Last Updated: May 21, 2026
Welcome and thank you for your interest in the products and services made available by GraphPrep ("GraphPrep," "we," "us," or "our"). GraphPrep is operated by Kestela LLC, a New York limited liability company doing business as GraphPrep. This Terms of Use Agreement ("Terms of Use," and together with any applicable Supplemental Terms, the "Agreement") describes the terms and conditions that apply to your use of (i) the website located at graphprep.com and its subdomains (collectively, the "Website"), and (ii) the products, services, content, and other resources made available on or through our Website, which include artificial intelligence-powered educational tools that provide step-by-step walkthroughs for SAT and ACT math problems, including interactive graphing calculator walkthroughs when graphing is the strategically optimal approach to solving the problem (collectively, with our Website, the "Service").
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLIES TO ALL USERS VISITING OR ACCESSING THE SERVICE. BY ACCESSING OR USING THE SERVICE IN ANY WAY, ACCEPTING THIS AGREEMENT BY CLICKING ON THE "I ACCEPT" BUTTON, COMPLETING THE ACCOUNT REGISTRATION PROCESS, OR ACCESSING THE WEBSITE, YOU REPRESENT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) YOU ARE AT LEAST THIRTEEN (13) YEARS OF AGE AND ARE NOT BARRED FROM USING THE SERVICE UNDER THE LAWS OF THE UNITED STATES, YOUR PLACE OF RESIDENCE, OR ANY OTHER APPLICABLE JURISDICTION, AND IF YOU ARE UNDER THE AGE OF EIGHTEEN (18), YOU ARE ACCESSING AND USING THE SERVICE UNDER THE GUIDANCE OF A PARENT OR GUARDIAN WHO IS AGREEING TO THE AGREEMENT ON YOUR BEHALF; AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICE.
GraphPrep does not knowingly collect or use personal data from children under the age of thirteen (13) except as permitted under applicable law.
ALL FEES PAID TO GRAPHPREP ARE NON-REFUNDABLE. PLEASE REVIEW SECTION 8 (FEES AND PURCHASE TERMS) CAREFULLY BEFORE PURCHASING A SUBSCRIPTION.
IF YOU PURCHASE A RECURRING SUBSCRIPTION FOR A TERM (THE "INITIAL TERM"), THEN YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT GRAPHPREP'S THEN-CURRENT FEE FOR SUCH FEATURES AND FUNCTIONALITY UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 8.3(a) (AUTOMATIC RENEWAL) BELOW. IF YOU PURCHASE A ONE-TIME PASS, YOUR ACCESS WILL EXPIRE AT THE END OF THE PASS PERIOD AND WILL NOT AUTOMATICALLY RENEW. SEE SECTION 8.5 (ONE-TIME PASSES) BELOW.
SECTION 15 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND GRAPHPREP. AMONG OTHER THINGS, SECTION 15 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 15 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 15 CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH SECTION 15.10: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM, OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
THE AGREEMENT IS SUBJECT TO CHANGE BY GRAPHPREP IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 16.5 (AGREEMENT UPDATES).
PLEASE REVIEW THE GRAPHPREP PRIVACY POLICY TO UNDERSTAND HOW YOUR DATA WILL BE COLLECTED AND USED.
Trademark Notice. SAT® is a registered trademark of the College Board. ACT® is a registered trademark of ACT, Inc. DESMOS® is a trademark of Desmos Studio PBC. None of the College Board, ACT, Inc., or Desmos Studio PBC endorses, sponsors, or is affiliated with GraphPrep or Kestela LLC. The Service incorporates the Desmos Graphing Calculator pursuant to a license granted by Desmos Studio PBC under its API Terms of Service. GraphPrep's use of Desmos Studio PBC's trademarks is limited to identifying the use of the Desmos Graphing Calculator within the Service, in accordance with that license. References to SAT, ACT, and Desmos on the Service are for descriptive purposes only.
