Terms of Service for Educators

These Terms of Service (“Terms”) are a binding agreement between Pocket Prep, Inc. (“Pocket Prep,” “us,” “our,” or “we”) and you. These Terms, together with one or more Order Forms, govern your and your end users’ (each your “User”) use of Pocket Prep for Educators, Pocket Prep for Students, and any other products and services described in the applicable Order Form (collectively, the “Services”).

BY SIGNING THE ORDER FORM OR USING THE SERVICES, YOU AGREE TO THESE TERMS ON BEHALF OF YOURSELF AND YOUR USERS. THESE TERMS INCLUDE A CLASS ACTION WAIVER AND ARBITRATION PROVISION THAT GOVERNS ALL DISPUTES RELATED TO THE SERVICES.

If you accept these Terms on behalf of a school, organization, or other legal entity (“Entity”), you represent that you have authority to bind that Entity to these Terms. In that case, “you” includes both you and the Entity, as well as the Entity’s Users. These Terms remain in effect as long as the Entity or any of its Users access or use the Services.

Services and Access

The Services covered by these Terms include Pocket Prep for Educators, Pocket Prep for Students, and any other products or services listed in the applicable Order Form. Pocket Prep for Educators is a software-as-a-service platform that helps educators prepare students for exams and works with the Pocket Prep for Students mobile and web apps. Pocket Prep for Students is made available to Users under these Terms and the Terms of Service for the student app (the “Student App Terms of Service”), which are incorporated by reference. The applicable Order Form includes additional details about Service features, User limits, subscriptions, and access.

You agree to follow these Terms, keep your and your Users’ login credentials confidential, ensure that your Users comply with these Terms, and make sure any data your Users enter into the Services is accurate and lawful. You must also use the Services only as permitted by these Terms and by applicable law. Any use of the Services by you or your Users that violates these requirements is a material breach of these Terms.

User Privacy

United States federal laws such as the Family Educational Rights & Privacy Act (“FERPA”), the Protection of Pupil Rights Amendment of 1978, the Children’s Online Privacy Protection Act, and certain U.S. state laws provide privacy protections for students of certain educational institutions or children (collectively, “User Privacy Laws”). You acknowledge and agree that you are responsible for complying with all legal requirements of applicable User Privacy Laws; Pocket Prep is not liable for any noncompliance with those legal requirements by any party.

By giving Users access to the Services, you confirm that you and your Users have read Pocket Prep’s Privacy Policy and consent to Pocket Prep’s handling of Personal Information as described in that policy. You are also responsible for determining whether you need any privacy-related permissions or consents, including parent or guardian consent, under applicable law or your own policies. You also represent that any information you submit to Pocket Prep is truthful and accurate and that you will keep it up to date.

If you are subject to FERPA, you acknowledge and agree that (i) Pocket Prep is a contractor working on your behalf and is therefore considered a “school official” for FERPA purposes; (ii) if required by state or federal law, you have specifically listed Pocket Prep as one of your contractors; and (iii) you certify that you have indicated in your annual FERPA notification to parents that you use contractors to provide certain services on your behalf. You, not Pocket Prep, are responsible for obtaining any legally required user or parent or guardian consent to use the Services.

Field of Use

You may only use the Services (and may only permit your Users to use the Services) for educational and non-commercial purposes and according to the User limitations (if any) set forth in the applicable Order Form (the “Field of Use”). You agree, represent, and warrant that you and your Users will not use the Services outside of the Field of Use, including by taking any of the following actions:

• Access or use the Services on any device on which you do not have permission to operate the Services or on which the Services cannot be legally and rightfully operated;
• Use the Services in connection with doing anything abusive, harmful, threatening, harassing, defamatory, bullying, malicious, discriminatory, deceptive, misleading, unethical, unlawful, or which violates another person’s privacy rights, or which is otherwise objectionable;
• Modify, translate, adapt, or otherwise create derivative works or improvements of the Services;
• Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
• Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; or
• Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or any features or functionality of the Services in any manner not expressly permitted by these Terms and the applicable Order Form or otherwise to any unauthorized third party.

Subscriptions, Services, and Payment

Subscription

The Services are made available to Customer as an annual subscription. Customer’s subscription begins on the Subscription Start Date and continues until the End Date, each as specified in the applicable Order Form (“Subscription Term”). The Services are delivered when Pocket Prep makes the Services available to Customer via User login credentials or other access key (“Delivery”). The subscription is deemed delivered and accepted upon Delivery. Pocket Prep may accept or decline a subscription for any reason until the date of Delivery, after which the subscription is non-cancellable during the Subscription Term.

