbitration Rules can be obtained at the AAA’s website (www.adr.org) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the opportunity for reasonable discovery of non-privileged information that is relevant to the claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Provision after participating in the optional Negotiation process described in section (j) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Company agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Company, Company will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Company initiates arbitration under this Arbitration Provision, Company will pay all AAA filing and arbitration fees.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable arbitration fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Company may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Company agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Company’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in section (i) below, then Company will pay you the amount of the award or U.S. $1,000, whichever is greater.
f) Location and Manner of Arbitration.
Unless you and Company agree otherwise, any arbitration hearings between you and Company will take place in the county of your billing address. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your claim is for $10,000 or less, Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
g) Exceptions to Arbitration.
This Arbitration Provision shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in section (c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Provision prevents you from making a report to or filing a claim or charge with any local, state, or federal agency and nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any local, state, or federal agency, to the extent you are entitled to pursue such a claim, in order to fulfill the party’s obligation to exhaust administrative remedies before making a claim in arbitration, however you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Arbitration Provision. Nothing in this Agreement or Arbitration Provision prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in section (c) above, in the event that any portion of this Arbitration Provision is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Provision shall be given full force and effect.
i) Opting Out of Arbitration.
You may opt out of the requirement to arbitrate claims defined in section (e)(3) pursuant to the terms of this section. If you do not wish to be subject to this Arbitration Provision with respect to claims, you may opt out of arbitration with respect to such claims by notifying Company in writing of your desire to opt out of arbitration for such claims, which writing must be dated, signed and delivered by: (1) electronic mail to email@example.com or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery Service (e.g, UPS, Federal Express, etc.) that is addressed to:
Test Prep Elite LLC.
Attn: Legal Department
9504 Appeals Place
Gaithersburg, MD 20886
n order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Provision with respect to claims, (B) the writing must include the name, phone number, and email address associated with you, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is executed by you. Should you not opt out within the 30-day period, you and Company shall be bound by the terms of this Arbitration Provision in full.
You should assume that there may be now, and may be in the future, lawsuits against Company alleging class, collective, and/or representative claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of claims with Company under this Arbitration Provision, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Company in an individual arbitration provision. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Provision and you will not be subject to retaliation, if you exercise your right to assert claims or timely opt-out of arbitration, for any claims under this Arbitration Provision.
j) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Company may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Company. A party who intends to seek negotiation under this section must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
5. Your Privacy
Company may disclose information to trusted affiliates, independent contractors, and partners who may use the information for certain business purposes deemed to be aligned with Company’s goals and business objectives. In addition, Company may transfer information collected from Users in connection with a sale or restructuring of Company.
6. Permitted User Content Posted on the Website
We welcome your comments regarding the Website and the Service. However, to the maximum extent permitted by applicable law, you acknowledge and agree that all right, title, and interest in any content or information you submit, irrespective of the manner of such submission, to Company (collectively, “User Content”) will be and remain the exclusive property of Company at no additional fee, charge, cost, or expense to Company. Your submission of any such User Content shall constitute an assignment to Company of all worldwide rights, titles and interests in all copyrights and other intellectual property rights in the User Content. Company will be entitled to use, reproduce, disclose, publish and distribute any material you submit for any purpose whatsoever, without restriction or prior notice and without compensating you in any way. For this reason, do not send Company any comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, articles, forms, product ideas, computer code or other original materials. Company hereby retains the unrestricted right to use and to grant third parties the right to use the User Content in any manner and for any purpose in its sole discretion.
You are solely responsible for such User Content you provide to Company or post on the Website or the Service. Company accepts no responsibility whatsoever in connection with, or arising from, such User Content. You agree that Company accepts no liability whatsoever if it decides, in its discretion, to prevent your User Content from being submitted or if it edits, restricts, or removes any User Content for any reason. You also agree to permit any other user of this Website to access, view, store or reproduce the material for that other user’s personal use and not to restrict or inhibit the use of the Website by any other person.