The Service and the information and content available on the Service are protected by applicable intellectual property (including copyright) laws. Unless subject to a separate license agreement between you and GraphPrep, your right to access and use the Service, in whole or in part, is subject to this Agreement.
Subject to your compliance with this Agreement, GraphPrep grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service through the Website, including the features and functionality thereof, solely for your own personal purposes.
Your use of, and participation in, certain features and functionality of the Service may be subject to additional terms ("Supplemental Terms"). Such Supplemental Terms will either be set forth in the applicable supplemental Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Use are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Service.
You acknowledge and agree that GraphPrep may update, modify, or discontinue any aspect of the Service from time to time, including updates to the Website. Any future release, update, or other addition to the Service shall be subject to this Agreement.
In order to access certain features of the Service, you may be required to register an account on the Service ("Account").
In registering an account on the Service, you shall (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form (the "Registration Data"), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete.
You acknowledge and agree that you have no ownership or other property interest in your Account, and that all rights in and to your Account are and will forever be owned by and inure to the benefit of GraphPrep. You are responsible for all activities that occur under your Account. As a parent or guardian accepting the Agreement on behalf of a minor user who has registered an Account, you shall monitor such Account and accept full responsibility for any unauthorized use of the Service by minors. You may not share your Account or password with anyone, and you agree to notify GraphPrep immediately of any unauthorized use of your password or any other breach of security. If you provide any information that is untrue, inaccurate, incomplete, or not current, or GraphPrep has reasonable grounds to suspect that any information you provide is untrue, inaccurate, incomplete, or not current, GraphPrep has the right to suspend or terminate your Account and refuse any and all current or future use of the Service. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You shall not have more than one Account at any given time. GraphPrep reserves the right to remove or reclaim any usernames at any time and for any reason. You agree not to create an Account or use the Service if you have been previously removed by GraphPrep or banned from any of the Service.
Subject to your compliance with this Agreement, you may submit certain content (including photographs of math problems, typed problem text, and other materials) through the Service ("Content"), including by way of your prompts, image uploads, questions, and other input to the Service (collectively, "Input"). You, and not GraphPrep, are entirely responsible for all Input that you upload, share, transmit, or otherwise make available through or to the Service. When you make available any Input on or to the Service, you represent that you own and/or have sufficient rights to use such Input in connection with the Service, including to grant the license set forth in Section 3.3 (License to Your Content). In response to your Input, the Service, together with AI Services, may generate new or revised content ("Output"). You acknowledge that the Outputs are based on your Inputs and your Content, and that GraphPrep has no control over any such Inputs or Content. Accordingly, all Outputs are provided "as is" and with "all faults," and GraphPrep makes no representations or warranties of any kind or nature with respect to any Inputs or Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness, or suitability. You are solely responsible for your use of your Outputs created through the Service, and you assume all risks associated with your use of any Outputs.
GraphPrep does not claim ownership of any Inputs or any other Content you submit to the Service, or any Outputs (collectively, "Your Content"). Subject to Section 3.3 (License to Your Content), as between GraphPrep and you, you are the owner of all right, title, and interest in Your Content. Notwithstanding the foregoing, given the nature of the Service, you acknowledge that: (a) Output may not be unique across users and the Service may generate the same or similar output for another user under similar terms; and (b) GraphPrep does not represent or warrant that the Outputs are protectible by any intellectual property rights under applicable law.
You grant GraphPrep a limited, non-exclusive, royalty-free, worldwide license to use, store, process, transmit, reproduce, and display Your Content solely as necessary to operate and provide the Service to you, including transmitting Your Content to third-party AI service providers (such as Google's Gemini API) for the sole purpose of generating Output in response to your requests. This license terminates when you delete Your Content or close your Account, except (i) to the extent we are required to retain copies for legal compliance or as residual backups, and (ii) for any aggregated or de-identified data that no longer identifies you or any individual.
