TARGET TEST PREP USER AGREEMENT
Terms and Conditions
[Last Updated: June 15, 2015]
This Agreement ("User Agreement") sets forth the terms and conditions upon which you may use our web site (http://targettestprep.com) (the "Target Site") and/or any of our test preparation or admissions consulting services and products, which together we call the " Target Services" (the Target Services are more specifically described in Section 1 of this User Agreement). We are 99th Score Tutoring, LLC, d/b/a "Target Test Prep" (" Target ," " We ," or " Us").
Your use of any of the Target Services constitutes your acceptance of our User Agreement and all of the terms and conditions applicable to the Target Services (as such may be changed, modified, altered or amended as provided in this User Agreement), including, without limitation, all of the terms and conditions incorporated by reference herein.
IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS CONTAINED IN THIS USER AGREEMENT, DO NOT USE ANY OF THE TARGET SERVICES. BY USING THE TARGET SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS USER AGREEMENT, AGREE TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT, AND AGREE THAT THIS USER AGREEMENT CREATES A BINDING CONTRACT BETWEEN YOU AND TARGET.
1. Target Services
The Target Services consist of the following test preparation and admissions consulting services: (a) educational test preparation services for students preparing for the GMAT, GRE and SAT (the " Exams"). Target provides Online Private Tutoring for the Exams (" Online Private Tutoring") through the Target Site (and through the use of certain third-party applications and services offered by Box (http://www.box.com/), Skype (http://www.skype.com/intl/en-us/home), and Cisco WebEx (http://www.webex.com/) (the " Thirty-Party Applications"). Target also provides In-Person Private Tutoring for the Exams (" In-Person Private Tutoring") and Classroom Tutoring for the Exams (" Classroom Tutoring").
(b) access to a proprietary, online and interactive learning system and instructional product for use in connection with the math section of the GMAT (the " Target Test Prep GMAT Quant" product), as more specifically described in Section 7 of this User Agreement.
(c) admissions consulting services for students applying for admission to college and graduate school programs (" Admissions Consulting Services"). Admissions Consulting Services are provided in Fixed Price Admissions Packages (" Fixed Price Admissions Packages") and/or on a per hour basis.
The services and products set forth in (a), (b) and (c), above, together with any and all services and products that Target may provide hereafter, constitute the "Target Services" pursuant to this User Agreement. Except as otherwise specifically set forth in herein, the terms and conditions in this User Agreement concerning the Target Services shall be applicable as to all such services, generally, including any free, complimentary, or trial lessons, classes, products, services and/or consulting services (whether online, in-person or on location). The Target Site sets forth additional terms and conditions concerning each of the Target Services with more specificity. Such additional terms and conditions, include, without limitation, specific program and package features, program and package schedules, specific product features, and the applicable fees, user fees, costs and charges for such programs, packages and products. Any and all such additional terms and conditions (and such other features and aspects of the Target Services as may be specified or set forth on the Target Site from time to time) shall be deemed to be a part of this User Agreement and are hereby incorporated into this User Agreement by reference; provided, however, that (i) in the event of a conflict between any of such additional terms and conditions and the provisions set forth herein, the provisions set forth herein shall govern, and (ii) without limiting the generality of the foregoing, under no circumstances shall any of such additional terms and conditions be deemed to modify, amend, restrict, or terminate any of the provisions set forth in Sections (2), (9), (10), (13), (15), (16), and (17) herein.
