This document was last updated: November 13, 2016.
BY CONTINUING TO USE THE WEBSITE OR THE BARPROSE PLATFORM, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS TOU. YOU FURTHER ACKNOWLEDGE THAT YOU ARE USING THE WEBSITE OR THE BARPROSE PLATFORM FOR THE SOLE PURPOSE OF BAR EXAM AND NOT AT THE DIRECTION OF, OR FOR THE BENEFIT OF, A COMPETITOR OF BARPROSE LLC.
This TOU is a legal agreement between you (an individual) and BarProse LLC, a California limited liability company ("BarProse") governing your use of the BarProse Platform, as defined herein, available through the Website and any associated information, including but not limited to, content, products, components, media, user manuals or guides, educational materials, downloadable content, printable content, and services (collectively, the “BarProse Platform”). The BarProse Platform is licensed, not sold. By using the BarProse Platform, you agree to be bound by the terms of this TOU. If you do not agree to the terms of this TOU, you are prohibited from using the BarProse Platform and the Website; and you must immediately cease any and all use.
Portions of the Website may be made available only to persons who have registered and who have been issued a username and/or password or other positive identifiers by BarProse ("Registered Users"). Only Registered Users are authorized to access the restricted portions of the Website. Your use of the Website and access to the information contained therein is expressly conditioned upon your agreement that all such access and use shall be governed by this TOU.
You shall not: (a) use, copy, merge, or make derivative works of the Website or BarProse Platform or any portion thereof, except as specifically authorized in this TOU; (b) rent, lease, sublicense, distribute, transfer, copy, modify, store, publish, adapt, or timeshare the BarProse Platform or any of your rights under this TOU, except as expressly authorized in this TOU; (c) provide unauthorized third parties with access to or use of the BarProse Platform; (d) reverse engineer, disassemble, decompile, or otherwise attempt to access the source code of the BarProse Platform, except and only to the extent that such activity is expressly permitted by applicable law; (e) use automated scripts to collect information or otherwise interact with the BarProse Platform in an unauthorized manner; (f) impersonate any person, entity, or otherwise misrepresent yourself, your age, or your affiliation with any entity; (g) use the Website or BarProse Platform in any unlawful manner or in any manner that could harm or disable the Website; (h) use the BarProse Platform to upload, post, send, store, or otherwise transmit any content that BarProse finds objectionable; or (i) use the BarProse Platform after any expiration, termination, or cancellation of this TOU or the license granted herein.
You agree not to post or transmit any information through the Website which (i) infringes the rights of others or violates their privacy or publicity rights, (ii) is unlawful, threatening, abusive, defamatory, libelous, vulgar, obscene, profane, indecent or otherwise objectionable, (iii) is protected by copyright, trademark or other proprietary right without the express written permission of the owner of such right, (iv) contains unauthorized or malicious software such as viruses. You shall be solely liable for any damages resulting from your infringement of any copyright, trademark or other proprietary right, or any other harm caused by your use of the Website.
A student may cancel his or her enrollment in BarProse Bar Review at any time. To cancel enrollment, an email must be sent to firstname.lastname@example.org. Full or partial refunds shall be granted at the discretion of BarProse.
The BarProse Platform is licensed, not sold, to you for use only according to the terms of this TOU, and BarProse reserves all rights, including without limitation intellectual property rights, not expressly granted to you. BarProse retains sole and exclusive ownership of the BarProse Platform and all title and intellectual property rights therein. To the extent that The BarProse Platform is protected by national and international copyright, trademark, service mark, patent, patent registration, trade secret, know-how, or other proprietary rights and laws, the unauthorized reproduction or distribution thereof is subject to civil and criminal penalties. To the extent you acquire any right to the BarProse Platform or derivative works or improvements of the BarProse Platform, you hereby assign to BarProse all right, title, and interest in and to the BarProse Platform and derivative works and improvements of the BarProse Platform.
Any communications or material of any kind that you e-mail, post, or otherwise transmit through the BarProse Platform, including essays, data, content, questions, comments, complaints, or suggestions (your "Communications") will be treated as non-confidential and non-proprietary. You hereby grant a perpetual, royalty free, worldwide license to BarProse to reproduce, disclose, transmit, publish, broadcast, or post your Communications either on the Website or elsewhere with no liability or obligation to you. BarProse and its affiliates, licensors, and agents are free to use any ideas, concepts, know-how, or techniques contained in your Communications for any purpose including, without limitation, developing and marketing products using such information, with no additional consideration provided to you.
BarProse or its agents may provide you with support services related to the BarProse Platform ("Support Services"). Such Support Services will be provided by BarProse or its agents at no charge during the term of this TOU. Use of Support Services is governed by the BarProse policies and programs described in the BarProse Platform or on the Website. Any supplemental materials provided to you as part of the Support Services shall be considered part of the BarProse Platform and subject to this TOU. With respect to technical information you provide to BarProse or its agents as part of the Support Services, you agree and acknowledge that BarProse or its agents may use such information for its business purposes, including for product support and development for which you will make no claim. Neither BarProse nor its agents will use such technical information in a form that personally identifies you.
BarProse may, at its sole discretion and with or without notice, use third-party service providers to assist in providing the BarProse Platform (each, a “Third-Party Service Provider”). You consent and authorize BarProse to delegate the authorizations you provide to BarProse to its Third-Party Service Provider(s) as BarProse deems necessary or desirable. You agree that this TOU shall inure to the benefit of such Third-Party Service Providers and such Third-Party Service Providers are deemed to be third-party beneficiaries of this TOU. You also agree that all references to “BarProse” within this TOU and any incorporated terms are also deemed to include, where applicable, BarProse’s agents, such as the Third-Party Service Providers.
