This Agreement is a legal contract between you (“End User” or “you”) and the Graduate Management Admission Council (“GMAC” or “we”) and it governs your access to and use of any content, materials or services accessible from or purchased within the following (including any upgrades or updates thereto provided by GMAC that replace and/or supplement the original service, unless such upgrade is accompanied by a separate agreement, in which case the terms of that agreement will govern):
The GMAT™ Official Starter Kit + Practice Exams 1 & 2
The GMAT™ Official Practice Questions
The GMAT™ Official Practice Exams
(the “Service”, as further defined in Section 1 below.)
PLEASE READ THIS AGREEMENT BEFORE USING THE SERVICE. BY USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY. THESE PROVISIONS ARE AN ESSENTIAL PART OF OUR BARGAIN. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE. YOU CONSENT TO HAVE THIS AGREEMENT PROVIDED TO YOU IN ELECTRONIC FORM. YOU HAVE THE RIGHT TO RECEIVE, AND MAY REQUEST, A NON-ELECTRONIC COPY BY CONTACTING GMAC CUSTOMER CARE AT CUSTOMERCARE@MBA.COM.
- SERVICE: The Service is intended for your own internal purposes to assist you with preparing for the GMAT exam (the “Exam”) by providing you with sample Exam questions and by simulating the Exam experience. You shall not use the Service for any other purpose and you shall comply with all of the restrictions contained herein relating to your use of the Service. The Service includes all documentation and content, including Exam questions, Exam results, lesson summaries, answers, analysis, and all other aspects of the online subscription service found on the GMAT Official Practice web page at http://www.mba.com.
- PAID PORTIONS OF SERVICE:
- Purchase of Additional Components: Certain Services are not available free of charge. You may elect to purchase the nonexclusive rights to access and use additional components of the Service. Such additional purchases (each, a “Paid Service”) shall be governed by the terms and conditions contained in this Agreement.
- Activation Code: To the extent you elect to purchase a Paid Service, you will receive an activation code from GMAC to access and use such Paid Service. Activation codes remain valid for twelve (12) months from the initial purchase.
- Paid Services: Your access to each Paid Service shall commence upon the date that you first access such Service using the applicable activation code (the “Effective Date”) and shall continue for a period of twelve (12) months from such Effective Date, unless earlier terminated by GMAC as provided herein. You acknowledge that as of the Effective Date, the Paid Service will be promptly made available for your use, and you do not have the right to cancel the Service or this Agreement or receive any refund unless otherwise specifically agreed by GMAC in writing or expressly required by operation of applicable law.
- TERMINATION: GMAC may terminate this Agreement upon 30 days' notice posted on http://www.mba.com. Additionally, your rights under this Agreement shall immediately terminate if you fail to comply with any term(s) of this Agreement or if GMAC discontinues the provision of the Services to its customers due to unforeseen circumstances beyond GMAC’s control or to comply with a legal requirement. GMAC may deploy fraud detection software or other means to monitor compliance with these terms. Upon the termination of this Agreement, you shall cease all use of the Service and destroy all material relating to the Service and the content contained therein. Sections 3, 4, 5, 6, 7, 9, 10, 11 and 14 of this Agreement shall survive any termination.
- OWNERSHIP: As between GMAC and you, GMAC retains all right, title and interest in and to the Service, including all copyrights, trademarks, trade secrets, trade names, proprietary rights, patents, titles, software, code, interfaces, text, graphics, applets, video and audio incorporated therein and any user guides, documentation and URLs related to GMAC’s products and services, including the Services. All rights not expressly granted to you herein are reserved by GMAC.
- ELIGIBILITY/RESTRICTIONS ON USE:
- You must have an account on mba.com in order to use the Service. You shall not use the Service if you are under 16 years of age or if your prior use of the Service has been suspended or terminated.
- Except with respect to the purchaser of a bulk order as provided in Section 15:
- You shall not distribute or make all or any part of the Service available for use by another person.
- You may not, and agree not to permit others to, directly or indirectly sell, rent, lease, loan, timeshare, or sublicense the Service.
- The transmission of your mba.com user name or password to allow any person other than yourself to use the Service is expressly forbidden and failure to comply with this prohibition may result is the suspension or termination of the right to continue to use the Service.
- You shall use reasonable efforts to maintain the secrecy of your mba.com user name and password and shall not save such information on a workstation that may be used by multiple users.
- You may not, and shall not enable others to, (i) copy, decompile, reverse engineer, disassemble, or attempt to derive the source code of the Service; (ii) modify, translate, alter, or collect information or content from the Service that can be used to create derivative works of all or any part of the Service; (iii) access or use all or any part of the Service for any purpose other than for your individual GMAT exam preparation; (iv) alter, obscure or remove any copyright, trademark, or other proprietary legend from the Service; or (v) interfere or tamper with or disable any access control or security features of the Service. Any attempt to do any of the foregoing is a violation of the rights of GMAC and constitutes a material breach of this Agreement.
- GMAC reserves the right to monitor your use of the Service and to collect and analyze data relating to your use of the Service. This information includes, but is not limited to, information about your installation of the Service (e.g., installation time, accommodation used, platform, version number), how you use the Service (e.g., session ID, event log, session flow and navigation, error log), and performance on practice Exam questions (e.g., Exam ID, questions, answers, time to answer, Exam score). When you use the Service, your personal information is shared with GMAC, and your use of the Service is compared with your performance on the Exam. GMAC uses this data for certain legitimate business purposes, which include the following: to improve the Service to assist with study efforts and better predict performance on the Exam, for marketing research, to assess your compliance with the terms and conditions of this Agreement, and to notify you of any upgrades or add-ons to the Service. GMAC may also contact you regarding promotional offers to the extent you have opted into receiving such communications. You may opt out of receiving GMAC communications at any time by unsubscribing through your profile on mba.com or by contacting GMAC Customer Care.
