TERMS OF USE AND PRIVACY POLICY

Important Notice:

By entering and using HTTP://WWW.EXAMPERFORMANCE.COM
you are agreeing to be bound by the following Terms of Use and Privacy Policy.

The Terms of Use and Privacy Policy set forth below constitute a binding contract between the visitors to and users of this website (each one a “User” and collectively “Users”) and Exam Performance Publishing, LLC, a California limited liability company (“Company”) and applies to all websites of the Company and its affiliates, including but not limited to http://www.examperformance.com (collectively “the Website”).
If you do not agree to be bound by the Terms of Use and Privacy Policy, then please exit the Website immediately.
1. Agreement to Be Bound.

Please read all of the following Terms of Use and Privacy Policy before accessing and/or using any of the content (collectively, “the Content”) that is available on or through the Website. By accessing and/or using the Website, you confirm that you have read and understood, and agree to be bound by, all of the Terms of Use and Privacy Policy, including the important warnings, restrictions and disclaimers set forth below..

The Terms of Use and Privacy Policy include, and incorporate by reference, various terms and conditions that are or will be posted at the Website from time to time.

If you do not agree to be bound by all of the Terms of Use and Privacy Policy and the warnings, restrictions and disclaimers, please exit the Website immediately.

The Company reserves the right to revise and update the Terms of Use and Privacy Policy at any time, and the continued access to or use of the Website by a User thereafter shall constitute acceptance of such revised and updated terms.

Users should revisit and review the Terms of Use and Privacy Policy, which were last revised on 9-8-10, to familiarize themselves with any additions, deletions or modifications.
2. Registered Users.

Only Users who have registered with the Company by following the registration procedures set forth on the Registration/Log-In Page are authorized to access and use the products and services made available through the Website (collectively, “the Service”). A “Registered User,” as the term is used in the Terms of Use and Privacy Policy and Privacy Policy, refers to an individual who completes an on-line registration form on the Registration/Log-In Page of the Website and pays for access and use of the Content offered by the Company and whose registration is current at the time of each log-in. Each Registered User must be an individual identified by his or her current legal name and current address, and only one Registered User is permitted for each IP address. Registered User status is not available to groups, business entities, or minors (except as expressly provided in Section 3 below). Passwords and other access and authentication tools may be used only the Registered User to whom they are issued and may not be transferred or shared in any manner or under any circumstances except as expressly provided in Section 3 below. Eligibility, pricing, and procedures for becoming a Registered User may be changed from time to time in the sole and absolute discretion of the Company.

3. Minor. A Registered User must be (a) an adult according to the laws of his or her state of residence or (b) an emancipated minor.

  1. Emancipated minors who apply to become Registered Users will be required to provide documentation in a form acceptable to the Company to verify their status.
  2. Unemancipated minors may not become Registered Users under any circumstances, but the parent or legal guardian of an unemancipated minor may authorize his or her child between the ages of 13 and 17 to access and use the Service. Only the minor who is named by the Registered User during the on-line registration procedure (“the Designated Minor”) will be permitted to access and use the Service. Minors under the age of 13 may not be designated as a Designated Minor. For avoidance of doubt, only the Designated Minor (and not the Registered User who designates the Designated Minor) is permitted to access and use the Service.
  3. By registering on behalf of a minor between the ages of 13 and 17, or by seeking to register as an emancipated minor, the parent, guardian and/or emancipated minor expressly represents and warrants to the Company that he or she is fully empowered under all applicable law to register for access and use of the Service and to enter into and perform his or her obligations under the contract created by the Terms of Use and Privacy Policy, and agrees to indemnify, defend and hold the Company harmless against any liability that may result from such access and use by the Registered User or by the Designated Minor on whose behalf the Registered User is acting.
4. Use of the Website Not Permitted Where Restricted or Prohibited by Law. Access and use of the Website is not permitted in any place where such access and/or use is restricted or prohibited by law.
5. Manner and Duration of Use of the Content. A Registered User is hereby licensed to access and use the Service only for the period of time for which the Registered User has registered and paid in full (“Use Period”), which unless otherwise stated shall be for one (1) year from the date of purchase. During the Use Period, the Registered User may use the Content as follows:

  1. As to Content that the Company designates as available for on-line viewing, the Registered User may view such Content for his or her personal instructional use only but shall not permit others to do so.
  2. As to Content that the Company designates as available for downloading, the Registered User may download and store such Content on the computer whose IP address is associated with the Registered User, and may view the downloaded Content for his or her personal instructional use only, but shall not allow others to do so. Downloaded Content may remain on the Registered User’s computer after the Use Period but may not be used for any purpose other than those uses expressly authorized in these Terms of Use.
  3. Under no circumstances and at no time shall any of the Content be printed out, saved, recorded, copied, transmitted, broadcast, posted, uploaded, published, distributed, displayed, exhibited or shared with third parties in any manner and/or for any purpose whatsoever.
6. Right to Amend Terms of Use. The Company reserves the right, in its sole and absolute discretion, to determine the terms and conditions on which access to the Website, use of the Service and viewing of the Content are permitted to various users of the Website and to change such terms and conditions from time to time by amending the Terms of Use and Privacy Policy except that any such amendment shall affect the rights of a Registered User only at the end of the Use Period then in effect. Except as provided in the previous sentence, any licenses and permissions granted to Users may be revoked by the Company at any time for any reason or no reason in the Company’s sole and absolute discretion. Notwithstanding the foregoing, however, and by way of example only, the Company shall have the right to terminate the access to and use of the Website and the Service by any Registered User who is in breach or default of any term or condition of the Terms of Use.
7. Refunds. Once the Company has accepted payment by a Registered User for the Service, the payment is non-refundable except as expressly required by applicable law, if any. By way of example only, and without limiting the foregoing, no portion of the payment(s) will be refunded if the Company exercises its right to terminate the access and use of the Website and the Service by a Registered User who is in breach or default of any term or condition of the Terms of Use.
8. Reservation of Rights. The Company reserves all rights under copyright, trademark and other intellectual property rights in and to the Website, the Service and the Content in its entirety, including but not limited to titles, trademarks, trade dress, artwork, text, design, audio and visual content, format, configuration, “look and feel,” selection, arrangement and coordination, and all other content of the Website, subject only to the licenses and permissions that may be granted by the Company to a Registered User. 8. Reservation of Rights. The Company reserves all rights under copyright, trademark and other intellectual property rights in and to the Website, the Service and the Content in its entirety, including but not limited to titles, trademarks, trade dress, artwork, text, design, audio and visual content, format, configuration, “look and feel,” selection, arrangement and coordination, and all other content of the Website, subject only to the licenses and permissions that may be granted by the Company to a Registered User.
9. Indemnity. Users hereby indemnify, defend and hold harmless the Company, its shareholders, directors, officers, partners, joint venturers, principals, subsidiaries and affiliates, and their respective shareholders, officers, directors, employees, partners, associates, affiliates, joint venturers, agents and representatives, from any and all claims, debts, demands, suits, actions, proceedings and/or prosecutions (“Claims”) based on allegations which, if true, would constitute a breach by the User and/or the User’s agents, representatives, employees, contractors, or affiliates, of any term of the Terms of Use and Privacy Policy, including but not limited to the representations and warranties set forth above, and any and all liabilities, losses, damages, expenses (including attorneys’ fees and costs) and damages in consequence thereof. Users shall give prompt notice in writing to the Company of any Claims. No compromise or settlement of any Claims shall be made or entered into without the prior written approval of the Company.
10. Cautions and Disclaimers.
10.1 No Endorsement, Sponsorship, Affiliation or Guarantee by the Company. The Company does not endorse, sponsor, or guarantee any of the information, advice, goods, services, or other resources that may be mentioned or made accessible throughout the Website. The Company does not endorse or sponsor, and is not affiliated with, the advertisers or providers of such information, advice, goods, services, or other resources.
10.2 No Guarantees. The Company cannot and does not guarantee that use of the Website, the Service and/or the Content will result in any particular level of performance in standardized tests and/or any other educational, personal or career endeavors or will bestow any other particular benefits on the User. The User assumes the risk of the results or lack of results from his or her use of the Website, the Service and/or the Content.
10.3 No Guarantee Regarding Availability or Quality of Internet Service. The Website may cease to be available, and/or may not operate at peak speed and efficiency, during periods of maintenance and third-party service interruptions and/or by reason of the User’s computer equipment and/or Internet connection and/or for other reasons beyond the control of the Company. Accordingly, the Company makes no guarantee regarding the availability or quality of Internet service relating to the Website.
10.4 General Disclaimer of Liability. The Website, the Service and the Content are made available to Users on an “as-is” basis without warranties or guaranties of any kind, and the Company disclaims any liability for any injury or damage resulting from the access to and/or use thereof, and/or any information, advice, goods, services, or other resources that may be mentioned or made accessible through the Website. Users acknowledge and agree that, in connecting to the Website, information will be transmitted over local exchange, inter-exchange, and Internet backbone carrier lines and through routers, switches, and other devices owned, maintained, and serviced by third party local exchange and long distance carriers, utilities, Internet service providers and others, all of which are beyond the control and jurisdiction of the Company and its vendors and suppliers. Accordingly, the Company assumes no liability for or relating to the delay, failure, interruption, or corruption of the Website and/or the Website Content, or any portion thereof, or any data or other information transmitted in connection with the use of the Website.