Fees

Customer agrees to pay the fees associated with Customer’s subscription as stated and according to the payment schedule set forth in the applicable Order Form (the “Fees”), as well as any and all applicable sales and use taxes for the purchase of Customer’s subscription based on the Customer address listed in the Order Form, along with any sales and use taxes and any late fees or interest (as described below). All Fees are quoted in United States dollars. Unless otherwise provided in the applicable Order Form, Customer is required to pay all Fees for the Subscription Term in full. Fees for renewal Subscription Terms are due on or before the Start Date for the renewal Subscription Term. Any invoices, payment reminders, or receipts will be delivered to Customer’s email address on file with Pocket Prep; it is Customer’s responsibility to maintain a valid and up-to-date email address with us.

Payment

If Customer arranges to pay Fees by credit card or other payment card, (i) Customer hereby expressly authorizes Pocket Prep to charge the payment method for Fees due for the applicable Subscription Term on each payment due date; (ii) Customer represents and warrants that the payment information provided to Pocket Prep is correct and accurate and Customer is using a payment method that it is legally authorized to use for this purpose; and (iii) Customer agrees that it is solely liable for any payment or credit card fraud, abuse, or unauthorized use by Customer, its Users, or others. Paid Fees are non-refundable unless otherwise stated in the applicable Order Form or as required by law.
If Customer does not pay on time or if Pocket Prep cannot charge Customer’s payment method for any reason, Pocket Prep reserves the right to either suspend or terminate Customer’s access to the Services. In addition, if any payment is not received within 30 days after the due date, then Pocket Prep may charge a late fee of $500 and may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date Fees are paid in full. If Customer’s unpaid Fees are referred to an attorney or collections agency, Customer shall pay all reasonable attorney’s fees or collections agency fees. The provisions of this Section 3(c) shall not apply if and to the extent prohibited by the laws governing the Customer’s jurisdiction.

Support Services

Customer may request via an Order Form certain support services to support its use of the Services or other professional development topics (“Support Services”) in exchange for the applicable Fees stated in such Order Form. Support Services are provided subject to these Terms and the applicable Order Form. Customer understands and agrees that the Support Services are not professional, legal, business, or scientific advice and are not a substitute for professional training, license requirements or good judgment of Customer or its Users. Customer is advised to speak with its legal counsel regarding any professional, legal, business, scientific, or other advice questions.

Ownership and License

Intellectual Property

Customer shall retain all right, title, and interest in and to Customer’s data and content submitted to, processed by, or generated using the Services (“Customer Data”). As between the parties, Pocket Prep owns and shall retain all right, title, and interest in and to the Services and its related and underlying intellectual property. The Services include, without limitation, the Services and all of the features, functionality, ideas, images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, and software code, as well as products, services, and related documentation of the Services, and our trademarks, and other materials available on the Services. Components of the Services not owned or controlled by Pocket Prep are the property of their respective owners. The Services are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary rights laws and international conventions.

License Grant

Subject to these Terms, Pocket Prep grants Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to provide access to Customer’s Users as expressly permitted herein), revocable license to access and use the Services and to permit its Users to access and use the Services within the Field of Use (defined below) pursuant to the terms and conditions of Customer’s subscription to the Services as set forth in these Terms and the applicable Order Form (the “License”). Except as otherwise agreed in writing between the parties, Customer may not use the Services for any commercial purpose (other than for transacting business with Pocket Prep) or for any unlawful or wrongful purpose. This License permits Customer to resell and sublicense PocketPrep for Students to Customer’s student users through Customer’s Campus Bookstore or Learning Management System, or through another distribution mechanism identified by Customer and prior approved by Pocket Prep. The Services are provided to Customer under the License, and not sold, to Customer. Nothing in the License or these Terms is intended to or may be construed as, conferring by implication, estoppel, or otherwise any ownership, license, or other grant of right to any copyright, trademark, or other intellectual property of Pocket Prep or any third party, except as expressly provided in these Terms. Pocket Prep reserves all rights not expressly granted herein.