GraphPrep does not use Your Content to train, develop, or improve artificial intelligence models, algorithms, or related technology, and does not authorize its third-party AI service providers to do so with respect to Your Content.
The Service utilizes third-party artificial intelligence services to generate Output, including Google's Gemini API ("AI Services"). You acknowledge and agree that GraphPrep will share your Inputs with the AI Services for this purpose. GraphPrep accesses Google's Gemini API through a paid commercial tier, and Google's applicable terms (currently available at https://ai.google.dev/gemini-api/terms) govern Google's processing of Inputs and Outputs transmitted to its API. You understand that additional license requirements may apply to certain AI Services. GraphPrep will have no liability for the unavailability of any AI Services, or any third party's decision to discontinue, suspend, or terminate any AI Services.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS DESIGNED TO ASSIST WITH UNDERSTANDING MATH PROBLEMS THROUGH STEP-BY-STEP WALKTHROUGHS, WHICH MAY INCLUDE GRAPHING CALCULATOR-BASED VISUALIZATIONS WHEN APPROPRIATE TO THE PROBLEM. BECAUSE THE SERVICE UTILIZES ARTIFICIAL INTELLIGENCE, IT MAY PROVIDE INFORMATION OR WALKTHROUGHS THAT ARE INACCURATE OR INCOMPLETE. YOU AGREE THAT GRAPHPREP WILL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR THE SERVICE (OR ANY AI-ENABLED FEATURE MADE AVAILABLE BY GRAPHPREP OR ITS THIRD-PARTY PROVIDERS) PROVIDING INACCURATE INFORMATION TO YOU. YOU ARE RESPONSIBLE FOR VERIFYING THE ACCURACY OF ANY OUTPUT BEFORE RELYING ON IT FOR ACADEMIC, TESTING, OR OTHER PURPOSES.
Your use of the Service must comply at all times with this Agreement and any applicable AI Services terms. Without limiting the foregoing, you must not share Content on or through the Service, or attempt to create Output through the Service, that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, pornographic, offensive, or profane; (B) infringes or misappropriates any third party's intellectual property rights or other proprietary rights; (C) contains any viruses, worms, or other malicious computer programming codes that may damage the Service; (D) contains personal information, such as financial, medical, or other sensitive personal information including government IDs, passport numbers, or social security numbers; or (E) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without GraphPrep's prior written consent. You may not submit Content that includes any identifiable person or any of their personal characteristics without that person's permission.
You acknowledge that standardized test questions, including those published by the College Board (SAT) and ACT, Inc. (ACT), are copyrighted works owned by their respective organizations. By uploading images or text of such questions to the Service, you represent that your use is for personal study purposes consistent with applicable fair use principles. GraphPrep does not publish, redistribute, or claim ownership of such third-party copyrighted materials, and reserves the right to remove any Content that it believes may infringe third-party rights. GraphPrep complies with the procedures set forth in Section 12 (Digital Millennium Copyright Act (DMCA) Policy) upon receipt of valid takedown notices.
Unless expressly agreed to by GraphPrep in writing elsewhere, GraphPrep may, but has no obligation to, store any of Your Content. GraphPrep has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit, or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. You agree that GraphPrep retains the right to create reasonable limits on GraphPrep's use, processing, and/or storage of Content, including limits on file size, number of files, storage space, processing capacity, and similar limits.
Except with respect to Your Content, you agree that GraphPrep and its suppliers or licensors own all rights, title, and interest in the Service (including but not limited to any computer code, themes, graphics, artificial intelligence prompt configurations, machine learning model selections, methods of operation, documentation, and GraphPrep software) and all improvements, enhancements, and updates made thereto. You shall not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying any Service.
GRAPHPREP, and all related stylizations, graphics, logos, service marks, and trade names used on or with the Service are the trademarks of Kestela LLC and may not be used without permission in connection with your, or any third-party's, products or services. Other trademarks, service marks, and trade names that may appear on or in the Service are the property of their respective owners.
