Effective Date: November 9, 2016
Welcome to TestMax™, a service operated by TestMax, Inc. (“TestMax,” “we,” “our” or “us”), which includes the following services: LSATMax™, BarMax™, Exam Proctor™ and Law School 100™ (each, a “Service” and, collectively, the “Services”). Please read carefully the following terms and conditions (this “Agreement”) governing your use of any of the Services, whether accessed online at www.testmaxprep.com (the “Site”) or on mobile devices using an app (each, an “App” and, collectively, the “Apps”), and the content, information or materials we provide as part of the Services (the “TestMax Content”). As used in this Agreement, the term “Affiliated Parties” of TestMax means its officers, directors, members, agents, representatives, contractors, employees, licensors and assignees.
BY CREATING AN ACCOUNT OR OTHERWISE ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE OR PURCHASE ANY OF THE SERVICES. We may modify this Agreement from time to time. When changes are made we will make the revised version available on the Site, indicating at the top of this page the date that revisions were last made. YOUR USE OF ANY OF THE SERVICES AFTER SUCH POSTING WILL CONSTITUTE ACCEPTANCE BY YOU OF SUCH CHANGES.
- Your Account. Although you may freely visit the Site, in order to use a Service you must create a TestMax account, which requires you to provide us with information about yourself, including your full name, email address, telephone number and a password. By doing so, you agree to receive communications from us to the email address you provided. You may opt out of receiving some email correspondence from us, but some account-related communication must and will continue to be sent to your email address.
- Intellectual Property and Ownership. The Services, including without limitation, the Site, the Apps, the TestMax Content, their design and layout, and the underlying software, data and algorithms, are the exclusive property of TesMax or its licensors and are protected by U.S. and international intellectual property rights, including without limitation, copyright, trademark rights and trade secret rights. The trademarks TestMax™, LSATMax™, BarMax™, Exam Proctor™ and Law School 100™ and the their corresponding logos are owned by TestMax. Any other trademarks, service marks, logos and/or trade names appearing on the Services are the property of their respective owners.
- License to Use. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-sublicenseable, non-transferable and revocable license to use the Site and relevant App in order to access any of the Services for personal, non-commercial use only. This license is valid so long as your account has not been terminated by us or by you, or you are not barred from the Service by applicable law. If this Agreement is not enforceable where you are located, you may not use the Service.
- User Content. The Service may enable you to post or submit content and materials for publication (“User Content”). By posting User Content, you represent to us that you own or have sufficient rights to the User Content, and you grant to us the right to use, reproduce, modify, adapt and publish the User Content for the purpose of offering the Service.
- Restrictions. You agree to the following restrictions in your use of any of the Services:
- You may not duplicate, decompile, reverse engineer, publish or redistribute the Services, including the Site or the Apps, or their underlying technology;
- You may not duplicate, publish, or redistribute the TestMax Content;
- You may not use any Service for any purpose other than your personal, non-commercial use;
- You may not use any of the Services for the purpose of creating or maintaining a competitive product or service;
- You may not interfere with the rights of other users to use any of the Services;
- You may not use any of the Services for any unlawful purpose;
- You may not impersonate another person or use another user’s account information without permission;
- You may not violate our security features, including without limitation, logging into a server that you are not authorized to access, probing the vulnerability of our systems and networks, or otherwise transmitting to or through any of the Services material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and
- You may not post, transmit or otherwise make available through any of the Services any information or other material that: (i) infringes or otherwise violates the rights of any third parties; or (ii) is harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, or contain pornography or racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense.
If you violate any of the foregoing restrictions, we may immediately terminate your TestMax account, and you may also be subject to civil or criminal penalties.
- Third Party Sites. The Services may include links to other websites or applications, or functionality to connect with other websites (each, a “Third Party Site”) or advertisements. We do not control or endorse any Third Party Site or advertisements, and we are not responsible for any content, product, advertising and other materials presented in or provided by such Third Party Site or advertisement. Your use and access of a Third Party Site is at your own risk, and is subject to the terms and conditions for such Third Party Site.
- By TestMax. We may terminate or suspend your right to use any of the Services at any time for any or no reason by providing you with written or email notice of such termination or suspension, and such termination or suspension shall be effective immediately upon delivery of such notice. If we terminate or suspend your right to use any of the Services without cause, we will refund to you a pro-rated portion of the fees you have paid for that Service.
- By You. You may cancel your account and terminate this Agreement at any time by contacting Customer Service; however, you will not receive a refund.
- Effect of Termination. All sections of this Agreement that by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
- Disclaimer of Warranties and Limitations of Liability. PLEASE READ THIS SECTION CAREFULLY. THIS SECTION LIMITS THE LIABILITY OF TESTMAX AND ITS AFFILIATED PARTIES. EACH OF THE SUBSECTIONS BELOW APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- "As-Is" Basis. TESTMAX PROVIDES THE SERVICES, INCLUDING THE SITE, THE APPS AND TESTMAX CONTENT, ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOUR USE OF ANY OF THE SERVICES, THE SITE, THE APPS AND TESTMAX CONTENT, IS AT YOUR OWN DISCRETION AND RISK.