Customer Responsibility for Users

Customer agrees that Customer: (i) is solely responsible for compliance with these Terms by Customer’s Users; (ii) is solely responsible for Customer’s account under Customer’s subscription, and the accuracy and legality of any data, including Personal Information, which is input to the Services by any and all Users associated with the Customer, and any and all use of accounts of Customer’s Users; (iii) shall ensure that each User accepts the Student App Terms of Service before accessing the Services; (iv) will use reasonable efforts to prevent unauthorized access to or use of the Services, and notify Pocket Prep promptly of any unauthorized access or use; (v) uses the Services only in accordance with these Terms, Services documentation, and applicable law; and (vi) complies with the terms of service of any third party software with which Customer uses the Services. Any use of the Services in violation of the foregoing by Customer or its Users or that in Pocket Prep’s judgment, threatens the security, integrity, or availability of the Services may result in immediate suspension of access to the Services.

Feedback

Customer and its Users may submit comments and suggestions regarding the Services to Pocket Prep, such as improvements, enhancements, and modifications of the Services (“Feedback”). Customer on its own behalf and that of its Users hereby assigns to Pocket Prep all right, title, and interest to all such Feedback and all property rights in the Feedback, including all copyright, patent, trade secret, trademark, and other intellectual property rights. Customer agrees to not allow Pocket Prep to receive any Feedback that it has reason to believe is subject to any intellectual property claim or right of any third party, or subject to license terms that seek to require Pocket Prep to license the Services to any third party.

Reports

Pocket Prep may, from time to time, use non-personal data collected through the Services to generate reports and studies. Pocket Prep uses these reports and studies for internal purposes only. Any such reports or studies are the sole and exclusive property of Pocket Prep. Customer hereby assigns any rights Customer or its Users may have to such reports, studies, and all data contained therein to Pocket Prep in perpetuity throughout the world for any and all present or future uses in any and all languages and for no compensation. All non-personal data collected by Pocket Prep will be treated as nonconfidential and nonproprietary. Pocket Prep shall be under no obligation of any kind with respect to such non-personal data and shall be free to reproduce, make derivative works from, use, disclose, and distribute the reports to others without limitation. Additionally, Pocket Prep may use any ideas, concepts, know-how, or techniques contained in generating reports or studies for any purpose whatsoever, including, but not limited to, developing, manufacturing, or marketing products incorporating such information.

Customer Data

Customer hereby grants Pocket Prep an unlimited, non-exclusive, transferable, sublicensable, and irrevocable license to process and use Customer Data to provide Customer with the Services, provide and improve the Services, generate and use analytics and non-personal data for our business purposes, and to use the outcomes of such processing for any lawful purpose. For the avoidance of doubt, metadata related to Customer Data, Feedback, reports, and all data generated by Pocket Prep as the result of processing Customer Data as permitted by this paragraph (f) are not Customer Data and are the property of Pocket Prep.

Field of Use

Customer may only use the Services (and may only permit its Users to use the Services) for educational and non-commercial purposes and according to the User limitations (if any) set forth in the applicable Order Form (the “Field of Use”). Customer agrees, represents, and warrants that Customer and its Users will not use the Services outside of the Field of Use, including, but not limited to taking any of the following actions:

• Access or use the Services on any devices on which Customer does not have permission to operate the Services or on which the Services cannot be legally and rightfully operated;
• Use the Services in connection with doing anything abusive, harmful, threatening, harassing, defamatory, bullying, malicious, discriminatory, deceptive, misleading, unethical, unlawful, or which violates another person’s privacy rights, or which is otherwise objectionable;
• Modify, translate, adapt, or otherwise create derivative works or improvements of the Services;
• Remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
• Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; or
• Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or any features or functionality of the Services in any manner not expressly permitted by these Terms and the applicable Order Form or otherwise to any unauthorized third party.

Instructor Champions

Educator Referral: Pocket Prep for Educators is made available to educators, schools, and similar organizations (each an “Educator”) for free and allows the Educator to invite students and other contacts known personally to the Educator to register as a user of Pocket Prep for Students using a unique referral link. You may share your unique referral link on social media only within private groups of contacts personally known to you (you may not post your unique referral link on any online platform for general promotion or use by individuals not personally known to you), provided that you always comply with all social media platform terms and conditions. We may from time to time offer Educators rewards or incentives for completed referrals of users who register for Pocket Prep for Students using the Educator’s unique referral link. As an Educator referring Pocket Prep, you must comply with Pocket Prep’s Affiliate Referral Program Terms and any accompanying promotion terms and all applicable laws, including the FTC’s Endorsement Guides (16 CFR Part 255), which require truthful endorsements and clear disclosures of material connections.