Company does not endorse and has no control over, User Content. User Content is not necessarily reviewed by Company prior to posting and does not necessarily reflect the opinions or policies of Company. Company makes no warranties, express or implied, as to such User Content or its accuracy and reliability, and assumes no responsibility for actively monitoring the Website for inappropriate User Content. Company reserves the right to prevent you from submitting User Content to the Website, and to edit, restrict, or remove such User Content for any reason at any time. Company may choose, in its sole discretion, to monitor the Website; however, Company assumes no responsibility for User Content, no obligation to modify or remove any inappropriate User Content and no responsibility for the conduct of any user submitting any User Content.
You should exercise discretion before relying on information contained on the Website, including User Content. You agree to evaluate, and assume all risks associated with the use of any information contained on the Website or Service, including, without limitation, any risk relating to any reliance on the accuracy, completeness or usefulness thereof.
The Website is not a backup Service for storing User Content, and Company has and shall have no liability to you or any third parties regarding any loss of User Content. You are solely responsible for creating backups of any User Content you post using the Website or the Service.
You hereby represent, warrant, and covenant that any materials submitted to the Website by you are your own independent creation, solely and exclusively created by you without assistance from or by any third party, and do not infringe, in whole or in part, on any patent, copyright, trademark, or other intellectual property or proprietary rights of any third party.
7. User Representations
In the event that you post any User Content or provide any feedback via the Website, you hereby make the following additional representations and warranties to Company: (1) you are owner of such User Content or feedback or otherwise have the right to grant Company the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to post the User Content or feedback and to grant the foregoing licenses or assignments; (3) the User Content or feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such User Content or feedback does not contain any personally identifiable information about third parties, in violation of such parties’ rights; (4) the use of any User Content or feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the User Content or feedback is true and accurate.
As a service to users, Company may provide information about other resources that may be of interest. However, Company is not responsible or liable for any content, advertising, products, or other materials on, or available from, such sites or resources, and the presentation of third-party links or content by Company is not intended to be an endorsement, sponsorship, or recommendation by Company. Please be aware that when you exit the Website, you are subject to the policies of the new website. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or Service available on or through any third-party website or resource.
9. Prohibited Activities
You shall not (nor cause any third party to) use the Website or the Service to perform any illegal or immoral activities (including without limitation defaming, abusing, harassing, stalking, threatening, or otherwise violating the legal rights - such as rights of privacy of others) or any of the following types of activities, without limitation:
disseminating any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, pornographic, obscene, or otherwise objectionable material;
transmitting information that violates any applicable federal, state, or local laws, rules or regulations, including any governmental agency guidelines, policies or procedures, or that infringes any patent, trademark, trade secret, copyright or other intellectual property or proprietary rights of any party;
that would constitute fraud;
transmitting any material that contains software viruses, trojan horses, worms, time bombs, cancelbots, or any other computer code, files, or programs which may interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
impersonating anyone or any entity, falsely stating or otherwise misrepresenting your affiliation with a person or entity;
interfering with or disrupting the Website or the Service;
disrupting the activities or enjoyment of the Website or the Service for other users;
collecting or storing personal data about other users;
use of any manual or automated software, devices, or other processes to “crawl” or “spider” any web pages contained in the Website (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, Service or other data from the Website);
use of the Website to gain competitive intelligence about Company, the Website, or any product or Service offered via the Website or to otherwise compete with Company or its affiliates;
framing or otherwise simulating the appearance or functions of the Website or any portion thereof;
harvesting or otherwise collecting any information about other users, including, without limitation, email addresses or other contact information of other users.
You agree to abide by all applicable federal, state, or local laws, rules, or regulations, including any governmental agency guidelines, policies, or procedures, and are solely responsible for all acts or omissions taken by you including without limitation any of the User Content created or submitted by you.
Company (or its partners) may charge a fee to post or access Content or for other features, products, Service, or licenses. You are responsible to Company (or its partners) for any fees applicable to Content that you post or other features, products, Service or licenses you purchase or that are purchased through Company (or its partners) for using or accessing the Website or the Service. You authorize Company (or its partners), or its designated payment processor, to charge your specified credit card, debit card, or other payment method for such fees as provided through the registration process. Multi-month, monthly, membership, or other recurring programs will continue to incur recurring charges unless you explicitly make a cancellation request in writing to Company.