You agree that submission of any ideas, suggestions, documents, and/or proposals to GraphPrep through its suggestion, feedback, or similar pages ("Feedback") is at your own risk and that GraphPrep has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to GraphPrep a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback.
As a condition of use, you agree not to use the Service for any purpose that is prohibited by this Agreement or by applicable laws, rules, or regulations or which is contrary to public order or morals. You shall not (and shall not permit any third party to): (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host, or otherwise commercially exploit the Service or any portion of the Service; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Service or any other portion of the Service; (iii) use any metatags or other "hidden text" using GraphPrep's name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of the Service, except to the extent the foregoing restrictions are expressly prohibited by applicable laws; (v) use any manual or automated software, devices, or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to "scrape" or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Service; (vii) impersonate any person or entity, including any employee or representative of GraphPrep; (viii) collect any personal data of another user without such user's consent; (ix) interfere with or attempt to interfere with the proper functioning of the Service or use the Service in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Service; or (x) copy, distribute, reproduce, alter, damage, modify, or create derivative works of any Content, or use any Content to train, develop, or operate generative AI models, tools, or other automated systems, without written permission of GraphPrep. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Service terminates the licenses granted by GraphPrep pursuant to this Agreement.
GraphPrep may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Service and/or Content, including Your Content, at any time. You hereby provide your irrevocable consent to such monitoring. In the event that you conduct or engage in any of the acts set forth in Section 5, GraphPrep may immediately suspend or restrict your use of the Service, including the Content. In more serious cases, we may terminate your Account if we believe it is necessary. We may also take legal action to protect our rights or seek compensation for any losses we incur, always in accordance with applicable law.
Without limiting the foregoing, GraphPrep reserves the right to: (a) remove or refuse to process any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Service or the public, or could create liability for GraphPrep; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to and cooperation with law enforcement and/or other applicable legal authorities, for any illegal or unauthorized use of the Service or if GraphPrep otherwise believes that criminal activity has occurred; and/or (e) terminate or suspend your access to all or part of the Service for any or no reason, including without limitation, any violation of this Agreement.
The Service uses AI Services and may contain links to third-party websites and services (collectively, "Third-Party Services"). Such Third-Party Services are not under the control of GraphPrep. GraphPrep is not responsible for any Third-Party Services. When you use a Third-Party Service, you become subject to the terms and conditions (including privacy policies) of that Third-Party Service. GraphPrep does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services before proceeding with any transaction with any third party.
GraphPrep uses Stripe, Inc. and its affiliates ("Stripe") as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services). If you make a purchase on the Service, you will be required to provide your payment details and any additional information required to complete your order directly to Stripe. You agree to be bound by Stripe's Privacy Policy (currently accessible at https://stripe.com/us/privacy) and Terms of Service (currently accessible at https://stripe.com/us/terms), and hereby consent and authorize GraphPrep and Stripe to share any information and payment instructions you provide with one or more third-party service providers to the minimum extent required to complete your transactions. Online payment transactions may be subject to validation checks by Stripe and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. Your card issuer may charge you an online handling fee or processing fee, for which we are not responsible.
You shall pay all fees or charges ("Fees") to your Account in accordance with the fees, charges, and billing terms in effect at the time a Fee is due and payable. By providing GraphPrep and/or Stripe with your payment information, you agree that GraphPrep and/or Stripe is authorized to immediately invoice your Account for all Fees due and payable to GraphPrep hereunder and that no additional notice or consent is required. You shall immediately notify GraphPrep of any change in your payment information to maintain its completeness and accuracy. GraphPrep reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to GraphPrep and/or Stripe or our inability to collect payment constitutes your material breach of this Agreement.
