IMPORTANT – THESE TERMS OF USE APPLY TO THE ACT ONLINE PREP SUBSCRIPTION SERVICE. TO ACCESS THE SERVICE YOU SHOULD READ THESE TERMS CAREFULLY, AND IF YOU AGREE, CLICK THE “CONTINUE” BUTTON TO ACCESS THE ACT ONLINE PREP SUBSCRIPTION SERVICE, SUBJECT TO THESE TERMS.
You are receiving access to ACT Online Prep subscription service (the “Service”) either because you have directly obtained a subscription to the Service, or because you have been identified by your school or other organization licensing the Service (sometimes referred to in these Terms as the “Licensee” or your “Sponsor”) as a user of the Service. Your use of the Service is governed by these Individual Terms of Use (these “Terms” or “Terms of Use”). If there is a conflict between these Terms and any license agreement executed by the Licensee and ACT, Inc. (“ACT”), these Terms control.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, DO NOT CLICK CONTINUE AND DO NOT USE THE SERVICE. YOUR USE OF THE SERVICE ACKNOWLEDGES THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
1. Use of Service. Subject to these Terms of Use, your right to use the Service is personal to you. You agree to be solely responsible for your actions and use of the Service. In your use of the Service, you agree not to impersonate any person or entity or falsely state or otherwise misrepresent your identity or affiliation with a person or entity. You may not share or otherwise divulge access information assigned to you with any other person. The Service is intended to prepare you for the ACT® test. For best results, use the Service on equipment meeting ACT’s minimum specifications, which ACT may publish and update periodically.
The Service may, in ACT’s sole discretion, allow and provide for scoring of one or more of your responses to sample writing prompts. If that functionality is made available to you, you would receive at least one writing “unit” enabling the scoring of one of your writing responses. In its sole discretion, ACT may provide for and allow the purchase of additional writing units from ACT on terms, including fees, as are set by ACT.
2. Privacy Policy and Notice of Collection of Personally Identifying Information. ACT collects personally identifying information when you register for and use the Service and our processing of such information, including collection, use, transfer and disclosure, is described in the ACT Privacy Policy (www.act.org/privacy.html), as it may be amended from time to time. By accepting these Terms and using the Service, you acknowledge and agree to the provisions of the ACT Privacy Policy, including, but not limited to, ACT’s use and disclosure of data described in such policy.
Notice to International Subscribers: Your personally identifying information may be transferred outside of your home country to the United States to ACT or a third party service provider for processing and will be subject to use and disclosure under the laws of the United States. It may also be accessible to law enforcement and national security authorities in the United States. You voluntarily register for and use the Service and in doing so you provide personally identifying information to ACT and/or third party service providers, some of which is mandatory. If you do not provide certain personally identifying information that is mandatory, such as name, gender, address and date of birth, you may not be able to complete your registration for the Service. For a full description of ACT’s privacy policy and practices please review the ACT Privacy Policy (www.act.org/privacy.html). When you register for the Service, you consent to the ACT Privacy Policy, which is incorporated into these Terms of Use by this reference, including consenting to the collection of personally identifying information and its subsequent use and disclosure. Any questions about the ACT Privacy Policy or this notice should be directed to our Data Protection Official, Vice President, Data Management at DPO@act.org.
3. Access to the Service. Unless your Sponsor discontinues your access to the Service as may be permitted in a license agreement between ACT and your Sponsor, if applicable, and subject to these Terms of Use, you will have access to the Service for one year from the date you first access the Service. You agree that ACT may terminate your account (or any element of your account), or access to or use of the Service if you violate these Terms or otherwise improperly use the Service or if your Sponsor discontinues your access to the Service. In the event of ACT terminating your account (or any element of your account), or access to or use of the Service, you must immediately cease and desist from further attempts to use the Service. These Terms will continue in effect for the duration of your use of the Service and will survive any expiration or termination. Notwithstanding anything in these Terms of Use, at law, or in equity to the contrary, other than pursuant to your claim for direct damages caused by any ACT breach of these Terms, ACT will be entitled to retain all amounts paid by you for the Service. ACT will have no obligation to refund any amounts you paid for the Service, even in the event of early termination.
4. Service Ownership. The contents of the Service belong to ACT or to its vendors. ACT or its vendors own all right, title, and interest in the ACT Online Prep materials and service offering comprising the Service. ACT also owns the trademarks ACT® and ACT Online Prep™. Through your use of the Service or otherwise, you do not and will not acquire any right, title, or interest in the Service or its contents, or ACT’s trademarks. THE CONTENTS OF THE SERVICE, INCLUDING ITS "LOOK AND FEEL" (E.G., TEXT, GRAPHICS, IMAGES, LOGOS, AND BUTTON ICONS), EDITORIAL CONTENT, NOTICES, SOFTWARE ELEMENTS (INCLUDING HTML-BASED COMPUTER PROGRAMS, MOBILE APPLICATIONS, OR OTHERWISE), AND OTHER MATERIALS ARE PROTECTED UNDER BOTH UNITED STATES AND FOREIGN COPYRIGHT, PATENT, TRADEMARK, AND OTHER LAWS.
5. Restrictions. You must not and may not sell, transfer, sublicense, disclose, or otherwise make the Service or any component thereof available to any third party. You must not and may not reverse engineer, decompile, translate, adapt or disassemble the Service. Except for contemplated interactions with the Service and your results generated by use of the Service, you may not copy, reproduce, republish, upload or transmit, in any way, any part or component of the Service in any medium without the express written consent of ACT. You must not remove any proprietary notice of ACT from any part of the Service. ACT reserves the right to modify or discontinue, temporarily or permanently, the Service for any reason, at its sole discretion, with or without notice.
