End User Agreement
This is the User Agreement of TestAverage Inc. ("TA"), a New Jersey corporation with its principal office located in Englewood Cliffs, New Jersey. TA hosts two websites (the "Site" or this "Site") with a homepage located at www.testaverage.com and www.gradeassess.com. Included in the services offered by TA through the Site are analytics, study aid and assessment programs for various standardized tests (together, the "For-Fee Services" and, individually, as appropriate, a "For-Fee Service") and free trials and/or free diagnostic tests (together, the “Free Services” and, individually, as appropriate, a “Free Service”). This User Agreement defines the terms pursuant to which you may use the Site, including, but not limited to, your use of the For-Fee Services and/or Free Services. This User Agreement should be read carefully and in conjunction with TA’s terms of service agreement (the "TOS"), which sets forth TA’s policies related to the collection, use, and maintenance of information obtained from individuals who visit the Site.
Acceptance of Terms
Please read this User Agreement and the TOS carefully because, by visiting the Site or using a For-Fee Service or Free Service, you acknowledge and accept the terms of both this User Agreement and the TOS. TA reserves the right, from time to time, to modify, revise and update the terms of this User Agreement and the TOS, and you agree to be bound by such reasonable effort to notify you of any significant change in this User Agreement or the TOS by posting a notice on this page, the TOS page or our home page, as appropriate. In any event, your continued use of the Site constitutes your acceptance of any modifications, revisions and/or updates to the terms of this User Agreement and the TOS.
Copyright on the Site and all materials included in it, including, but not limited to, those materials related to the For-Fee Services and Free Services, are owned by, and licensed by, TA and all rights therein are reserved. You must abide by all copyright notices and restrictions contained on the Site. You may not copy, distribute, enter into a database, display, perform, create derivative works of, transmit, or otherwise use any materials from the Site (including, but not limited to, practice tests, knowledge branch(es), explanations, instructions, and computer programs or other code) (collectively, "Site Materials"), except that you may make a reasonable number of machine readable copies of the downloadable pdf’s (score sheets and select diagnostics or knowledge branch and summaries) to their respective users or (b) if you have purchased a For-Fee Service or registered for a Free Service, TA makes available to you as part of the For-Fee Service or Free Service and grants you permission to reproduce as part of the For-Fee Service or Free Service during your subscription period; provided, however, that when reproducing Site Materials pursuant to (a) or (b) above, you do so only for personal, non-commercial use, and only if you do not alter the text or remove any trademark, copyright, or other notice displayed on the Site Materials.
The stylized TA, the stylized "e" logo, and any other trademarks the Site, whether or not registered, are trademarks owned by TA (collectively, "TA Trademarks"). You may not use TA’s trademarks (i) in connection with any product or service that does not belong to us, (ii) in any manner that is likely to cause confusion among users about whether we are the source, sponsor or endorser of the product or service, or (iii) in any manner that disparages or discredits us.
Payment of Fees: You agree to pay the posted fees for the For-Fee Services. You authorize TA to charge your credit card for all fees you incur for use of the For-Fee Service. If rep does not receive payment from the card issuer, you shall pay TA all amounts due upon demand. TA may take commercially reasonable actions to validate your credit card.
Modifications: TA reserves the right, at its discretion, to modify the For-Fee Services at any time. You shall have the right to terminate this User Agreement by providing TA written notice within fifteen (15) days of any modification to the For-Fee Services that (i) results in a material decrease in the content of the For-Fee Service or (ii) materially decreases your rights or materially increases your obligations under this User Agreement. Your failure to so terminate shall constitute your acceptance of such modifications.
Government Taxes, Fees and Duties: You shall pay any taxes, including, but not limited to, personal property taxes and sales taxes, resulting from you purchase or use of the For-Fee Services. You shall pay any applicable government fees or duties associated with the purchase, delivery or use of the For-Fee Services, including, but not limited to, import fees, export fees and other fees or duties associated with customs.
Non-Exclusive License: With the proper purchase of a For-Fee Service, TA grants you a nonexclusive, non-transferable right to access and use such For-Fee Service during the applicable subscription period. Upon expiration of the applicable subscription period, your right to use the online portion of the For-Fee Service will automatically terminate. Your right to use the online portion of the For-Fee Service will also terminate, without refund of any part of the purchase price, at the sole discretion of TA, if your personal TA account is actively accessed from two or more unique computers at the same time.
Return Policy: You may return any For-Fee Service and receive a full refund of the purchase price, if you notify us in writing within seven (7) calendar days of purchase, provided, however, that you have not completed more than five percent (5%) of the multiple-choice questions included in the For-Fee Service purchased. You may not return a Fee-For Service after the seven-day period has expired.
Ownership: The For-Fee Services and Free Services, including without limitation all text, graphics, sounds, images, videos, and other materials included in or related thereto, are owned by TA, or have been licensed to TA, and are protected by United States and foreign intellectual property laws. Any use of the For-Fee Services or Free Services, except as permitted under this User Agreement, is strictly forbidden and may violate copyright, trademark, patent and other laws. You may not sell or modify the For-Fee Services or Free Services or reproduce, display, publicly perform, distribute, or otherwise use the For-Fee Services or Free Services in any way for any public or commercial purpose. You may not copy, disassemble, modify, reverse engineer, decompile or adapt the HTML or other code that TA uses to generate its web pages, knowledge branches, summaries, videos or other content.
User Accounts: Upon completing the For-Fee Services or Free Services registration process, you will have provided TA with a password and an account identifier (your e-mail address). You are responsible for maintaining the confidentiality of the password and account identifier, and are fully responsible for all activities that occur under your password or account identifier. You agree to immediately notify TA of any unauthorized use of your password or account or any other breach of security. Furthermore, you agree that you will properly exit ("logout") from your account at the end of each session.