- By accessing or using the Service, you are also agreeing to GMAC’s Privacy Statement (the “Privacy Statement”), which can be found here, as updated from time to time. The Privacy Statement defines how, why, and to what extent GMAC collects and uses your personal and non-personal information in relation to its products and services. Without your express permission, GMAC will not disclose or release your information to anyone other than the below, unless required by law to comply with requirements in a judicial or other governmental proceeding or in instances where GMAC determines that it is necessary to detect or prevent fraud or other unlawful activity: GMAC service providers as well as the Service development partners.
- UPDATES AND UPGRADES; USER FEEDBACK:
- GMAC reserves the right, but is not obligated, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the Service from time to time (collectively, “Updates”). By installing or using the Service, you agree to automatically receive Updates.
- If you suggest any new feature, functionality or other Update that GMAC, in its sole discretion, adopts for the Service, such new features, functionality or Updates will be the sole and exclusive property of GMAC and you hereby waive and release any and all other claims to ownership therein.
- DISCLAIMER OF WARRANTIES:
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GMAC NOR ITS THIRD-PARTY LICENSORS OR SERVICE PROVIDERS (COLLECTIVELY, ITS “LICENSORS”) MAKE ANY WARRANTIES OR PROMISES, WHETHER EXPRESS OR IMPLIED, OR BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE, ABOUT THE SERVICE OR YOUR USE THEREOF. THE SERVICE IS PROVIDED “AS-IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT OF SUCH SERVICE SHALL BE WITH END USER. GMAC AND ITS LICENSORS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE, THIRD PARTY SOFTWARE AND ANY SERVICES PROVIDED HEREUNDER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (INCLUDING ALL GUARANTEES OF ACHIEVING A HIGHER SCORE ON THE EXAM), SATISFACTORY QUALITY, NON-INFRINGEMENT, COMPATABILITY WITH THIRD PARTY SOFTWARE OR HARDWARE, OR THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE, OR ERROR-FREE.
- Continuous internet access is required to access the Service, and such access is the sole responsibility of each End User.
- LIMITATION OF LIABILITY: IN NO EVENT WILL GMAC, ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO YOU FOR (A) ANY CLAIM MADE BY ANY THIRD PARTY AGAINST YOU RELATING TO THIS AGREEMENT, OR (B) ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, EVEN IF GMAC OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS, IN WHICH CASE SUCH LIMITATIONS MAY NOT APPLY. IN NO EVENT SHALL GMAC AND ITS LICENSORS’ TOTAL LIABILITY FOR ALL DAMAGES (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED THE PURCHASE PRICE YOU PAID FOR THE SERVICE.
- GOVERNING LAW AND LEGAL PROCEEDINGS: This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, excluding its conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision or any portion thereof of the Agreement to be unenforceable, the remainder of this Agreement shall remain in full force and effect. In the unlikely event of a dispute arising out of or relating to this Agreement or the Service, such dispute shall be brought exclusively in a court of competent jurisdiction located in the Commonwealth of Virginia. The parties hereby agree to waive any right to a jury trial in such dispute. You may resolve disputes with us only on an individual basis, and may not bring a claim as a plaintiff or class member in a class, consolidated, or representative action.
- EXPORT CONTROL: You may not export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was accessed.
- GOVERNMENT END USERS: The Service is a "Commercial Item", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to this Agreement. Unpublished rights are reserved under the copyright laws of the United States.
- GENERAL: This Agreement constitutes the entire agreement between you and GMAC relating to the Service and supersedes all prior or contemporaneous understandings regarding the Service. No amendment to or modification of this Agreement will be binding unless it is in writing and signed by GMAC. GMAC reserves the right to modify this Agreement at any time by replacing this Agreement with an updated Agreement on its webpage. You should check this Agreement periodically for modifications. If any modification is unacceptable to you, your only recourse is to cease use of the Services. Your continued use of the Services shall constitute your binding acceptance of the modified Agreement. In the event of a dispute between the English version and any non-English versions of this Agreement, the English version of this Agreement shall govern, to the extent not prohibited by local law in your jurisdiction.
- CUSTOMER SERVICE: For Technical Support assistance for the Service, you may contact us (i) via e-mail at email@example.com or (ii) via telephone (English language support only), available Monday through Friday at +1 (866) 739-0238 (toll-free within the U.S and Canada only) or +1 (703) 668-9602.
- BULK ORDERS: If you are purchasing the Service in bulk (i.e., more than one subscription for more than one End User), the following additional terms shall apply:
- Bulk orders for the Service shall not be construed as creating a partnership or any relationship between you and GMAC. You are prohibited from implying that any relationships exists and shall not imply that GMAC endorses your products or services. GMAC retains all rights in its products and services, subject to the licenses granted to End Users herein. You must comply with GMAC’s policies on copyrights, trademarks, and logo usage at www.gmac.com/trademarks. If you are a test prep organization, you may incorporate the use of the Service into your courses, provided that a copy of the Service has been purchased for each attendee. You are expressly prohibited from reselling the Service.
- All end users for whom you purchase the Service (“Your End Users”) shall comply with the terms in this Agreement, including, but not limited, to those restrictions set forth in Section 5. You hereby agree that: (i) you shall inform each of Your End Users of the obligations and restrictions herein, and (ii) you shall be responsible for the compliance with this Agreement by each of Your End Users.
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