2. License for Personal Use of the Target Services
Target grants you a terminable, non-exclusive, non-transferable license to use such of the Target Services as may be applicable solely for your personal, noncommercial, and noncompetitive use in accordance with the terms and conditions specified in this User Agreement. All of the Target Services content, including, without limitation, all texts and other written materials, digital materials, lectures, recordings, visual and audio aids, content available from the Target Site and/or any other Target web sites (including, without limitation, Target Test Prep GMAT Quant), and all other content that you will receive or to which you will have access when using the Target Services (hereafter, collectively, the "Content") is for your personal, noncommercial, and noncompetitive use only. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AN APPLICANT OR PROSPECTIVE APPLICANT IN GOOD FAITH FOR ADMISSION TO ONE OR MORE COLLEGE OR GRADUATE SCHOOL PROGRAMS AND THAT YOU ARE USING THE TARGET SERVICES SOLELY FOR SUCH PURPOSE. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE NOT ENGAGED, EITHER DIRECTLY OR INDIRECTLY, IN THE BUSINESS OF PROVIDING TEST PREPARATION SERVICES AND/OR ADMISSIONS CONSULTING SERVICES, AND THAT YOU ARE NOT CURRENTLY EMPLOYED BY OR OTHERWISE HAVE ANY RELATIONSHIP WITH ANY PERSON OR ENTITY THAT MAY BE IN COMPETITION WITH TARGET OR IS OTHERWISE ENGAGED IN THE BUSINESS OF PROVIDING TEST PREPARATION SERVICES AND/OR ADMISSIONS CONSULTING SERVICES. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS USER AGREEMENT, YOU HEREBY AGREE THAT YOU ARE AND WILL BE USING THE TARGET SERVICES SOLELY FOR YOUR PERSONAL, NONCOMMERCIAL, AND NONCOMPETITIVE USE ONLY.
3. Minors; Parents and Guardians; Third-Party Payers
4. Payment of Fees and Charges
You hereby agree that upon registration for, or purchase of, any of the Target Services, you shall pay the tutoring, package, program or product fees, user fees or charges due (and/or any other fees and charges due) for such Target Services, as specified in this User Agreement (and as may be further specified on the Target Site). Except as otherwise provided in this User Agreement, all such fees, user fees and charges shall be non-refundable, in whole or in part.
You hereby agree that Target and its representatives are expressly authorized to charge your credit or charge card provided upon initial registration or purchase (or as subsequently provided) for the amounts due for any of the Target Services. You also hereby agree that Target and its representatives shall be authorized to charge your credit or charge card provided upon registration or purchase (or as subsequently provided) for any outstanding balance or installments due (if applicable) for your purchase of any such Target Services, as and when any and all such payments may become due as specified in this User Agreement (and as may be further specified on the Target Site). Moreover, no further permission or consent to such charges on your behalf shall be necessary or required for Target to charge your credit or charge card and to process your payments for such Target Services.
Failure to complete timely payment may result in the suspension or discontinuation of your Target Services and/or your forfeiture of any deposit. Any returned personal checks may be subject to a $40 handling fee. You hereby agree that should you fail to pay any amounts or charges owed to Target for your Target Services, Target shall have the right to pursue such unpaid amounts and charges. You shall remain liable to Target for all such amounts and charges, as well as for any and all costs of collection incurred by Target, including, without limitation, for collection agency fees, court costs, reasonable attorneys' fees, and for any and all related costs, expenses, fees and charges.
5. Classroom Tutoring
In addition to the terms and conditions set forth elsewhere in this User Agreement, Classroom Tutoring services are subject to the provisions set forth in this Section 5. Upon your registration for a Classroom Tutoring course, you shall have the option either to pay a $500 deposit or to pay the full fees and costs for the course. Should you opt to pay the $500 deposit when registering for your Classroom Tutoring course, the full balance of the fees and costs for the course must be paid at least fourteen (14) days prior to the scheduled start date of the course, without exception. If any coupon or discount is to be applied to the cost of your Classroom Tutoring course, it shall not reduce the $500 deposit due upon registration, but rather such coupon or discount shall be applied to the payment of the balance due for the course. Target specifically reserves the right to charge your credit or charge card for the remaining balance of the fees and costs due for your Classroom Tutoring course. Your payment for Classroom Tutoring courses is fully subject to the terms and conditions specified in Sections 3 and 4 of this User Agreement.
6. Admissions Consulting Services
In addition to the terms and conditions set forth elsewhere in this User Agreement, Admissions Consulting Services are subject to the provisions set forth below:
(a) You hereby agree that upon registration for any of the Admissions Consulting Services, you shall pay the Fixed Price Admissions Packages charges, or any applicable package, program or user fees, and/or any other fees and charges due for such Admissions Consulting Services, as specified in this User Agreement (and as may be further specified on the Target Site). Your payment for Admissions Consulting Services is fully subject to the terms and conditions specified in Sections 3 and 4 of this User Agreement.