6. Support for the Service. Any ACT technical support provided with respect to the Service will not include assistance with configuring computer hardware, mobile devices, installing or operating computer operating systems, Internet browsers, mobile applications or any software application, regardless of the source. Periodically, ACT will conduct scheduled and unscheduled maintenance of the Service. During such maintenance periods, you may be unable to access the Service and ACT will have no liability for such downtime. Access to this support may be limited to ACT’s normal U.S. business hours (currently 8:30-5:00 central time, Monday through Friday, excluding holidays).
7. LIMITATION OF REPRESENTATIONS AND WARRANTIES AND LIABILITY. THE SERVICE IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” ACT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED. ACT MAKES NO REPRESENTATIONS OR WARRANTIES OF UPTIME OR THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT THE SERVER ON WHICH THE SERVICE IS ACCESSED IS VIRUS-FREE. YOU ASSUME THE RISK OF ANY DAMAGE TO COMPUTERS OR DEVICES (MOBILE OR OTHERWISE) USED TO ACCESS THE SERVICE OR LOSS OF DATA THAT MAY RELATE TO YOUR USE OF THE SERVICE. ACT DISCLAIMS RESPONSIBILITY (AND ANY ASSOCIATED COSTS OR DAMAGES) FOR: (A) THE OPERATION OF OTHER PRODUCTS THAT MAY INTERFERE WITH THE SERVICE; (B) TECHNICAL DIFFICULTIES THAT MAY ARISE DUE TO THE SIMULTANEOUS OPERATION OF OTHER SOFTWARE ON YOUR COMPUTER OR DEVICES (MOBILE OR OTHERWISE); (C) ANY LOSS OF DATA, DUE TO FAILURE OF THE SERVER FROM WHICH THE SERVICE IS OPERATED OR OTHERWISE, WHICH MAY OCCUR DURING YOUR USE OF THE SERVICE; (D) YOUR ACCESS TO THE INTERNET; AND (E) SELECTION OF THE SERVICE TO MEET YOUR INTENDED PURPOSES AND RESULTS OBTAINED THEREFROM.
ACT FURTHER DOES NOT WARRANT THAT THE SERVICE WEB SITE OR APPLICATION IS COMPATIBLE WITH EVERY INTERNET BROWSER OR WITH EVERY COMPUTER OR DEVICE (MOBILE OR OTHERWISE). ACT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY COMPLICATION, SUITABILITY OR NON-COMPATIBILITY OF THE TECHNOLOGY, SOFTWARE, SERVICE OR HARDWARE YOU USE TO ACCESS AND USE THE SERVICE.
ACT MAKES NO WARRANTIES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND SPECIFICALLY DISCLAIMS ALL OBLIGATIONS OR LIABILITIES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE, REPAIR, MODIFICATION, UPDATE OR PERFORMANCE OF THE SERVICE.
IN NO EVENT WILL ACT BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES. ACT WILL FURTHER NOT BE LIABLE FOR ANY FAILURE OF PERFORMANCE DUE TO CAUSES BEYOND ACT'S CONTROL WHETHER OR NOT ACT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Governing Law and Jurisdiction. These Terms of Use will be construed in accordance with the laws of the State of Iowa, U.S.A. without regard for conflicts of laws principles. You agree to submit to the personal and exclusive jurisdiction and venue of the state and federal courts located within Johnson County, Iowa, U.S.A. for any dispute related to use of the Service or these Terms of Use. These Terms are expressly made subject to any United States government laws, regulations, orders or other restrictions regarding export from the United States of computer hardware, software, technical data or derivatives of such hardware, software or technical data. except as otherwise made available by ACT in its sole and absolute discretion these Terms of Use, the Service and all correspondence will be exclusively in English.
9. Entire Agreement; Severability. These Terms of Use, including any documents linked or referenced herein, which the parties agree are a material part of these Terms, constitute the entire agreement between the parties with respect to the Service and supersede and replace all other prior agreements and understandings related to the Service. If any term, condition or provision of these Terms is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, that will not affect the other terms, conditions and provisions of these Terms or the whole of these Terms of Use, but such term, condition or provision will be deemed modified to the extent necessary in the court’s opinion to render such term, condition or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the parties’ intent and agreements set forth in these Terms of Use.
10. Force Majeure. ACT will not be liable for any delay or failure to perform, which delay or failure is due to causes or circumstances beyond its control, including, without limitation, national emergencies, fire, flood, epidemics, or catastrophe, inclement weather, acts of God, governmental authorities, or third parties, insurrection, war, riots, or failure of transportation, communication, or power supply.
11. Third Party Beneficiaries. There are no intended third party beneficiaries to this Agreement.
12. U.S. Government Licensees. The Service is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and "commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Service with only those rights set forth in these Terms.
13. Arbitration. Unless expressly prohibited by an applicable law, all disputes (other than those relating to infringement of ACT intellectual property) arising out of or relating to these Terms of Use will be resolved by a single arbitrator through binding arbitration administered by the American Arbitration Association (“AAA”), under the AAA Consumer Rules (“AAA Rules”) in effect at the time a request for arbitration is filed with the AAA. Copies of the AAA Rules can be found at www.adr.org. No arbitration may be maintained as a class action, and the arbitrator will not have the authority to combine or aggregate the disputes of more than one individual, conduct any class proceeding, make any class award, or make an award to any person or entity not a party to the arbitration. By agreeing to arbitration, you are waiving your right to have your dispute heard by a judge or jury. Each party will be responsible for its own fees and expenses incurred in connection with any arbitration.