ACT® Online Prep and ACT® Kaplan® Online Prep Live

THESE TERMS OF USE GOVERN YOUR USE OF THE ACT ONLINE PREP AND/OR ACT KAPLAN ONLINE PREP LIVE SUBSCRIPTION SERVICE. IT IS IMPORTANT THAT YOU READ AND UNDERSTAND THE FOLLOWING TERMS. BY CLICKING “SUBMIT,” YOU ARE AGREEING THAT THESE TERMS WILL APPLY IF YOU CHOOSE TO ACCESS OR USE THE SERVICE. IF YOU ARE UNDER THE AGE OF MAJORITY, YOU SHOULD REVIEW THIS AGREEMENT WITH YOUR PARENT OR GUARDIAN TO MAKE SURE THAT YOU AND YOUR PARENT OR GUARDIAN UNDERSTAND IT. THIS SERVICE IS NOT INTENDED FOR USE BY PERSONS UNDER THE AGE OF 13. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, DO NOT CLICK “SUBMIT” AND DO NOT USE THE SERVICE.

ACT, Inc. (“ACT”) is the provider of ACT® Online Prep (“AOP”) and ACT® Kaplan® Online Prep Live (“AKOP Live”), each a subscription service intended to help you prepare for the ACT® test (the “Service”). The Service may not be available in all areas. Use of the Service requires compatible devices, Internet access, and certain software; may require periodic updates; and may be affected by the performance of these factors. For best results, use the Service on equipment meeting ACT’s minimum specifications, which ACT may publish and update periodically.

You are receiving access to the Service either because you have directly purchased it from ACT (a “Direct User”) or because you have been identified as a user of the Service by an organization licensing the Service (a “Sponsored User”), such as your school (sometimes referred to as the “Licensee” or your “Sponsor”). 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.

1.   Your Account. If you are a Direct User of the Service, you will receive an email with instructions for registering your account (“Account”). If you are a Sponsored User, your Sponsor will register your Account and provide you with your Account information. Do not reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account. ACT shall not be responsible for any losses arising out of the unauthorized use of your Account.

2.   Your Profile. After registering your account, you may create a profile (“Profile”) and use the Service in accordance with the Usage Rules, below. You agree to provide accurate and complete information in your Profile and further agree to update your Profile as necessary to keep it accurate and complete during your use of the Service.

The information in your Profile may visible to other users and can be read, collected, or used by them. You are responsible for the personal information you choose to share on this Service. If your Profile is set to “Public”, other users of the Service will see your full profile, including your photo, full name, education, location, join date, activities (such as the games you have played and when you played them), scores, achievements, and links to your social media accounts, if applicable. If your Profile is not public, you may still choose to make your name, education, location, and/or join date visible to other users. If you choose not to make any part of your Profile public, only your first and last initial will be visible to other users.

3.   Usage Rules.  You agree to use the Service in compliance with these usage rules.  ACT reserves the right to modify these usage rules at any time.

You are authorized to use the Service only for personal, noncommercial purposes. You agree not to, or attempt or assist another person to, violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with the Service. You further agree that you will NOT use the Service to:

a.      upload, download, post, email, transmit, store or otherwise make available any content that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, invasive of another’s privacy, hateful, racially or ethnically offensive, or otherwise objectionable;

b.     stalk, harass, threaten or harm another;

c.      if you are an adult, request personal or other information from a minor (any person under the age of 18 or such other age as local law defines as a minor) who is not personally known to you, including but not limited to any of the following: full name or last name, home address, zip/postal code, telephone number, picture, email address, or the names of the minor's school, church, athletic team or friends’

d.     pretend to be anyone, or any entity, you are not — you may not impersonate or misrepresent yourself as another person (including celebrities), entity, another Service participant, an ACT employee, or a civic or government leader, or otherwise misrepresent your affiliation with a person or entity, (ACT reserves the right to, in its sole discretion, reject any name change that could be deemed to be an impersonation or misrepresentation of your identity, or a misappropriation of another person's name or identity);

e.      engage in any copyright infringement or other intellectual property infringement, or disclose any trade secret or confidential information in violation of a confidentiality, employment, or nondisclosure agreement;

f.      post, send, transmit or otherwise make available any unsolicited or unauthorized email messages, advertising, promotional materials, junk mail, spam, or chain letters, including, without limitation, bulk commercial advertising and informational announcements;

g.     upload, post, email, transmit, store or otherwise make available any material that contains viruses or any other computer code, files or programs designed to harm, interfere with or limit the normal operation of the Service (or any part thereof), or any other computer software or hardware;

h.     interfere with or disrupt the Service (including accessing the Service through any automated means, like scripts or web crawlers), or any servers or networks connected to the Service, or any policies, requirements or regulations of networks connected to the Service (including any unauthorized access to, use or monitoring of data or traffic thereon);

i.       plan or engage in any activity that would compromise the validity of a secure administration of the ACT test, including but not limited to, talking about specific secure ACT exam questions, answers, or form identification numbers, asking other users how they answered a specific secure ACT question, or posting what you believe to be the correct answer to a specific secure ACT question;

j.       post links or otherwise direct users to third-party websites, such as Google Docs, or chat forums;

k.     gather and store personal information on any other users of the Service to be used in connection with any of the foregoing prohibited and/or illegal activities.

4.   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 agreeing to 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.

If you are using ACT® Kaplan® Online Prep Live (“AKOP Live”), you will be given the opportunity to choose to allow ACT to send registration information that you have provided (name, address, phone number, email address, current high school and anticipated graduation year) to Kaplan so that you can be contacted with information about products, programs, or services intended to prepare students of the ACT test and other assessments. Your decision to share (or not share) registration information with Kaplan will have no effect on your use of the Services and can be changed at any time by contacting ACT.