(b) You acknowledge and agree that you may be responsible for developing or providing documentation, materials and assistance to Target in connection with the provision of the Admissions Consulting Services and you agree to do so in a prompt and timely manner.
(c) Target offers a three (3) business day turnaround time with respect to feedback on materials that you submit in connection with any Fixed Price Admissions Package. Telephone sessions with Target counselors must be scheduled in advance, subject to each counselor's availability. Target responds to email correspondence within one (1) business day, whenever possible.
(d) In connection with the Admissions Consulting Services, Target performs editing services consisting of idea formulation and draft editing of various admissions application materials. Target will only revise and edit documents and materials that you prepare. You acknowledge and agree that Target shall not, under any circumstances, entirely draft any statement, essay, application or similar item on your behalf.
(e) You hereby represent and warrant that all work product submitted to Target will be your own original work product and not the work product of any other person, and that such work product will not violate the intellectual property rights of any third-party.
(f) Target reserves the right to terminate the provision of your Admissions Consulting Services at any time and for any reason upon written notice to you. In the event that Target terminates the provision of your Admissions Consulting Services, except as otherwise provided in this User Agreement, your sole and exclusive remedy shall be a refund of a pro-rata portion of the fees and charges paid for your Admissions Consulting Services, as determined by Target in its sole and absolute discretion.
7. Target Test Prep GMAT Quant
In addition to the terms and conditions set forth elsewhere in this User Agreement, the Target Test Prep GMAT Quant product is subject to the provisions set forth below: (a) The Target Test Prep GMAT Quant product is a proprietary, online and interactive learning system and instructional product for use by students in preparation for the math section of the GMAT, and is considered to be among the Target Services for the purposes of this User Agreement.
(b) The Target Test Prep GMAT Quant product features math curriculum, practice questions, test examples, personalized problem sets, detailed performance analytics, and such other features as Target may deem necessary or desirable for the future enhancement and improvement of the product. Target specifically reserves the right to revise, amend, supplement, upgrade, improve and/or edit the Target Test Prep GMAT Quant product at any time, without notice, at its sole discretion.
(c) The Target Test Prep GMAT Quant product is subject to such other terms and conditions as may be set forth on the Target Site, including, without limitation, the user fees and/or charges established by Target for gaining access to the product, and the time period(s) established by Target for granting and limiting access to the product. Your payment for the Target Test Prep GMAT Quant product is fully subject to the terms and conditions specified in Sections 3 and 4 of this User Agreement.
(d) The Target Test Prep GMAT Quant product is exclusively available online and only may be accessed with an Internet connection. The Target Test Prep GMAT Quant product is not printable and cannot be saved or downloaded on or to a hard drive or to any other device.
(e) The Target Test Prep GMAT Quant product is accessed through a URL link, which requires your username and a password provided by Target. You may not share your access to the Target Test Prep GMAT Quant product with anyone. Your username and your password are for your personal use only. Target may change the password to the Target Test Prep GMAT Quant product at any time. If the password for access to the Target Test Prep GMAT Quant product is changed, you will be notified of the password change by e-mail.
(f) Target shall not be responsible for your failure to access the Target Test Prep GMAT Quant product for any reason, including, without limitation, your inability to access the Internet and/or through the fault of any Third-Party Application. Should the URL link or password for the Target Test Prep GMAT Quant product cease to work for you, please notify Target immediately.
8. Cancellations and Refunds
Online Private Tutoring and In-Person Private Tutoring:
Target requires twenty-four (24) hours advance notice of cancellation for all Online Private Tutoring lessons and In-Person Private Tutoring lessons. You shall be entitled to a refund, or to reschedule your tutoring lesson, provided that you have given Target notice of cancellation. All tutoring fees for missed lessons and for lessons canceled within twenty-four (24) hours of the scheduled session time shall be forfeited and nonrefundable. Target reserves the right to cancel or reschedule any Online Private Tutoring lesson and In-Person Private Tutoring lesson. Upon a cancellation of your tutoring lesson by Target, you will be entitled to a full refund of the fee paid for your tutoring lesson, or you may reschedule your tutoring lesson, subject to availability.