ALL FEES PAID TO GRAPHPREP ARE NON-REFUNDABLE. THIS INCLUDES, WITHOUT LIMITATION, ANY UNUSED PORTION OF A SUBSCRIPTION PERIOD FOLLOWING CANCELLATION, ANY FEES PAID FOR FEATURES YOU CHOOSE NOT TO USE, AND ANY FEES PAID PRIOR TO A SUSPENSION OR TERMINATION OF YOUR ACCOUNT FOR VIOLATION OF THIS AGREEMENT. BY COMPLETING A PURCHASE, YOU ACKNOWLEDGE AND AGREE TO THIS NO-REFUND POLICY. THIS SECTION DOES NOT LIMIT ANY NON-WAIVABLE RIGHTS YOU MAY HAVE UNDER APPLICABLE LAW.
If you purchase access to certain features and functionality of the Service on a time-limited basis (a "Subscription"), the Fee for such Subscription ("Service Subscription Fee") will be billed at the start of the Subscription ("Subscription Service Commencement Date") and at regular intervals in accordance with your elections at the time of purchase. GraphPrep reserves the right to change the timing of our billing. GraphPrep reserves the right to change the Subscription pricing at any time in accordance with Section 16.5 (Agreement Updates). If changes to the Subscription price occur that impact your Subscription, GraphPrep will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your Account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 8.3(b) below. GraphPrep is not obligated to provide the Service to you until GraphPrep accepts your order by a confirmatory email or other appropriate means of communication.
(a) Automatic Renewal. If you elect to purchase a Subscription, your Subscription will continue and automatically renew at GraphPrep's then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews (i.e., monthly, annually, etc.) will be designated at the time you sign up for the Subscription. By subscribing, you authorize GraphPrep to charge the payment method designated in your Account now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if GraphPrep does not receive payment, (i) you shall pay all amounts due on your Account upon demand and/or (ii) you agree that GraphPrep may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received.
(b) Cancelling Subscriptions. You may cancel your Subscription at any time by logging into your Account and following the cancellation instructions, or by contacting GraphPrep at support@graphprep.com.
(c) Effect of Cancellation. If you cancel your Subscription, you may use your Subscription until the end of your then-current Subscription term; your Subscription will not be renewed after your then-current term expires. You will not be eligible for a refund of any portion of the Service Subscription Fee paid for the then-current Subscription period or any prior period.
The Fees do not include any Sales Tax (defined below) that may be due in connection with the Service provided under this Agreement. If GraphPrep determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, GraphPrep shall collect such Sales Tax in addition to the Fees. If any services, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to GraphPrep, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority. For purposes of this section, "Sales Tax" means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax.
GraphPrep may offer access to certain features and functionality of the Service for a fixed period of time in exchange for a single, non-recurring payment (a "Pass"). The Fee for a Pass ("Pass Fee") is charged in full at the time of purchase. Unlike a Subscription, a Pass does not automatically renew. At the end of the Pass period, your access to the features and functionality associated with the Pass will automatically end, and your Account will revert to the free tier of the Service (if available). GraphPrep is not obligated to provide notice in advance of a Pass's expiration, although GraphPrep may do so as a courtesy.
(a) No Refunds for Passes. Consistent with Section 8.2, all Pass Fees are non-refundable. This includes, without limitation, any unused portion of the Pass period, whether or not you used the Service during the Pass period. By purchasing a Pass, you acknowledge and agree to this no-refund policy.
(b) Ending a Pass Early. You may stop using the Service at any time during a Pass period. Doing so will not entitle you to a refund of any portion of the Pass Fee, and the Pass will continue to count down until its scheduled expiration regardless of usage.
(c) Purchasing Additional Passes or Subscriptions. At any time before or after a Pass expires, you may purchase another Pass or subscribe to a Subscription. Passes and Subscriptions are separate products, and the terms of one do not affect the terms of the other.