- No Warranties; Release. TESTMAX MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE SERVICES, THE SITE OR THE APPS, OR ANY TESTMAX CONTENT, AND WE HEREBY EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO ANY OF THE SERVICES, THE SITE OR THE APPS, OR ANY TESTMAX CONTENT. WE DO NOT WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY TESTMAX CONTENT. WE DO NOT WARRANT THAT YOUR USE OF ANY OF THE SERVICES, THE SITE OR THE APPS, OR THE TESTMAX CONTENT WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, AVAILABLE, ACCURATE, OR THAT ANY DEFECTS THEREIN WILL BE CORRECTED. YOU AGREE TO RELEASE TESTMAX AND ITS AFFILIATED PARTIES FROM ANY CLAIMS, DEMANDS, DAMAGES, LIABILITY, COSTS OR EXPENSES, OF EVERY KIND AND NATURE, KNOWN OR UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY OF THE SERVICES, THE SITE OR THE APPS, OR THE TESTMAX CONTENT.
- Limitation of Liability. IN NO EVENT WILL TESTMAX OR ITS AFFILIATED PARTIES BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR USE OF ANY OF THE SERVICES, THE SITE OR THE APPS, OR THE TESTMAX CONTENT.
- Maximum Liability. WITHOUT LIMITING ANY OTHER PROVISION IN THIS AGREEMENT, TESTMAX’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES YOU SUFFER IN CONNECTION WITH THE ANY OF THE SERVICES, THE SITE OR THE APPS, OR THE TESTMAX CONTENT IS LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO TESTMAX IN CONNECTION WITH THE SERVICE IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (II) $100.
- Sole And Exclusive Remedy. YOUR ONLY RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE ANY OF THE SERVICES, THE SITE OR THE APPS, OR THE TESTMAX CONTENT, OR ANY OTHER GRIEVANCE RELATED THERETO, SHALL BE YOUR TERMINATION OF YOUR ACCOUNT AND DISCONTINUATION OF ACCESS TO, OR USE OF, THE SERVICE, THE SITE AND THE RELEVANT APP, AND THE TESTMAX CONTENT.
- Indemnification. You agree to indemnify, defend and hold harmless TestMax and its Affiliated Parties from and against any and all claims, losses, expenses, demands or liability, including attorneys' fees and costs incurred by TestMax and its Affiliated Parties in connection with any claim by a third party (including an intellectual property claim) arising out of (i) your use or misuse of any of the Services, the Site, the Apps or TestMax Content, (ii) any User Content you submit, post or transmit through any of the Services, (iii) your violation of this Agreement or your violation of any rights of a third party, or (iv) your violation of any applicable law, rules or regulations. You agree that you will cooperate as reasonably requested by TestMax in the defense of such claims. TestMax and its Affiliated Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
- Digital Millennium Copyright Act: TestMax respects the intellectual property rights of others and expects its users to do the same. We may remove content that, in our view, appears to infringe the intellectual property rights of others. In addition, TestMax, in its sole and absolute discretion, may terminate the right to use any of the Services of any user who infringes the intellectual property rights of others. If you believe any material on any of the Services infringes your copyright, you may request removal of that material from the Service by contacting TestMax’s copyright agent (identified below) and providing the following information: (i) identification of the copyrighted work that you believe to be infringed (please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work); (ii) identification of the material that you believe to be infringing and its location (please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material); (iii) your name, address, telephone number and (if available) e-mail address; (iv) a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; (v) a statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf; and (vi) a signature or the electronic equivalent from the copyright holder or authorized representative. Submit information to:
TestMax, Inc. 555 Rose Avenue, Unit G
Venice, California 90291 Email: email@example.com
- Arbitration and Class Action Waiver. Any legal controversy or legal claim arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Los Angeles, California, and judgment on the arbitration award may be entered into by any court having jurisdiction thereof. TestMax may seek any interim or preliminary relief from a court of competent jurisdiction in Los Angeles, California, necessary to protect the rights or property of TestMax pending the completion of arbitration. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Should either party file an action contrary to this provision, the other party may recover costs and attorneys’ fees reasonably incurred in challenging such action. YOU AND TESTMAX AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE WITH TESTMAX THAT NEITHER YOU NOR TESTMAX WILL JOIN ANY ARBITRAL CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY IN A LAWSUIT, ARBITRATION OR OTHER PROCEEDING; THAT NO ARBITRAL CLAIM WILL BE RESOLVED ON A CLASS-WIDE BASIS; THAT NEITHER YOU NOR TESTMAX WILL ASSERT AN ARBITRAL CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE; AND BOTH PARTIES EXPRESSLY WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.
- Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the United States and the State of California, without reference to their rules regarding conflicts of law. If the Arbitration provision of this Agreement in Section 12(a) shall be found to be unlawful, void or for any reason unenforceable, then any lawsuit or claim arising out of this Agreement shall be brought in the federal or state court located in Los Angeles, California.
- No Joint Venture or Partnership. Nothing in this Agreement is intended to or should be construed as creating an agency, partnership, joint venture, employer-employee or contractor relationship between you and TestMax.
- Severability. If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention, and all remaining provisions of this Agreement shall remain in full force and effect.
- Waiver. No waiver of any breach of any provision of these Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
- Complete Agreement. This Agreement contain the entire agreement between you and TestMax regarding the use of the Service, and supersede any prior agreement between you and TestMax on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not contained in this Agreement.
- Contact Information. If you have any questions or need further information as to the Service, or need to notify TestMax as to any matters relating to the Service, please contact us at:
Attention: Terms of Service 555 Rose Avenue, Unit G
Venice, California 90291 Email: firstname.lastname@example.org