If you register for an Online Private Tutoring package or an In-Person Private Tutoring package and are unable to complete the session hours included in your package, except as otherwise provided in this User Agreement, Target will refund the fees paid for the unused portion (and only the unused portion) of your tutoring package. Therefore, the amount of your refund will depend upon the number of session hours that you have used and the number of unused session hours remaining in your package (subject to the provisions concerning the required twenty-four (24) hour notice of cancellation, set forth above).
The tutoring fees for a Classroom Tutoring course are fully refundable upon your request given to Target at least fourteen (14) days prior to the scheduled start date for the course. Except as provided below (with respect to course changes and cancellations), there shall be no refunds given within fourteen (14) days of the scheduled start date for any Classroom Tutoring course. Target specifically reserves the right to change the class time, class day, and/or or class location of any Classroom Tutoring course and will notify you by e-mail in advance of any such changes. If any such change occurs within fourteen (14) days of the scheduled start date for your Classroom Tutoring course, you will be entitled to the full refund of the fee paid for your Classroom Tutoring course, or you may reschedule your Classroom Tutoring course, subject to availability. Target also specifically reserves the right to cancel any Classroom Tutoring course prior to the scheduled start date for the course and shall notify you by e-mail in advance of any such cancellation. If Target cancels your Classroom Tutoring course, you will be entitled to a full refund of the fee paid for your Classroom Tutoring course. In addition, upon the cancellation of your Classroom Tutoring course, you will receive one (1) free session hour of Online Private Tutoring or In-Person Private Tutoring and a forty percent (40%) discount applicable to the fees for any subsequent private tutoring, limited to fifty (50) session hours.
Admissions Consulting Services:
Except as otherwise provided in Section 6(f) of this User Agreement, all package fees or charges, and/or any other fees or charges paid for Admissions Consulting Services are non-refundable, in whole or in part.
Target Test Prep GMAT Quant – Score Increase Guarantee:
If your official GMAT® quantitative score does not increase after completing Target Test Prep GMAT® Quant, you are entitled to a full refund of the purchase price of your access plan, subject to the following conditions. To be eligible for the score increase guarantee, you must: (a) have taken an official GMAT® prior to purchasing access to Target Test Prep GMAT® Quant, (b) email a copy of that official GMAT® score report to email@example.com within two weeks of purchasing access to Target Test Prep GMAT® Quant, (c) submit your new official GMAT® score report to firstname.lastname@example.org within two weeks of taking your new GMAT®, (d) have completed modules 1 to 38 presented in the Comprehensive Study Plan, and (e) in addition to taking the prescribed practice tests, completing the modules requires reading all lessons, attempting all example problems, watching all videos, and attempting all prescribed practice problems. Private tutoring costs are non-refundable. The Target Test Prep GMAT® Quant Score Increase Guarantee only applies to amounts paid for the Target Test Prep GMAT® Quant Course. No person is eligible for more than two refunds in their lifetime. Except as expressly set forth above, any and all user fees or charges paid for the Target Test Prep GMAT Quant product are non-refundable, in whole or in part.
Refunds to Third-Parties:
If the fees or charges for your Target Services were paid by a parent, guardian or other third-party payer, any refund due for your Target Services under this User Agreement shall be paid to such parent, guardian or other third-party payer, as applicable.