Notice to International Users:  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 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.

5. Submissions to the Service. The Service may offer interactive features that allow you to submit materials accessible and viewable by other users. You agree that any use by you of such features shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste. You hereby grant ACT a worldwide, royalty-free, non-exclusive license to use such materials as part of the Service or in providing or marketing the Service, without any compensation or obligation to you. ACT reserves the right to remove or edit any material, at any time in its sole discretion without notice or liability.

ACT has the right, but not the obligation, to monitor any materials submitted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Agreement, and to take any action that ACT in its sole discretion deems appropriate, including, without limitation, terminating your account.

6.   Objectionable Material. You understand that by using the Service, you may encounter material that you may deem to be offensive, indecent, or objectionable, which content may or may not be identified as having explicit material. Nevertheless, you agree to use the Service at your sole risk and ACT shall have no liability to you for material that may be found to be offensive, indecent, or objectionable.

7.   Subscription Term. The term of your subscription is as follows:

a.      If you are a Direct User purchasing AOP or AKOP Live after September 23, 2016, you will have access to the Service for six (6) months from the date that you completed payment or entry of a voucher (or other means of access) for the Service.

b.     If you are a Direct User purchasing an upgraded to AKOP Live on or after September 23, 2016, you will have access to the Service for the longer of six (6) months from the date that you completed payment or entry of a voucher (or other means of access) for the upgrade or until the end of your original AOP subscription (“Upgrade Session”).

c.      If you are a Sponsored User, you will have access to the Service for twelve (12) months from the date your Sponsor registers your Account, subject to your Sponsor’s right to discontinue or extend your access, as may be permitted in the license agreement between ACT and your Sponsor (“Sponsor Session”).  

Once initiated, your access to the Service is continuous and cannot be paused, stopped, transferred, or delayed by you for any reason, including but not limited to, a change in your planned ACT test date. Prior to the conclusion of an Initial or Upgrade Session, you may extend your access to the Service for an additional six (6) months by purchasing a Renewal Session. Renewal Sessions are offered at a reduced price and are only available to purchase prior to expiration of your Initial or Upgrade Session. Renewal and Upgrade Sessions are currently only available to Direct Users.

8.   Termination. You access to the Service will automatically terminate at the end of your Subscription Term. If you fail, or ACT suspects that you have failed, to comply with these Terms or have otherwise improperly used the Service, or if your Sponsor discontinues your access to the Service, ACT, in its sole discretion and without notice to you may: (i) terminate this Agreement and/or your Account (or any element of your account); and/or (ii) terminate your license to the Service; and/or (iii) preclude access to the Service (or any part thereof). Notwithstanding anything in this Agreement, at law, or in equity to the contrary, in the event of an ACT initiated early termination or otherwise, ACT shall have no obligation to refund to you any amount paid for the Service, including but not limited to fees related to Renewal or Upgrade Sessions. 

9.   Intellectual Property.  You agree that the Service, including but not limited to its contents, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software elements (including HTML-based computer programs, mobile applications, or otherwise) used to implement the Service contains proprietary information and material that is owned by ACT and/or its licensors, and is protected by applicable intellectual property and other laws, including, but not limited to copyright. You agree that you will not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with these Terms. No portion of the Service may be reproduced in any form or by any means, except as expressly permitted in these terms. You agree not to sell, transfer, sublicense, disclose, or otherwise make the Service or any component thereof available to any third party. You agree to not modify, reverse engineer, decompile, translate, adapt or disassemble the Service and may not create derivative works based on the Service, or remove any proprietary notice of ACT from any part of the Service.

Notwithstanding any other Terms herein, ACT reserves the right to modify or discontinue, temporarily or permanently, the Service for any reason, at its sole discretion, with or without notice. In no event will ACT be liable for making these changes. ACT may also impose limits on the use of or access to certain features or portions of the Service, in any case and without notice or liability.

All copyrights in and to the Service and related software are owned by ACT and/or its licensors, who reserve all their rights in law and equity. You do not, through your use of the Service or otherwise, acquire any right, title, or interest in the Service or its contents.  THE USE OF THE SOFTWARE OR ANY PART OF THE SERVICE, EXCEPT FOR USE OF THE SERVICE AS PERMITTED IN THIS AGREEMENT, IS STRICTLY PROHIBITED AND INFRINGES ON THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS AND MAY SUBJECT YOU TO CIVIL AND CRIMINAL PENALTIES, INCLUDING POSSIBLE MONETARY DAMAGES, FOR COPYRIGHT INFRINGEMENT.

ACT®, the ACT Logo, ACT Online Prep™, and other ACT trademarks, service marks, graphics, and logos used in connection with the Service are trademarks or registered trademarks of ACT Inc., in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service may be the trademarks of their respective owners. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.

9.   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).

10. DISCLAIMER OF WARRANTIES; LIABILITY LIMITATION. 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 SHALL ACT, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, OR LICENSORS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OR INABILITY TO USE THE SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ACT’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

11. Governing Law and Jurisdiction. The Service is operated by ACT from its offices in the United States. These Terms 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.  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, the Service, and all correspondence will be exclusively in English. 

12. Notices. ACT may send you notice with respect to the Service by sending an email message to your Account email address or a letter via postal mail to your Account mailing address, or by a posting on the Service. Notices shall become effective immediately.

13.  Entire Agreement; Waiver; Severability. These Terms constitute the entire agreement between you and ACT and govern your use of the Service, superseding any prior agreements between you and ACT regarding the Service. If you are a Sponsored User, you may also be subject to additional terms and conditions as between you and your Sponsor. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.  ACT’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision. 

14.  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.

15. 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.