You acknowledge that BarProse reserves the right to, and may from time to time, monitor any and all data transmitted or received through the Website or the BarProse Platform. BarProse, at its sole discretion and without further notice to you, may (but is not obligated to) review, censor or prohibit the transmission or receipt of any information which BarProse deems inappropriate or that violates any term or condition of this agreement. During monitoring, information may be examined, recorded, copied, and used for authorized purposes. Use of the Website or the Platform, authorized or unauthorized, constitutes consent to such monitoring.
The license granted to you herein will terminate automatically in the event you violate any provision of this TOU. You may terminate or cancel the license granted by discontinuing use of the BarProse Platform and providing BarProse written notice. In the event of termination for any reason, you shall either delete or destroy any media containing the BarProse Platform, or materials derived therefrom, or return such to BarProse. The termination of this TOU does not relieve either party of its rights and obligations that have previously accrued. All matters that (a) expressly survive the termination of this TOU, (b) relate to the termination of this TOU, or (c) in the normal course would not occur or be effectuated until after any such termination, as well as all rights and obligations of the parties pertaining thereto, shall survive any termination and be given full force and effect notwithstanding any termination of this TOU. Otherwise, the license terminates upon the administration of the applicable bar exam. Further, BarProse reserves the right to terminate your access and use of the BarProse Platform with or without notice.
These TOU shall be governed by and construed in accordance with the laws of the State of California, without reference to any conflict of law principles. Further, any such claim or cause of action shall be brought exclusively in the state or federal courts located in Sacramento, California, and you agree to submit to the exclusive personal jurisdiction of such courts.
THE BARPROSE PLATFORM AND THE WEBSITE ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; TITLE; NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; THAT THE BARPROSE PLATFORM’S OR THE WEBSITE’S FUNCTIONS WILL MEET YOUR REQUIREMENTS; THAT OPERATION WILL BE UNINTERRUPTED OR ERROR FREE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE INFORMATION PROVIDED VIA THE BARPROSE PLATFORM OR THE WEBSITE WILL BE ACCURATE, TIMELY, OR COMPLETE; THAT YOUR REGISTRATION INFORMATION, COMMUNICATIONS, OR OTHER PERSONAL INFORMATION WILL BE SECURE; THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY ADVICE, INSTRUCTIONS, OR RECOMMENDATIONS IN THE BARPROSE PLATFORM OR THE WEBSITE; OR THAT THE BARPROSE PLATFORM WILL BE VIRUS FREE OR OTHERWISE SAFE FOR YOUR COMPUTER OR OTHER ELECTRONIC EQUIPMENT. NEITHER BARPROSE NOR ITS EMPLOYEES, OFFICERS, TRUSTEES, MEMBERS, AGENTS, CONSULTANTS, CONTRACTORS, OR LICENSORS PROVIDE ANY GUARANTEE AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY, OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA, AND EXPRESSLY DISCLAIM ALL LIABILITY FOR STATEMENTS AND CONDUCT OF ANY THIRD PARTIES USING THE BARPROSE PLATFORM AND FOR ERRORS OR OMISSIONS IN, OR THE MISUSE OR MISINTERPRETATION OF, ANY INFORMATION CONTAINED IN THE BARPROSE PLATFORM OR THE WEBSITE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BARPROSE OR ITS EMPLOYEES, OFFICERS, TRUSTEES, MEMBERS, AGENTS, CONSULTANTS, CONTRACTORS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE BARPROSE PLATFORM, RELIANCE ON THE BARPROSE PLATFORM OR INFORMATION PROVIDED THEREBY, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR YOUR PERFORMANCE ON THE BAR EXAMINATION. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL LIABILITY FOR ANY DAMAGES, REGARDLESS OF KIND OR TYPE, TO YOU OR ANY OTHER PERSON, EXCEED THE AMOUNT YOU PAID TO BARPROSE FOR THE APPLICABLE BAR EXAM PERIOD, LESS REFERRALS PAYMENTS MADE TO YOU.
Any action on any claim against BARPROSE must be brought by the user within one (1) year following the date the claim first accrued, or shall be deemed waived.
In the event that you access the BarProse Platform, or any portion thereof, at the direction of, or for the benefit of a competitor of BarProse, you agree that such use may cause BarProse to suffer losses that are inherently difficult to quantify (“Improper Competitive Use”). Further, you agree that it is reasonable to calculate the damages for each Improper Competitive Use at $1,000,000 USD; and hereby agree and stipulate that this amount is not a penalty, but a reasonable measure of damages based upon the typical losses in the technology industry. This liquidated damages provision shall only apply to Improper Competitive Use and shall not preclude BarProse’s ability to recover for other acts in breach of this agreement in addition to claims for the liquidated damages herein.
You agree to defend, indemnify, and hold BarProse and its employees, officers, trustees, members, agents, consultants, contractors, and licensors harmless from and against any and all liabilities, claims, and expenses, including attorney’s fees, that arise from your use of the BarProse Platform, including without limitation, your violation of this TOU. BarProse reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to cooperate with BarProse in asserting any available defenses.
You acknowledge and agree that each provision of this TOU that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this TOU. This TOU shall not be assignable by you but shall be assignable by BarProse. If any provisions of this TOU are invalid under applicable law, they shall be enforced to the maximum permissible extent to effect the intent of the parties, and the remaining provisions will remain in full force and effect. Section titles or captions herein, which are included for purposes of convenience only, shall not be considered a part of this TOU in construing or interpreting any of its provisions. Your agree that your use of the Website and the Platform will comply with all applicable laws, rules and regulations that govern the export of technical data.