You shall indemnify and hold GraphPrep, Kestela LLC, and their parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a "GraphPrep Party" and collectively, the "GraphPrep Parties") harmless from any losses, costs, liabilities, and expenses (including reasonable attorneys' fees) relating to or arising out of any and all of the following: (i) Your Content, including any use of the Output by you; (ii) your use of, or inability to use, the Service; (iii) your violation of this Agreement; (iv) your violation of any rights of another party, including any user; or (v) your violation of any applicable laws, rules, or regulations. GraphPrep reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with GraphPrep in asserting any available defenses. This provision does not require you to indemnify any of the GraphPrep Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation, or concealment, or suppression or omission of any material fact in connection with the Service provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement, and/or your access to the Service.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. THE GRAPHPREP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE OR YOUR CONTENT.
THE GRAPHPREP PARTIES MAKE NO WARRANTY, REPRESENTATION, OR CONDITION THAT: (1) THE SERVICE OR ANY OUTPUT WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (3) THE OUTPUT, ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE.
Any Content downloaded from or otherwise accessed through the Service is accessed at your own risk, and you are solely responsible for any damage to your property, including, but not limited to, your computer system and/or any device you use to access the Service, or any other loss that results from accessing such Content.
From time to time, GraphPrep may offer new "beta" features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at GraphPrep's sole discretion. The provisions of this section apply with full force to such features or tools.
GRAPHPREP MAKES NO GUARANTEE WITH RESPECT TO ANY OUTCOMES REGARDING SAT, ACT, OR OTHER STANDARDIZED TEST SCORES, CLASSROOM GRADES, OR ACADEMIC PERFORMANCE. THE USE OF THE SERVICE DOES NOT GUARANTEE ANY SCORE IMPROVEMENT OR PARTICULAR OUTCOME ON ANY EXAM OR ASSESSMENT. GRAPHPREP IS NOT AFFILIATED WITH, ENDORSED BY, OR SPONSORED BY THE COLLEGE BOARD, ACT, INC., OR ANY OTHER TESTING OR EDUCATIONAL ORGANIZATION. GRAPHPREP IS NOT INVOLVED IN ANY GRADING OR SCORING PROCESS AND IS NOT RESPONSIBLE FOR ANY DECISIONS MADE BY THIRD PARTIES, INCLUDING TESTING ORGANIZATIONS, SCHOOLS, OR OTHER EDUCATIONAL INSTITUTIONS. YOU USE GRAPHPREP AT YOUR OWN RISK AND ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICE COMPLIES WITH ALL APPLICABLE TESTING RULES, ACADEMIC INTEGRITY POLICIES, AND INSTITUTIONAL REQUIREMENTS. THE SERVICE IS A STUDY AID INTENDED FOR PRACTICE AND LEARNING ONLY AND MUST NOT BE USED DURING AN ACTUAL TESTING SESSION OR IN ANY MANNER PROHIBITED BY A TESTING ORGANIZATION OR EDUCATIONAL INSTITUTION.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICE. YOU ACKNOWLEDGE AND AGREE THAT THE GRAPHPREP PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE GRAPHPREP PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND ANY THIRD-PARTY PROVIDERS OF AI SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. GRAPHPREP MAKES NO WARRANTY THAT THE SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE GRAPHPREP PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT ANY GRAPHPREP PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION, OR SERVICE PURCHASED OR OBTAINED, OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A GRAPHPREP PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GRAPHPREP PARTY'S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A GRAPHPREP PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE GRAPHPREP PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT PAID TO GRAPHPREP BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (ii) $100; OR (iii) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A GRAPHPREP PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A GRAPHPREP PARTY'S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A GRAPHPREP PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.
GRAPHPREP ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GRAPHPREP AND YOU.
GraphPrep respects the intellectual property rights of others and expects users of the Service to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, GraphPrep has registered a designated agent with the U.S. Copyright Office and will respond expeditiously to claims of copyright infringement that are reported to GraphPrep's designated copyright agent identified below.