Unless otherwise specified, all fees are in United States dollars, and all charges will be made in United States dollars. Any applicable sales or other taxes are additional to the stated fee. Currency exchange settlements and foreign transaction fees are based on your agreement with your credit card or other payment method provider.
Except as required by law, all fees are nonrefundable, including, without limitation, in situations where paid posts are removed by Company (or its partners), or by community flagging. Payments and purchases may not be canceled by the user, except as required by law. However, Company (or its partners) reserves the right to refuse or terminate any purchase or attempted purchase at any time in its sole discretion. You understand and agree that if you authorize a payment transaction with your credit card, debit card, or other payment method, but your charge is rejected for any reason, there may be a hold on your use of that transaction amount for several days.
11. Release / Indemnification
You agree to release Company, its members, managers, officers, employees, and agents from any and all liability and obligations whatsoever in connection with or arising from your use of the Website and the Service. If at any time you are not happy with the Website or the Service or object to any material within the Website or the Service, your sole remedy is to cease using them.
12. Exclusion of Warranties / Disclaimer
To the maximum extent allowed by law, the Website or the Service, and any company content are provided “as is” and “as available,” and at your sole risk. Although Company uses reasonable efforts to ensure that the information contained on the Website and through the Service is as accurate as possible, Company gives no warranty of any kind regarding the Website or the Service, or company content posted or otherwise made available therein. Further, Company does not warrant the accuracy, completeness, currency, or reliability of any company content that the results obtained from the use of the Website or the Service or company content will be accurate or reliable, or that the quality of the Website or the Service or company content will meet your expectations. Company expressly disclaims all warranties, representations, conditions, undertakings, or other obligations including any implied warranties of merchantability, fitness for a particular purpose, non-infringement and any warranty that the Website, the Service or company content will be error-free or that such errors will be corrected.
Any company content or other material downloaded or otherwise obtained through the use of the Website or the Service is done at your sole risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such company content or material.
13. Limitation of Liability
You expressly understand and agree that Company shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Company has been advised of the possibility of such damages), resulting from: (i) THE USE OR THE INABILITY TO USE THE WEBSITE; (ii) the cost of procurement of substitute products and Service resulting from the inability to access or utilize any products, data, information or Service purchased or obtained or messages received or transactions entered into through or from the Website or the Service; (iii) unauthorized access to or alteration of your transmissions or data; or (iv) any other matter relating to the Website or the Service. In no event shall Company’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence), or otherwise exceed the amount paid by you, if any, for accessing the Website or the Service.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
This Agreement may not be assigned by you to any other party without Company’s prior written consent, but is nevertheless binding on your assignees, heirs, and personal representatives.
15. Term and Termination
This Section does not apply to the Consent to Communications (Section 3) and the Dispute Resolution and Arbitration (Section 4) provisions of this Agreement, which are only binding on you if you have provided your Express Written Consent (as defined above) to this Agreement.
In addition to any other method of termination, suspension, or survival provided for in this Agreement, Company reserves the right to terminate this Agreement at any time and for any reason upon ten (10) days’ notice to you. Further, you agree that Company shall not be liable to you or any third-party for any termination or suspension of your access to the Website or any part thereof, removal of Content or sale of any products. You may terminate this Agreement at any time by immediately discontinuing all access to the Website and by providing notice to Company of such discontinuance. Termination or cancellation of this Agreement shall not affect any right or relief to which Company may be entitled at law or in equity. Upon termination of this Agreement, you shall terminate all use of the Website and any Content provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with this Agreement.
16. Governing Law and Other Miscellaneous Terms
17. Copyright and Copyright Notices
Company respects the intellectual property of others, and asks its users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Company’s copyright agent the following information:
an electronic or physical signature of the owner or person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Website sufficient to
allow Company to locate the allegedly infringing material;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please contact Company’s copyright agent for notice of claims of copyright infringement at: firstname.lastname@example.org. Copyright owners and agents acknowledge that failure to comply with all of the requirements of the foregoing may result in an invalidity of the DMCA notice.
If you believe that the User Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the User Content, you may send a counter-notice containing the following information to the copyright agent:
your physical or electronic signature;
identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled;
a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or a misidentification of the User Content;
your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction and venue of the federal court in Maryland and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the copyright agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such User Content, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Company’s sole discretion.