9. Exclusive Ownership of Target Intellectual Property
The Target Services Content (as defined in Section 2 of this User Agreement) and all computer software, artwork, and other intellectual property on the Target Site and/or used whatsoever by Target in providing the Target Services (the " Intellectual Property") constitutes the property of Target and is owned exclusively by Target (or its licensors). You agree and acknowledge that the Intellectual Property contains proprietary and confidential information owned by Target (or its licensors) that is protected by applicable intellectual property and other laws. The Target Services, as may be applicable, are licensed (not sold) to you, and Target (or its licensors) owns or otherwise holds all copyright, trade secret, trade mark, patent and other proprietary rights in the Intellectual Property. You may not: (a) copy, distribute, rent, loan, lease or sublicense all or any portion of the Intellectual Property; (b) modify, translate, distribute or prepare derivative works of the Intellectual Property or any accompanying documentation; (c) reverse engineer, decompile or disassemble the Intellectual Property or any accompanying documentation; or (d) remove any proprietary notices, labels, or marks on the Intellectual Property and/or any accompanying documentation. You may not transfer the Intellectual Property. Any license that may be applicable is automatically terminated if you transfer or attempt to transfer any of the Intellectual Property. TITLE AND COPYRIGHT OWNERSHIP TO THE INTELLECTUAL PROPERTY AND ANY ACCOMPANYING DOCUMENTATION REMAIN WITH TARGET (OR ITS LICENSORS). WILLFUL INFRINGEMENT OF COPYRIGHTED WORKS IS A VIOLATION OF FEDERAL LAW.
10. Third-Party Content
You agree and acknowledge that Target has no obligation to preview, screen or monitor any content that may be associated with or added to the Target Services (including, without limitation the Target Site, any blog or board hosted by Target, and/or any web sites accessed via the Target Site) by other users, whether publicly posted or privately transmitted through the Target Services. Target does not guarantee the accuracy, integrity, quality, or appropriateness of any such user posted content. Under no circumstances will Target be liable in any way for any user posted content, including, without limitation, for any errors or omissions in any user posted content, or for any loss or damage of any kind incurred as a result of the use of any user posted content accessed, posted or otherwise transmitted via the Target Services. By using the Target Services, you agree that it is solely your responsibility to evaluate the accuracy, completeness, usefulness or appropriateness of any user posted content that you access, post, or otherwise transmit through the Target Services, including user posted content that may be offensive, indecent or objectionable. Target has the right to suspend, restrict or terminate your use of the Target Services and to refuse you any future use of the Target Services (or any portion of the Target Services) if Target has reason to believe that you are responsible for user posted content that Target deems inappropriate. You further agree and acknowledge that all content presented to you through the Target Services, including that of any sponsors or advertisers, is or may be protected by copyrights, trademarks, services marks, patents or other proprietary rights and laws.
11. Registration Information
You agree, as a condition of your use of the Target Services, to provide Target with accurate and complete information when registering for the Target Services, and to promptly update such information as needed in order to maintain its accuracy and completeness. Target has the right to suspend, restrict or terminate your use of the Target Services and to refuse any future use by you of the Target Services (or any portion of the Target Services) should Target have reason to believe that you have failed to comply with these requirements. Your registration information, as such may be updated from to time, shall be used by Target for the purposes of sending to you all notices required or permitted under this User Agreement.
13. Student Code of Conduct
As a condition of your use of the Target Services, you agree to be bound by and comply with the terms and conditions of the Target Services Code of Conduct (hereafter, the " Code of Conduct") concerning the Target Services (including, for these purposes, any and all related products, services, third-party services, advertisements and/or Content accessed by you), as set forth below.
(a) You shall use the Target Services only in accordance with the terms and conditions of this User Agreement (including, without limitation, as applicable to the Intellectual Property) and you shall not use the Target Services for any purpose that is unlawful or prohibited by this User Agreement.
(b) You shall not use the Target Services in any manner that could damage, impair, disable or overburden the Target Services or in any way interfere with Target's rights or any other user's use and enjoyment of the Target Services, or otherwise infringe on any party's rights. Without limiting the generality of the foregoing, the following behavior constitutes express violations of the Code of Conduct: (i) disruptions to a classroom learning environment (e.g., use of profanity, harassment, cell phone use in classrooms, etc.); (ii) deliberate destruction, misuse, or theft of Target's property or the property of fellow classmates; (iii) violence or threats of violence toward persons or property of students or Target's staff; (iv) improper use of e-mail or Internet access; (v) online (including blog) posting of any of the Content, or any excerpt thereof; (vi) unauthorized attempts to gain access to any account, computers or networks related to the Target Services or any user thereof; (vii) use of the Target Services to harvest or otherwise collect information concerning other parties, including e-mail addresses; and (viii) the use of viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of the Target Services or the computers, networks and/or property of Target and/or any party.