Educator Referral License Grant: Subject to these Terms, if you are an Educator signed up for the referral program described in this section, Pocket Prep grants you a limited, non-exclusive, non-transferable, non-sublicensable (except to provide access to your Users as expressly permitted herein), revocable license to access and use the Services and to permit your Users to access and use the Services within the Field of Use pursuant to these Terms (the “Educator Referral License”). These Services are provided to you under the Educator Referral License, and not sold, to you.

Subscription Services

Subscriptions: Pocket Prep for Students and Pocket Prep for Educators are each provided as subscriptions. If those Services are made available to you, your subscription starts on the Subscription Start Date and continues until the End Date as specified when you subscribe (“Subscription Term”). These Services are delivered when Pocket Prep makes the Services available to you via User login credentials or another access key (“Delivery”). The subscription is deemed delivered and accepted upon Delivery. Subscriptions obtained through an Educator’s unique referral link as part of the Instructor Champions program renew automatically at the end of each subscription term. Subscriptions via a self-service purchase or an order form automatically end on the End Date and do not automatically renew. Pocket Prep may accept or decline a subscription for any reason until the date of Delivery, after which the subscription is non-cancellable during the Subscription Term.

Subscription License Grant: Subject to these Terms, if you are a subscriber to the Services described in this section, Pocket Prep grants you a limited, non-exclusive, non-transferable, non-sublicensable (except to provide access to your Users as expressly permitted herein), revocable license to access and use the Services and to permit your Users to access and use the Services within the Field of Use pursuant to the terms and conditions of your subscription to the Services as set forth in these Terms and the applicable Order Form (the “Subscription License”). Except as otherwise agreed in writing between the parties, you may not use these Services for any commercial purpose (other than for transacting business with Pocket Prep) or for any unlawful or wrongful purpose. These Services are provided to you under the Subscription License, and not sold, to you.

Payments

Fees: You agree to pay the fees associated with the Services you sign up to use as stated and according to the payment schedule set forth in the applicable Order Form (your “Fees”), as well as any and all applicable sales and use taxes for your purchase of Services based on your address listed in the Order Form, along with any applicable late fees or interest (as described below). All Fees are quoted in United States dollars. You are required to pay all Fees in full when due. Any invoices, payment reminders, or receipts will be delivered to your email address on file with Pocket Prep; it is your responsibility to maintain a valid and up-to-date email address with us.

Payment: If you arrange to pay Fees by credit card or another payment card, (i) you expressly authorize Pocket Prep to charge the payment method for Fees due on each payment due date; (ii) you represent and warrant that the payment information provided to Pocket Prep is correct and accurate and that you are using a payment method that you are legally authorized to use for this purpose; and (iii) you agree that you are solely liable for any payment or credit card fraud, abuse, or unauthorized use by you, your Users, or others. Paid Fees are non-refundable unless otherwise stated in the applicable Order Form or as required by law.

If you do not pay on time or if Pocket Prep cannot charge your payment method for any reason, Pocket Prep reserves the right to either suspend or terminate your access to the Services. In addition, if any payment is not received within 30 days after the due date, then Pocket Prep may charge a late fee of $500 and may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date Fees are paid in full. If your unpaid Fees are referred to an attorney or collections agency, you shall pay all reasonable attorney’s fees or collections agency fees. The provisions of this section shall not apply if and to the extent prohibited by the laws governing your jurisdiction.

Responsibility for Users

You are responsible for your Users’ compliance with these Terms, your account with Pocket Prep, and the accuracy and legality of any data submitted to the Services by you or your Users, including Personal Information. You must ensure that each User accepts the Student App Terms of Service before accessing the Services. You must also make reasonable efforts to prevent unauthorized access to the Services and promptly notify Pocket Prep if that happens. You and your Users must use the Services only as allowed by these Terms, the Services documentation, and applicable law. If you or your Users violate these requirements, or if your use threatens the security, integrity, or availability of the Services, Pocket Prep may immediately suspend access.