GraphPrep has adopted and reasonably implements a policy of terminating, in appropriate circumstances and at GraphPrep's sole discretion, the accounts of users who are deemed to be repeat infringers. GraphPrep may also, at its sole discretion, limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any material on or accessible through the Service infringes a copyright that you own or control, you may submit a notification of alleged infringement to GraphPrep's designated agent. Pursuant to 17 U.S.C. § 512(c)(3), your written notification must include substantially the following:
Notifications that do not substantially comply with all of the foregoing requirements may not be effective and may be disregarded.
GraphPrep's designated copyright agent for receipt of notifications of alleged infringement is:
Brian Giragosian, DMCA Agent
Kestela LLC
3446 Vernon Blvd, Apt W406
Astoria, NY 11106
Phone: (516) 738-8081
Email: dmca@graphprep.com
U.S. Copyright Office Registration Number: DMCA-1072765
If you believe that material you posted on the Service was removed or disabled by mistake or misidentification, you may submit a counter-notification to GraphPrep's designated agent at the contact information above. Pursuant to 17 U.S.C. § 512(g)(3), your written counter-notification must include substantially the following:
Upon receipt of a valid counter-notification, GraphPrep will promptly provide the person who provided the original DMCA notification with a copy of the counter-notification and inform that person that GraphPrep will replace the removed material or cease disabling access to it within ten (10) to fourteen (14) business days, unless GraphPrep's designated agent first receives notice from the person who submitted the original DMCA notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the Service.
Please be aware that under 17 U.S.C. § 512(f), any person who knowingly materially misrepresents (i) that material or activity on the Service is infringing, or (ii) that material or activity was removed or disabled by mistake or misidentification, may be subject to liability for damages, including costs and attorneys' fees, incurred by GraphPrep or by the alleged infringer or copyright owner as the result of GraphPrep relying upon such misrepresentation in removing or replacing material or in disabling or restoring access to it.
If you believe that any material on or accessible through the Service infringes a trademark or other intellectual property right (other than copyright) that you own or control, please contact GraphPrep at support@graphprep.com with a description of the alleged infringement, identification of the material claimed to be infringing, your contact information, and a statement of your good faith belief that the use is not authorized. GraphPrep will review and respond to such claims in its reasonable discretion.
The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above), and continues in full force and effect while you use the Service, unless terminated earlier in accordance with this Agreement.
If you have materially breached any provision of this Agreement, or if GraphPrep is required to do so by law (e.g., where the provision of the Service is, or becomes, unlawful), GraphPrep has the right to, immediately and without notice, suspend or terminate any Service provided to you, with no obligation to refund any Fees paid. GraphPrep reserves the right to terminate this Agreement or your access to the Service at any time without cause upon notice to you. In the event GraphPrep terminates this Agreement without cause, GraphPrep will refund any pre-paid Fees for the unused portion of the then-current Subscription period. In all other cases, all Fees remain non-refundable. You agree that all terminations for cause are made in GraphPrep's sole discretion and that GraphPrep shall not be liable to you or any third party for any termination of your Account.
You may terminate this Agreement at any time by closing your Account. To close your Account, send notice to support@graphprep.com. Closing your Account is distinct from cancelling a Subscription (Section 8.3(b)) and has different consequences, as described below.
(a) Effect of closing your Account. Closing your Account terminates your access to the Service immediately upon GraphPrep's verification and processing of your request. This applies regardless of whether you have an active Subscription, an active Pass, or both. Closing your Account does not entitle you to a refund of any Subscription Service Fee, Pass Fee, or other amount paid, including any unused portion of the then-current Subscription period or the then-current Pass period.
(b) Cancellation as an alternative. If you wish to stop being billed for a Subscription but retain access to the Service through the end of your then-current Subscription period, you should cancel your Subscription as described in Section 8.3(b) rather than close your Account. Cancellation stops future Subscription renewals but preserves your Account and your access until the Subscription period expires.
(c) No refunds. Consistent with Section 8.2 and Section 8.5, all Fees paid to GraphPrep are non-refundable. Closing your Account does not create any new right to a refund.