(c) IN THE EVENT THAT YOUR CONDUCT BREACHES ANY OF THE TERMS OR CONDITIONS OF THIS CODE OF CONDUCT AND/OR THIS USER AGREEMENT, YOU HEREBY AGREE AND ACKNOWLEDGE THAT TARGET MAY TERMINATE YOUR ACCESS TO AND USE OF ANY AND ALL OF THE TARGET SERVICES, AND SEEK BOTH CIVIL AND CRIMINAL PENALTIES AS MAY APPLY AGAINST YOU IN YOUR INDIVIDUAL CAPACITY. IN ADDITION, NOTWITHSTANDING ANY PROVISION TO THE CONTRARY SET FORTH IN THIS USER AGREEMENT, YOU HEREBY AGREE AND ACKNOWLEDGE THAT UPON ANY SUCH BREACH, AT TARGET'S OPTION, YOU SHALL BE SUBJECT TO FORFEITURE OF ANY PREPAID TUITION FEES, DEPOSITS, PROGRAM AND PACKAGE FEES, OR REFUNDS OTHERWISE DUE TO YOU UNDER THIS USER AGREEMENT.
14. Account Security
When you are registered for any of the Target Services, you will receive an account name or similar account identifier and a password. You are responsible for protecting the confidentiality of your account identifier and password, and you are fully responsible for all activities that occur under the use of your password or account identifier. You agree: (a) to notify Target immediately of any loss, compromise or unauthorized use of your account identifier or password, and/or of any other breach of security; and (b) to exit from your account or logout when you conclude each session. Target shall not be liable for any loss or damage of any kind resulting from your failure to secure your account identifier or password.
15. Liability Disclaimer
YOU AGREE THAT:
(a) If YOU USE THE TARGET SERVICES, YOU DO SO AT YOUR OWN AND SOLE RISK. THE TARGET SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TARGET EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) TARGET DOES NOT REPRESENT OR WARRANT THAT (i) THE TARGET SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO YOUR FUTURE SCORE OR PERFORMANCE ON ANY EXAM, (ii) THE TARGET SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TARGET SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE TARGET SERVICES WILL MEET YOUR EXPECTATIONS, (v) ANY INFORMATION YOU PROVIDE OR TARGET COLLECTS WILL NOT BE DISCLOSED, OR THAT (vi) ANY ERRORS IN ANY DATA, MATERIAL OR SOFTWARE WILL BE CORRECTED.
(c) IN CONNECTION WITH THE ADMISSIONS CONSULTING SERVICES, TARGET DOES NOT REPRESENT OR WARRANT (i) THE LIKELIHOOD OF YOUR SUCCESS IN OBTAINING ADMISSION TO ANY COLLEGE OR GRADUATE SCHOOL PROGRAM, (ii) WHETHER THE ADMISSIONS CONSULTING SERVICES WILL ENHANCE THE STRENGTH OF YOUR ADMISSION APPLICATION(S), AND (iii) THAT YOU ARE GUARANTEED TO OBTAIN ADMISSION TO ANY COLLEGE OR GRADUATE SCHOOL PROGRAM. YOU SPECIFICALLY AGREE THAT TARGET SHALL NOT IN ANY WAY BE LIABLE FOR YOUR FAILURE TO ACHIEVE ADMISSION TO ANY COLLEGE OR GRADUATE SCHOOL PROGRAM.
(d) IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF THE TARGET SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS, INCLUDING, WITHOUT LIMITATION, THAT ARISING FROM LIABILITY TO ANY THIRD-PARTY.