To the greatest extent permitted by law, the Company disclaims all warranties, either express or implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, non-infringement of rights of third parties, and fitness for any particular purpose, regarding the Website, the Service and the Content and/or the other goods and services offered by the Company.

The Company, its licensors, and its vendors and suppliers make no representations, warranties or indemnities about the accuracy, reliability, completeness, correctness, effectiveness, or timeliness of the Website, the Service, and/or the Content, or that any of the foregoing satisfy any applicable laws or government regulations.

11. Advertisements. The Website may contain advertisements by third parties, and these advertisements may contain links to other websites. Unless otherwise specifically stated, the Company does not endorse any product or service or make any representation regarding the content or accuracy of any materials contained in, or linked to, any advertisement on the Website.
12. Links to Other Sites. The Website may contain links to third-party websites. If so, these links are provided solely as a convenience to Users. The Company is not responsible for the content of any linked third-party websites, and does not make any representations regarding the content or accuracy of any content or materials on such third- party web sites. If Users access any linked third-party website, Users do so at their own risk. Any use of third-party websites is subject to the terms and conditions and the privacy policy for such websites. The Company shall be entitled to all affiliate income received from linked third-party websites.
13. Limitations on Liability. The Website, the Service and the Content are made available to Users without warranties, representations or indemnities of any kind whatsoever. THE COMPANY, ON BEHALF OF ITSELF AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, PARTNERS, JOINT VENTURERS, PRINCIPALS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, ASSOCIATES, AFFILIATES, JOINT VENTURERS, AGENTS AND REPRESENTATIVES, SPECIFICALLY DISCLAIM ANY LIABILITY (WHETHER BASED IN COPYRIGHT, TRADEMARK, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE WEBSITE (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). The maximum liability of the Company to Users based on the claim of any person, firm or corporation arising out of or in connection with the Website, the Service and/or the Content shall in no case exceed the actual amounts, if any, paid by the User to the Company.
14. Take-Down Notices Under the DMCA. The Company will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). Written notices of claimed copyright infringement must be in strict compliance with all terms and conditions of the DMCA and must be submitted to the following

Designated Agent for the Website:

Service Provider(s): Exam Performance Publishing, LLC
Name of Agent Designated to Receive Notification of Claimed Infringement on behalf of the Company: Jonathan Kirsch, Esq.
Jonathan Kirsch, Esq.
Full Address of Designated Agent to Which Notification to the Company Should be Sent:
Law Offices of Jonathan Kirsch, 1880 Century Park East, Suite 515, Los Angeles, CA 90067
Telephone Number of Designated Agent: (310) 785-1200
Facsimile Number of Designated Agent: (310) 286-9573
Email Address of Designated Agent: jk@jonathankirsch.com

15. Unacceptable Use Policy. Without limiting or diminishing the rights of the Company under the Terms of Use and Privacy Policy, the Unacceptable Use Policy as established by the Company strictly prohibits any and all of the following:
(a) Using the Website to transmit or post any material that contains or contains links to pornography, adult content, sex, or extreme violence or to disseminate or transmit any material that, to a reasonable person, may be abusive, obscene, pornographic, grossly offensive or malicious.

(b) Using the Website to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international law, or any rules or regulations promulgated thereunder.

(c) Using the Website to harm, or attempt to harm, minors in any way.

(d) Using the Website to transmit or post any material that is defamatory or harassing or which threatens or encourages bodily harm or destruction of property.

(e) Using the Website to make fraudulent misrepresentations or offers including but not limited to offers relating to “pyramid schemes” and “Ponzi schemes.”

(f) Using the Website to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures or another entity’s software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.

(g) Using the Website to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other intellectual proprietary or proprietary rights of any third party, including but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.

(h) Using the Website to collect, or attempt to collect, personal information about third parties without their knowledge or consent.

(i) Using the Website to disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes or email on a daily basis or to create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication.

(j) Using the Website to export, ex-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions.

(k) Using the Website or its server as an “open relay” or for similar purposes.

(l) Using the Website for any activity that adversely affects the ability of other people or systems to use the Website or the Internet, including but not limited to using the Website for the dissemination or transmission of any virus, Trojan horse or other malicious, harmful or disability data, work, code or program or for “denial of service” attacks against another website, network or any other person or entity, and/or for interference with or disruption of other websites, services or equipment.