Intellectual Property

The Services: As between the parties, Pocket Prep owns and shall retain all right, title, and interest in and to the Services and their related and underlying intellectual property. The Services include, without limitation, all features, functionality, ideas, images, illustrations, designs, photographs, video clips, text, graphics, icons, software code, related documentation, trademarks, and other materials available through the Services. Components of the Services not owned or controlled by Pocket Prep are the property of their respective owners. The Services are protected by U.S. and foreign copyright, trademark, trade dress, and other proprietary rights laws and international conventions. Nothing in these Terms is intended to, or may be construed to, confer by implication, estoppel, or otherwise any ownership, license, or other grant of rights to any copyright, trademark, or other intellectual property of Pocket Prep or any third party, except as expressly provided in these Terms. Pocket Prep reserves all rights not expressly granted herein. You may not use the Services for any unlawful or wrongful purpose.

Your Data: You own the data and content you submit to, process through, or generate using the Services (“Your Data”). You give Pocket Prep a broad, non-exclusive, transferable, sublicensable, and irrevocable license to use Your Data to provide the Services to you, improve the Services, create analytics and non-personal data for business purposes, and use the results of that processing for any lawful purpose. For clarity, metadata related to Your Data, Feedback, reports, and data generated by Pocket Prep from processing Your Data as allowed under this paragraph are not Your Data and belong to Pocket Prep.

Feedback: You and your Users may submit comments and suggestions regarding the Services to Pocket Prep, such as improvements, enhancements, and modifications of the Services (“Feedback”). You hereby assign to Pocket Prep, on your own behalf and that of your Users, all right, title, and interest to all such Feedback and all property rights in the Feedback, including all copyright, patent, trade secret, trademark, and other intellectual property rights. You agree to not allow Pocket Prep to receive any Feedback that it has reason to believe is subject to any intellectual property claim or right of any third party, or subject to license terms that seek to require Pocket Prep to license the Services to any third party.

Reports: Pocket Prep may, from time to time, use non-personal data collected through the Services to generate reports and studies. Pocket Prep uses these reports and studies for internal purposes only. Any such reports or studies are the sole and exclusive property of Pocket Prep. You hereby assign any rights you or your Users may have to such reports, studies, and all data contained therein to Pocket Prep in perpetuity throughout the world for any and all present or future uses in any and all languages and for no compensation. All non-personal data collected by Pocket Prep will be treated as nonconfidential and nonproprietary. Pocket Prep shall be under no obligation of any kind with respect to such non-personal data and shall be free to reproduce, make derivative works from, use, disclose, and distribute the reports to others without limitation. Additionally, Pocket Prep may use any ideas, concepts, know-how, or techniques contained in generating reports or studies for any purpose whatsoever, including, but not limited to, developing, manufacturing, or marketing products incorporating such information.

Use Requirements and Limitations

Technical Requirements: To access and use the Services, you and your Users must have a compatible computer or handheld device, internet access, and the necessary minimum specifications posted to the Services or described in the applicable Order Form or related documentation (“Technical Requirements”). The Services may request certain privacy permissions from a device. You acknowledge that the terms of your agreement with your or your User’s mobile network provider will continue to apply when using the Services. Data and messaging charges may apply to use of the Services on a mobile device. You may also incur third-party charges, and you accept responsibility for any such charges that arise. If you or the User is not the bill payer for the device being used to access the Services, it will be assumed that you or your User, as applicable, have permission from the bill payer to use the Services on the device.

Use Restrictions: On behalf of yourself and your Users, you agree to the restrictions in this paragraph. You may use the Services only for the purposes expressly allowed by these Terms. You may not use the Services in any unlawful way or in a way that could confuse, harm, or disparage Pocket Prep. You also may not rent, resell, publish, sublicense, market, transfer, copy, reverse engineer, translate, modify, or create derivative works from the Services except as these Terms expressly allow. Fraudulent activity, tampering with the Services, and other illegal conduct are prohibited and may lead to legal action or termination of access. If you breach these Terms, the permissions granted to you under these Terms will end automatically. Any other use of the Services, including reproducing Pocket Prep intellectual property for unapproved purposes, is strictly prohibited without Pocket Prep’s prior written permission.

Pocket Prep reserves the right to suspend or terminate your or your Users’ access to the Services if Pocket Prep determines, in its sole discretion, that you or one of your Users has misused the Services, that suspension or termination is necessary to enforce these Terms, or that it is otherwise necessary to preserve Pocket Prep’s intellectual property or commercial rights. Pocket Prep is not obligated to provide refunds, compensation, or replacement access in any such instance.