(d) NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU (WHETHER ORAL OR WRITTEN) FROM TARGET OR THROUGH OR FROM THE TARGET SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
16. Limitation of Liability
YOU EXPRESSLY AGREE THAT TARGET SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF TARGET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (a) THE USE OR INABILITY TO USE THE TARGET SERVICES AND/OR ANY OF THE THIRD-PARTY APPLICATIONS; (b) THE COST OF ANY SUBSTITUTE GOODS OR SERVICES PURCHASED TO REPLACE ANY GOODS OR SERVICES PURCHASED OR OBTAINED FROM TARGET, INCLUDING, WITHOUT LIMITATION, THE TARGET SERVICES; (c) THE DISCLOSURE OF, UNAUTHORIZED ACCESS TO, OR ALTERATION OF YOUR INFORMATION OR MESSAGES; (d) THE STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OF ANY OTHER THIRD-PARTIES, INCLUDING, WITHOUT LIMITATION, OTHER USERS OF THE TARGET SERVICES; (e) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THE TARGET SERVICES; (f) ANY INCOMPATIBILITY BETWEEN THE TARGET SERVICES AND OTHER WEB SITES, SERVICES, SOFTWARE OR HARDWARE, INCLUDING, WITHOUT LIMITATION, THE THIRD-PARTY APPLICATIONS; (g) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THE TARGET SERVICES IN AN ACCURATE OR TIMELY MANNER; (h) ANY LOSS OF USER DATA, INCLUDING, WITHOUT LIMITATION, DAMAGED OR LOST USER FILES, THROUGH USE OF THE TARGET SERVICES; AND (i) ANY OTHER MATTERS RELATING TO YOUR USE OF THE TARGET SERVICES AND/OR THE COLLEGE OR GRADUATE SCHOOL ADMISSIONS PROCESS NOT SPECIFICALLY SET FORTH HEREIN.
You shall indemnify, defend, and hold harmless Target, and its officers, directors, managers, members, employees, agents, third-party services providers, vendors, customers and clients, from and against any and all personal, direct and/or third-party claims, suits, demands, actions, causes of action, liabilities, damages, losses, expenses, costs, fees and other charges (including, without limitation, reasonable attorneys' fees, costs and expenses), resulting from or relating to: (a) your use of any of the Target Services whatsoever, including, without limitation, the breach or failure of any of your representations, warranties or covenants pursuant to this User Agreement; (b) the college or graduate school admissions process, generally (as such in any manner may relate to your use of any of the Target Services); and/or (c) your use, either directly or indirectly, of the Target Test Prep GMAT Quant product for any purpose other than those specifically permitted by this User Agreement, including, without limitation, for competitive purposes. Target reserves the right to assume, at its sole expense, the exclusive defense and control of any pending or threatened third-party matter or proceeding subject to indemnification by you, in which event you will fully cooperate with Target in asserting any and all available defenses.
18. Consent and Release
During your use of the Target Services, Target may solicit your feedback and comments for use in its promotional materials. In addition, Target may take photographs and make video and voice recordings during various sessions of the Target Services for use in Target's promotional materials. In consideration of your using the Target Services (and for no additional consideration whatsoever), you hereby irrevocably consent and grant your unconditional release to Target concerning its use for promotional purposes of your feedback and comments, name, likeness and image, and/or voice, on its web site(s) and/or through any other medium whatsoever.
19. Trademark Information
The Target Test Prep logo and other Target logos, product and services names may be trademarks, services marks or constitute other intellectual property of Target (the "Target Marks"). You agree not to display or use the Target Marks in any manner without the prior written permission of Target.
You are solely responsible for meeting and maintaining the minimum technological requirements that may be required to use the Target Services that you use or purchase (e.g., having a suitable personal computer, or wireless device, and high speed Internet connection). In addition, you are solely responsible for the costs of operating your personal computer and wireless device, including for the costs of Internet access, messaging charges and airtime. If Target (including, for these purposes, the employees and contractors engaged by Target) will be communicating with you via SMS text messaging, you shall be responsible for ensuring that your wireless device is compatible with SMS text messaging. You may be subject to standard SMS text message charges from your wireless carrier. If you are unsure, we urge you to check with your wireless carrier regarding the SMS text messaging terms of your wireless service and the capabilities of your wireless device. You may opt-out of communicating with Target via SMS text messaging by giving notice to such effect to Target in accordance with Section 22 of this User Agreement. Please be advised that any such notice shall not be effective with respect to any third-party service providers of Target.