16. Termination. The rights granted to Users under the Terms of Use and Privacy Policy shall terminate automatically and without notice as to any such user in the event of any breach or default by the User, and upon such termination, the User shall make no further use of any kind whatsoever of the Website, the Service and/or the COntent. The Company also reserves the right to suspend, revise and reconfigure, and/or discontinue the Website, the Service and/or the Content, in whole or in part, at any time in its sole and absolute discretion.
17. Entire Agreement. The Terms of use and Privacy Policy, as they may be amended or modified from tiem to time by the Company, represent the complete and entire agreement of the Company and the Users.
18. Applicable Law. The Terms of Use and Privacy Policy shall be interpreted, construed and governed in all respects by the laws of the United States of America and the State of California.
19. Modification and Waiver. The Terms of Use and Privacy Policy may not be modified or altered, and no term or condition may be waived, except by a written instrument signed by an authorized representative of the Company. No waiver of any term or condition of the Terms of Use and Privacy, or of any breach of the Terms of Use and Privacy Policy and Privacy or any portion thereof, shall be deemed a waiver of any other term, condition or breach of the Terms of Use and Privacy Policy and Privacy Policy or any portion thereof.
20. Severability. If any term or provision of the Terms of Use and Privacy Policy is found to be unenforceable for any reason, the Terms of Use and Privacy Policy shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
21. Notices. Any written notice or delivery under any of the provisions of the Terms of Use and Privacy Policy and Privacy shall be deemed to have been properly made by mailing via traceable mail (if a mailing address has been provided to the Company) or by email as follows:
If to a Registered User: At the address given by Registered Users at the time of registration.
If to a User: At the address given by or collected from the User, if any, or by posting to the Terms of Use and Privacy Policy.
If to the Company: Exam Performance Publishing, LLC
C/o Law Offices of Jonathan Kirsch
1880 Century Park East, Suite 515
Los Angeles, CA 90067
Email: jk@jonathankirsch.com
22. Headings. Headings and footers are for convenience only and are not to be deemed part of the Terms of Use and Privacy Policy.
23. Binding on Successors. The Terms of Use and Privacy shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors or assigns of the parties, except that the permission granted to Users to access and use the Website, and the permission granted to Registered Users to access and use the Service and the Content, are personal and non-transferable.
PRIVACY POLICY
The Company wants Users to understand how their personal information, whether provided to the Company by the User and/or obtained by the Company through access and use of the Website, may be collected and used by the Company and/or its licensees and affiliates. The Company’s current Privacy Policy is set forth below.
The Privacy Policy set forth below was last revised on December 6, 2013.
Changes in the Privacy Policy. The Privacy Policy is subject to change from time to time by the Company. The revised and updated Privacy Policy will be posted here. Users are strongly encouraged to periodically revisit the Website and review the Privacy Policy to keep themselves informed of any changes. As noted above, the Privacy Policy was last revised on December 6, 2013.
Collection and Use of Personal Information. User information is collected upon registration and/or log-in. Such personal information may include, but is not limited to, the User’s legal name, email address, mailing address, IP address, age, contact phone number, school affiliation, occupation, username, password, and other particulars requested by the Company and/or provided by the User.
For any transaction requiring payment, credit card and/or other e-commerce information may be collected
Once a User has registered with the Website, the User will not be able to delete his or her profile or any records of his or her activity or usage of the Website from the Company’s database. Users will, however, be able to review, update or change personal information on file with the Company. To view personal information or make such changes, Users should contact us at admin@examperformance.com.
The Company may employ “Cookie” technology to keep track of a User’s current session and to keep track of a User’s information between visits. Cookies are small text files stored on the User’s computer that a website can use to recognize repeat users and to facilitate each user’s ongoing access to and use of a website. Generally, cookies work by assigning a unique number to the user that has no meaning outside of the assigning site. Users should be aware that the Company cannot control the use of “cookies” by advertisers or third parties hosting data for the Company.
The Company conducts research on the demographics, interests, and behavior of Users based upon the information provided at registration, during the use of the Website, or from surveys and/or generated by or maintained in the server log files for the Website. Such personal information is compiled and analyzed on an aggregated basis, and, occasionally, the Company may share the aggregated data with advertisers or business partners.
The Company will not sell or trade the personal information of Users to any list broker or direct mail advertisers unless a User specifically give his or her consent to the Company to do so.
The Company may sometimes permit third parties to offer goods and services through the Website. In such circumstances, the Company is not responsible for any actions or policies of such third parties, and Users should check the applicable privacy policy and other terms and conditions of such third parties before providing any personal information.
In the event that the Company is acquired by, merges with, or becomes aligned with another company or business entity, such other company or entity shall be entitled to use the User”s personal information as set forth in the Terms of Use and Privacy Policy.
Children’s Online Privacy. The Company does not provide services directed to children or otherwise target children and does not collect personal information from children under the age of 18 except as set forth below.

Individuals under the age of 18 may not become Registered Users unless he or she is an emancipated minor.

Individuals between the ages of 13 and 17 may be permitted to access and use the Website if authorized to do so as a “Designated Minor” by a parent or guardian who is a Registered User. Under such circumstances, personal information may be collected from the Designated Minor with the authorization and approval of the Registered User.

The age, legal capacity, and other pertinent information regarding Registered Users, Designated Minors and emancipated minors are subject to verification by the Company through signed documents, proof of age and identity, and other suitable documentation in compliance with the applicable provisions of the Children’s Online Privacy Protection Act (COPPA).
Users who have any questions or concerns about the Privacy Policy set forth above are encouraged to contact the Company at admin@examperformance.com

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