Upon termination of the Service or the applicable feature or functionality thereof, your right to use the Service or the applicable feature or functionality thereof will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use of or access to the Service. GraphPrep will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive will survive termination of the Service, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
If this Agreement is terminated for cause by GraphPrep or if your Account or ability to access the Service is discontinued by GraphPrep due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Service through use of a different member name or otherwise.
The Service may be accessed from countries around the world and may contain references to services and Content that are not available in your country. These references do not imply that GraphPrep intends to announce such service or Content in your country. The Service is controlled and offered by GraphPrep from its facilities in the United States of America. GraphPrep makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other countries do so at their own volition and are responsible for compliance with local law.
Please read this section (the "Arbitration Agreement") carefully. It is part of your contract with GraphPrep and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Subject to the terms of this Arbitration Agreement, you and GraphPrep agree that any dispute, claim, or disagreement arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service, or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a "Dispute") will be resolved by binding arbitration, rather than in court, except that: (i) you and GraphPrep may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or GraphPrep may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, "Dispute" will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
There might be instances when a Dispute arises between you and GraphPrep. If that occurs, GraphPrep is committed to working with you to reach a reasonable resolution. You and GraphPrep agree that good faith informal efforts to resolve Disputes can result in a prompt, low-cost, and mutually beneficial outcome ("Informal Dispute Resolution"). You and GraphPrep therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement ("Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference ("Notice"), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to GraphPrep that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to support@graphprep.com. The Notice must include: (1) your name, telephone number, mailing address, e-mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address, and e-mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party's Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
YOU AND GRAPHPREP HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and GraphPrep are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
YOU AND GRAPHPREP AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 15.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 15.9. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and GraphPrep agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or GraphPrep from participating in a class-wide settlement of claims.
This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and GraphPrep agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association ("AAA"), in accordance with the Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the "Request"). The Request must include: (1) the name, telephone number, mailing address, e-mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel's name, telephone number, mailing address, and email address. Such counsel must also sign the Request.
Unless you and GraphPrep otherwise agree, or the Batch Arbitration process discussed in Section 15.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and GraphPrep agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties' attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of New York and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 15.9 is triggered, the AAA will appoint the arbitrator for each batch.
The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 15.4, including any claim that all or part of Section 15.4 is unenforceable, illegal, void, or voidable, or that such Section 15.4 has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 15.9, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 15.9. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
The parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or GraphPrep need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys' fees and costs.
To increase the efficiency of administration and resolution of arbitrations, you and GraphPrep agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against GraphPrep by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award ("Batch Arbitration").
All parties agree that Requests are of a "substantially similar nature" if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process ("Administrative Arbitrator"). The Administrative Arbitrator's fees shall be paid by GraphPrep.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective, and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: support@graphprep.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Except as provided in Section 15.4, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with GraphPrep as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Notwithstanding any provision in this Agreement to the contrary, we agree that if GraphPrep makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change becoming effective by writing to GraphPrep at support@graphprep.com, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration.
The communications between you and GraphPrep may take place via electronic means, whether you visit the Service or send GraphPrep emails, or whether GraphPrep posts notices on the Service or communicates with you via email. For contractual purposes, you (i) consent to receive communications from GraphPrep in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that GraphPrep electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. § 7001 et seq. ("E-Sign").
The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without GraphPrep's prior written consent. GraphPrep may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
GraphPrep shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
If you have any questions, complaints, or claims with respect to the Service, please contact us at: support@graphprep.com. We will do our best to address your concerns.
When changes are made, GraphPrep will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the "Last Updated" date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. GraphPrep may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and GraphPrep agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in the State of New York.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
Where GraphPrep requires that you provide an email address, you are responsible for providing GraphPrep with a valid and current email address. In the event that the email address you provide to GraphPrep is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, GraphPrep's dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to GraphPrep by email at support@graphprep.com. Such notice shall be deemed given when received by GraphPrep via email.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.
You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws. In particular, but without limitation, the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using the Service, you represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.