21. Changes and Amendments
TARGET RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE, MODIFY, ALTER, OR AMEND THE TERMS AND CONDITIONS APPLICABLE TO THE TARGET SERVICES (INCLUDING, WITHOUT LIMITATION, THE RIGHT, AT ITS SOLE DISCRETION, TO TERMINATE ANY OF THE TARGET SERVICES) AND/OR THIS USER AGREEMENT, AT ANY TIME. You may find the most recent version of this User Agreement on the Target Site, with the date of last modification noted above. Any such modifications to this User Agreement shall become effective immediately upon the posting thereof. Therefore, Target encourages you to check the date of this User Agreement whenever you visit the Target Site to verify whether this User Agreement has been updated. You should review this User Agreement on a regular basis to keep yourself apprised of any modifications. Your continued use of the Target Services after the posting of modifications shall constitute your acceptance of the revised terms and conditions of this User Agreement. Notwithstanding any provision to the contrary set forth herein, on occasion Target may (but shall not be obligated to) notify you of modifications to this User Agreement.
You agree that Target may communicate any notices to you (including notices of changes to this User Agreement if Target opts to give notice of any such changes), through e-mail, SMS text message, first class or certified mail (postage pre-paid), or if sent pre-paid, by a federally recognized overnight courier service. You further agree that you may communicate any notices to Target through e-mail: email@example.com, or by first class or certified mail (postage pre-paid), or if sent pre-paid, by a federally recognized overnight courier service, to the following address: 3225 South MacDill Avenue, Suite 129, Tampa, Florida 33629.
23. Consent to Communications; Acknowledgement
You hereby consent to receiving any and all announcements and communications, whether by e-mail or otherwise, that Target deems necessary to send to you for the purposes of its performing the Target Services. Once registered for any of the Target Services, you should check the Target Site and the e-mail address you provided in your registration profile for any changes to the scheduling or location of the Target Services for which you are registered. You hereby agree and acknowledge that Target shall not be responsible for your failure to know the schedule or location of any of your Target Services.
24. Entire Agreement
This User Agreement governs your use of the Target Services and constitutes the entire agreement between you and Target. This User Agreement supersedes any prior agreements between you and Target. Additional terms and conditions may apply when you use the services of third-party services providers, including, without limitation, the Third-Party Applications. Any such additional terms and conditions shall not be deemed to modify or amend this User Agreement or the rights of Target hereunder.
25. Governing Law and Venue
This User Agreement and the relationship between you and Target shall be governed by the laws of the State of Florida, without regard to its conflicts of law provisions, and as applicable, the laws of the United States of America. You agree that notwithstanding any statute or law to the contrary, to the extent permitted by law, any claim or cause of action arising out of or relating to use of the Target Services or this User Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You further consent and agree that the courts of the State of Florida sitting in Hillsborough County, Florida are the exclusive forum for litigation of any claim or cause of action arising out of or relating to use of the Target Services or this User Agreement, and you expressly submit to the jurisdiction of said courts and waive any objection to venue or jurisdiction.
26. Force Majeure
Target shall not be liable for any failure, cancellation or delay in the performance of the Target Services to the extent that such failures, cancellations or delays are proximately caused by forces beyond the reasonable control of Target, including, without limitation, acts of God, acts of war, and/or the failure of any third-party service providers, suppliers, subcontractors, and carriers.
Any failure by Target to exercise any rights or enforce any of the terms of this User Agreement shall not constitute a waiver of such rights or terms. If any provision of this User Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent, the remainder of this User Agreement, or the application of such provision in other circumstances, shall not be affected thereby, and each provision of this User Agreement shall be valid and enforced to the fullest extent permitted by law. The titles and section headings of this User Agreement are for convenience of reference only and shall not be deemed to be a part of this User Agreement. A printed version of these terms and conditions and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these terms and conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
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