Updates: Pocket Prep may choose to develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, or new features (“Updates”), on a schedule determined by Pocket Prep in our sole discretion. Updates may also modify or delete certain features and functionality in their entirety. You agree that Pocket Prep has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Service updates may occur automatically, or you or the User may be prompted to update Service access. You and your Users must promptly complete all Updates. You acknowledge and agree that the Services or portions thereof may not operate properly if you fail to do so. You further agree that all Updates will be deemed part of the Services and will be subject to these Terms.

Security

You and your Users are strictly prohibited from violating or trying to violate the security features of the Services, such as by: (a) accessing data not intended for you or the User or logging onto a server or an account that you or the User 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 unless Pocket Prep expressly authorizes it in writing; (c) attempting to interfere with service to any user, host, or network, such as by submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; or (d) sending unsolicited email, including promotions and/or advertising of products or services, or forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting.

You agree not to use any device, software, or routine to interfere or try to interfere with the proper working of the Services or any activity being conducted on the Services. You further agree not to use or try to use any engine, software, tool, agent, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Services other than the search engine and search agents that we make available on the Services and other than generally available third-party web browsers. If you or your Users violate Pocket Prep system or network security, you or the User may face civil or criminal liability. Pocket Prep will investigate occurrences that may involve such violations. Pocket Prep may involve or cooperate with law enforcement authorities in prosecuting Users who are involved in such violations.

Third-Party Services

The Services may be made available to you or your Users through the App Store or another third-party platform, or may comprise, include, display, or otherwise make available third-party platforms or content (“Third-Party Services”). You acknowledge and agree that Pocket Prep is not responsible for Third-Party Services, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Pocket Prep does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Services. You acknowledge that you are responsible for obtaining all appropriate licenses for the use of any third-party operating system or application. Third-Party Services are provided solely as a convenience to you, and you and your Users access and use them entirely at your own risk and subject to the applicable third parties’ terms and conditions.

Disclaimer of Warranties

You expressly understand and agree that your use of the Services is at your sole risk. The services are provided on an “as-is” and “as-available” basis with all faults and defects. To the maximum extent permitted under applicable law, Pocket Prep, on its own behalf and on behalf of its affiliates and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, including, without limitation, all implied warranties of merchantability, fitness for a particular purpose, title, noninfringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice.

Without limiting the foregoing, Pocket Prep provides no warranty or undertaking, and makes no representation of any kind that the services will meet your requirements, achieve any intended results, be compatible, or work with any other products or services, operate without interruption, meet any performance or reliability standards, or be uninterrupted, timely, secure, error-free or virus-free, or that any errors or defects can or will be corrected. For clarity, neither the “pass guarantee” nor any other guarantee or warranty provided on a direct-to-consumer basis does not apply to the services pursuant to these terms. Pocket Prep does not represent or warrant that the information accessible on the services is accurate, complete, or current. No advice or information, whether written or oral, obtained by you from Pocket Prep, its officers, employees, or representatives shall create any warranty not expressly stated in the terms. This disclaimer of warranties shall apply to the fullest extent permitted by applicable law.

Indemnification

You agree to indemnify and hold harmless Pocket Prep and its officers, directors, employees, affiliates, agents, licensors, and contractors from and against any claims, suits, actions, demands, disputes, allegations, or investigations brought by any third party, governmental authority, or industry body, and all liabilities, damages, losses, costs, and expenses, including without limitation reasonable attorneys’ fees, arising out of or in any way connected with (i) your or your Users’ access to or use of the services; (ii) your Data; (iii) your breach or alleged breach of any warranties made by you herein or your violation of any agreement between you and Pocket Prep; or (iv) your violation of law or the rights of a third party. Pocket Prep reserves the right to assume control of the defense of any third-party claim that is subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses. This section shall not apply to the extent that the laws governing your jurisdiction prohibit you from indemnifying or holding harmless Pocket Prep.