Termination of Account: You agree that TA may, without prior notice, immediately terminate your account and your access to the For-Fee Services or Free Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of this User Agreement or other agreements or guidelines made part of the For-Fee Services or Free Services and thereby incorporated by herein, (b) any failure by you to pay to TA amounts due hereunder, as applicable, (c) providing TA with false or misleading information, (d) interference with other users of the Site or the administration of TA services, (e) requests by law enforcement or other government agencies, (f) a request by you (self-initiated account deletions), (g) discontinuance or material modification to the Site (or any part thereof, including, but not limited to, the For-Fee Services and/or the Free Services), (h) unexpected technical or security issues or problems, and (i) extended periods of inactivity.
You may not use the Site in order to transmit, distribute, store or destroy material (a) in violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others, (c) in a manner that will violate the privacy, publicity or other personal rights of others, or (d) in a manner that is defamatory, obscene, threatening, abusive, hateful, or otherwise objectionable, in the sole discretion of TA. Without limitation, TA specifically prohibits use of the Site for any of the following reasons:
- distributing or otherwise publishing, without TA's prior approval, any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services;
- soliciting other users of the Site to join or become members of any online or other service; or
- deleting, revising or otherwise editing any material posted by other persons or entities.
You may not violate or attempt to violate the security of the Site or use the Site to violate the security of other systems or web sites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures, or (c) attempting to interfere with service to any user of the Site, including, but not limited to, the For-Fee Services and the Free Services, (d) sending unsolicited e-mail, including promotions or advertising of products or services. Violations of system or network security may result in civil or criminal liability. TA may investigate violations of this User Agreement and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in such violations.
Links, Frames and Metatags
You may link to our home page as long as the link does not cast TA in a false or misleading light. You may not frame the content of the Site, without our express written consent. You may not use metatags or any other "hidden text" that incorporates any TA Trademarks or our name without our express written consent.
Disclaimer and Limitation of Liability
THIS SITE AND THE INFORMATION, KNOWLEDGE BRANCHES, SUMMARIES, EXPLANATIONS, GRAPHICS, VIDEOS, AUDIO TRACKS, BLOG POSTS, DOCUMENTS, AND ALL OTHER ELEMENTS INCLUDING, BUT NOT LIMITED TO, THE FOR-FEE SERVICES AND THE FREE SERVICES (COLLECTIVELY, THE "CONTENTS"), ARE PROVIDED ON AN "AS IS" BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND. YOUR USE OF THE SITE, INCLUDING, BUT NOT LIMITED TO, THE FOR-FEE SERVICES AND/OR THE FREE SERVICES IS AT YOUR OWN RISK. TA HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE CONTENTS, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TA FURTHER SPECIFICALLY DISCLAIMS ANY WARRANTY (A) THAT THE FOR-FEE SERVICES OR THE FREE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (B) THAT DEFECTS WILL BE CORRECTED, (C) THAT THE SITE CONTAINS NO VIRUSES OR OTHER HARMFUL COMPONENTS, (D) THAT THE SECURITY METHODS EMPLOYED BY TA WILL BE SUFFICIENT, AND (E) THAT THE CONTENTS ARE ACCURATE, CORRECT OR RELIABLE.
EXCEPT AS MAY BE EXPRESSLY STATED ON THIS SITE, NEITHER TA NOR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, GUEST EXERTS OR OTHER AUTHORIZED REPRESENTATIVES SHALL BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SITE, OR THE CONTENTS. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING (WITHOUT LIMITATION) COMPENSATORY, DIRECT, INDIRECT, CONSEQUENTIAL DAMAGES, OR PUNITIVE, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES.
THE CONTENTS COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE CONTENTS. TA RESERVES THE RIGHT TO MAKE IMPROVEMENTS, DELETIONS, CHANGES OR OTHER MODIFICATIONS TO THIS SITE, THE CONTENTS, AND THE PRODUCTS AND SOFTWARE DESCRIBED HEREIN AT ANY TIME WITHOUT NOTICE.
Suspension of Service
TA reserves the right, at its sole discretion, to suspend access to the site at any time for the purpose of upgrading, redesigning, repairing or otherwise maintaining the Site. TA will make commercially reasonable efforts to minimize the time required to perform such upgrades, redesigns, repair or other maintenance activities.
We reserve the right to suspend your use of this Site, including, but not limited to, your use of the For-Fee Services and/or the Free Services, if we determine, at our sole discretion, that a) there has been 130 days of inactivity (e.g. not taking a test) b) that you have violated one or more of the terms of this User Agreement. We reserve the right to suspend or restrict, in whole or in part, your access to the Site and/or to terminate this User Agreement at any time without notice for any reason, including, in the case of this User Agreement, for your violation of any of its provisions. The Disclaimer and Limitation of Liability and Governing Law sections of this User Agreement shall survive any such termination.
This User Agreement will be governed by the laws of the State of New Jersey applicable to contracts made and performed there without regard to its conflicts of law principles. You agree to submit to the exclusive jurisdiction of the state and federal courts sitting in the State of New Jersey and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
TA makes no claims that the Site, including, but not limited to, the For-Fee Services and/or the Free Services, may be lawfully viewed, downloaded or otherwise used outside of the United States. Access to, and the use of, the For-Fee Services and/or Free Services may not be legal by certain persons or in certain countries. If you access and use the For-Fee Services and/or Free Services from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of the all competent jurisdictions.
Invalid Provisions and Waiver
If any of this User Agreement is found to be invalid by any court having competent jurisdiction, that invalidity will not affect the validity of the remaining portions of this User Agreement, which will remain in full force and effect. No waiver of any term by TA will be deemed a further or continuing waiver of such provision or any other provision.