Limited Liability

To the fullest extent permitted by applicable law, in no event shall Pocket Prep or its affiliates, or any of its or their respective licensors or service providers or any of its or their employees, directors, officers, agents, suppliers or third-party service providers be liable to you, your Users, or any other person related to or arising out of use of the services, including, without limitation, for special, indirect, exemplary, incidental, punitive or consequential damages or any damages whatsoever, including, but not limited to, loss of use; loss or compromise of data, profits, or goodwill; business interruption; or computer failure or malfunction; personal injury or property damage, or other damage arising out of or in connection with the use, inability to use, copying, or display of the services. The foregoing limitations will apply whether such damages arise out of breach of contract, breach of warranty, defamation, strict liability, misrepresentation, products liability, violations of law (including regulations), negligence, and other torts, as well as third-party claims, and regardless of whether such damages were foreseeable, whether Pocket Prep was advised of the possibility of such damages, and regardless of the failure of any agreed or other remedy of its essential purpose. Some jurisdictions do not allow certain limitations of liability, so some or all of the above limitations of liability may not apply to you. Without limiting the foregoing provisions or the provisions of the privacy notice in any way, the limit on total cumulative liability owed by Pocket Prep to you or any person for any claims arising from or relating to the platform shall be limited to the Fees paid by you to Pocket Prep for the twelve (12) months prior to the date the claim arises. The foregoing limitations apply even if any remedy fails its essential purpose.

Dispute Resolution

PLEASE READ THIS SECTION CAREFULLY BECAUSE IT CONTAINS A CLASS ACTION WAIVER, REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS, AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM POCKET PREP. You agree that any dispute between you and Pocket Prep arising out of or relating to these Terms or any agreement referenced herein, the Services, or any other Pocket Prep services (collectively, “Disputes”) will be governed by the arbitration procedure set forth below. Nothing in these Terms shall be construed as your waiver of governmental immunity as may be applicable under applicable law. The provisions of this section shall not apply if and to the extent prohibited by the laws governing your jurisdiction.

Informal Dispute Resolution: Pocket Prep prefers to address your concerns without the use of a formal legal case. Before filing a claim against Pocket Prep, you agree to try to resolve the Dispute informally by contacting Pocket Prep. Pocket Prep will contact you by email as part of a good-faith effort to resolve the Dispute informally. If a Dispute is not resolved within 30 days after submission, you or Pocket Prep may bring a formal proceeding.
Arbitration Agreement: You and Pocket Prep each agree to resolve any Disputes through final and binding arbitration. JAMS will administer the arbitration under its rules. The arbitration will be held in Raleigh, North Carolina, United States with one arbitrator. Each party will pay fifty percent (50%) of the cost of arbitration.

Exceptions to Agreement to Arbitrate: Notwithstanding any contrary provision herein, you or Pocket Prep may assert claims, if they qualify, in small claims court in Durham, North Carolina, or any United States county where you are located. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of our Services or infringement of intellectual property rights (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute resolution process described above.
Class Action Waiver: You may only resolve Disputes with Pocket Prep on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed under our agreement.

Limitation on Claims: Regardless of any statute or law to the contrary, any claim or cause of action related to your use of the Services must be filed within one (1) year after such claim or cause of action arose, or else the claim or cause of action will be barred forever.
Governing Law; Venue: To the extent required by laws applicable to you as an educational institution, these Terms shall be governed by and construed in accordance with the laws of the state where you are located, and all claims relating to these Terms or use of the Services shall be instituted exclusively in the federal and state courts of the state where you are located, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. For all other purposes, these Terms shall be governed by and construed in accordance with the laws of the United States and the State of North Carolina, and all claims relating to these Terms or use of the Services shall be instituted exclusively in the federal and state courts of the State of North Carolina, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws. On behalf of yourself and your Users, you waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts as described in this paragraph.

General Terms

Agreements: Pocket Prep may provide you with additional notices, documentation, or terms and conditions applicable to your or your Users’ access to or use of the Services (collectively, “Agreements”). All such Agreements, Order Forms, and the Pocket Prep Privacy Policy are incorporated herein by reference and shall be in addition to, and not in lieu of, these Terms.

Term: Unless terminated earlier in accordance with the terms of these Terms, these Terms commence on the date the applicable Order Form is signed by both parties and shall continue for the duration of all Subscription Terms of all applicable Order Forms or until terminated by either party as permitted by these Terms, whichever occurs first.

Relationship of Parties: No joint venture, partnership, employment, or agency relationship exists between you and Pocket Prep as a result of these Terms or your use of the Services. Pocket Prep is owned and operated in the United States. Pocket Prep makes no claims that the Services are lawful in any other jurisdiction.

Legal Compliance: You agree to comply with all applicable local, state, federal, and foreign laws at all times when using the Services. Pocket Prep makes no representation that the Services comply with legal or regulatory requirements of jurisdictions outside the United States. You acknowledge and agree that you are solely responsible for notifying Pocket Prep if your use of the Services or any component thereof, or any provision of these Terms, violates any law, regulation, or rule of your locality. Use of the Services from jurisdictions where such access is illegal is prohibited. If you or your User choose to use the Services from other jurisdictions, you do so at your own initiative and are responsible for compliance with applicable local laws. Pocket Prep is not responsible for any violation of law in relation to your or your Users’ use of the Services.

Export Controls: You agree to comply with all United States export laws, rules, and regulations, including but not limited to the Export Administration Regulations, and applicable import laws of your locality (if you are not located in the United States), and you agree not to export the Services or any component thereof without first obtaining all required authorizations or licenses. You shall be responsible for any breach of this paragraph (d) by you or your Users.

U.S. Government Rights: The Services are commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
Assignment: You may not assign, delegate, or transfer these Terms, your rights or obligations hereunder, or your account(s) on the Services, in any way (by operation of law or otherwise) without prior written consent from Pocket Prep. Pocket Prep may transfer, assign, or delegate these Terms and our rights and obligations without consent. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

Waiver, Severability: If any provision of these Terms is held invalid or unenforceable under applicable law, that provision shall be construed in a manner consistent with applicable law to accomplish, as nearly as possible, its intended purpose. If that is not possible, the provision shall be severed from the document only to the limited extent necessary, and the remaining portions of these Terms shall remain in full force and effect. Pocket Prep’s failure to enforce any provision of these Terms will not be deemed a waiver of that provision or of any other provision of these Terms.

Force Majeure: Neither party will be liable for delays or failure to perform to the extent caused by a condition (for example, natural disaster, act of war or terrorism, act of God, riot, labor condition, governmental action, pandemic, or internet disturbance) that was beyond the party’s reasonable control.

Confidentiality: Each party agrees to keep confidential any information disclosed by the other party and marked or otherwise identified as “confidential” in connection with the Services. This obligation of confidentiality will survive the termination of these Terms for a period of three years.

Enforcement: Pocket Prep reserves the right (but is not required) to remove or disable your access to the Services at any time and without notice, and at our sole discretion if we determine that you or your Users’ use thereof is objectionable or in violation of these Terms. We have the right to investigate violations of these Terms and any conduct that affects our Services or any of the Services, and in response may take any action Pocket Prep deems appropriate.

Amendments: Pocket Prep reserves the right to amend the terms and conditions of use for the Services effective at the time of posting. Your continued use of the Services following such posting constitutes your acceptance of such additional or amended terms and conditions on behalf of yourself and your Users.

Termination: Pocket Prep may terminate these Terms (i) upon thirty (30) days’ notice to you or (ii) at any time without notice if Pocket Prep ceases to support the Services, which Pocket Prep may do in its sole discretion, or if Pocket Prep learns that you failed to comply with any of the terms and conditions of these Terms or an Order Form. In addition, these Terms will terminate immediately and automatically without any notice if Pocket Prep determines that you or any of your Users violate any of these Terms. You may discontinue use of the Services at any time; however, (A) these Terms and the applicable Order Form(s) shall remain in full force and effect until the End Date of all Subscription Terms and (B) you shall not be entitled to a refund for any Fees. Upon termination, all rights granted to you under these Terms will also terminate, and you must cease all use of the Services, cause all copies of the Services to be deleted or uninstalled from your Users’ devices, and return or destroy any accompanying documentation in your possession or control. Termination will not limit any of Pocket Prep’s rights or remedies at law or in equity.
Survival: The terms and conditions governing Pocket Prep’s intellectual property rights, User privacy, responsibility for Users, the parties’ confidentiality obligations, indemnification obligations, limitations of liability, and any other provisions that by their nature should survive termination or expiration of these Terms shall survive.

Entire Agreement

These Terms and the Agreements incorporated herein (together with the notices, documents, and terms and conditions referenced herein) constitute the entire agreement between the parties with respect to the subject matter hereof. These Terms may be executed in counterparts, each of which shall be deemed an original, and which together shall constitute one and the same instrument. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

BY SIGNING THE ORDER FORM OR USING THE SERVICES, YOU AGREE TO THESE TERMS ON BEHALF OF YOU AND YOUR USERS.