End User License Agreement And Terms Of Use

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This End User License Agreement and Terms of Use (“License”) is a contract between you, the individual completing the order for, or installation of, or access to, or starting the use of the services, products, materials comprising the “MDS Products” (defined below) and MDS CPA Review (“MDS”) and governs Licensee’s use of the MDS products, materials and services. Licensee’s acceptance of the terms and conditions set forth herein is a material condition to the license granted hereunder.

Definitions:

“MDS Products” means all MDS learning products and services made available to Licensee including, without limitation: Software, audio tools, password protected access to MDS’s website or device applications, live classes or any workshops, boot camps, streaming video lectures, individual tutorial classes or any combination thereof, and any related information, including but not limited to all content, site map, dashboard presentation, analytics, learning system, instruction, simulated examinations, grading and feedback (together with any updates to, or new releases of, the foregoing that are made available to Licensee by MDS) licensed by MDS to Licensee pursuant to this License.

“MDS” and “MDS CPA Review” means MDS Operations, LLC, an Ohio limited liability company, d/b/a MDS CPA Review.

“Software” means the professional examination preparation software products, any third party software, online or html-based functionality, mobile device application software and functionality, updates or upgrades licensed by MDS to Licensee pursuant to this License.

THIS LICENSE IS A LEGAL AGREEMENT BETWEEN LICENSEE AND MDS. LICENSEE ACKNOWLEDGES THAT MDS WOULD NOT HAVE AGREED TO PROVIDE THE MDS PRODUCTS FOR USE BY LICENSEE HEREUNDER WITHOUT LICENSEE’S AGREEMENT TO BE BOUND BY THE TERMS OF THIS LICENSE.

THIS LICENSE CONTAINS LIMITATIONS OF MDS’S LIABILITY AND DISCLAIMERS OF WARRANTIES (SEE SECTIONS 7 AND 8 BELOW). THESE PROVISIONS ARE AN ESSENTIAL PART OF MDS’S AGREEMENT TO PROVIDE THE MDS PRODUCTS TO LICENSEE HEREUNDER.

LICENSEE ACKNOWLEDGES THAT LICENSEE IS ELECTRONICALLY SIGNING THIS LICENSE AND THAT SUCH ELECTRONIC SIGNATURE HAS THE SAME FORCE AND EFFECT AS A HANDWRITTEN SIGNATURE. IF LICENSEE DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS LICENSE, LICENSEE SHOULD NOT CLICK THE ACCEPTANCE BUTTON OR PROCEED WITH REGISTRATION TO USE THE MDS PRODUCTS. LICENSEE CONSENTS TO HAVING THIS LICENSE PROVIDED TO LICENSEE IN ELECTRONIC FORM. LICENSEE’S USE OF THE MDS PRODUCTS AFTER COMPLETION OF THE ENROLLMENT PROCESS CONSTITUTES LICENSEE’S CONTINUING AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE.

LICENSEE ACKNOWLEDGES THAT, UPON SUCCESSFUL COMPLETION OF LICENSEE’S ENROLLMENT FOR USE OF THE MDS PRODUCTS (INCLUDING PAYMENT OF ANY APPLICABLE SUBSCRIPTION FEES), THE MDS PRODUCTS WILL BE MADE AVAILABLE FOR LICENSEE’S USE, AND LICENSEE DOES NOT HAVE A RIGHT TO CANCEL OR RECEIVE ANY REFUND UNLESS OTHERWISE SPECIFICALLY AGREED BY MDS IN WRITING OR EXPRESSLY REQUIRED BY APPLICABLE LAW.

1 LICENSE:

THE MDS PRODUCTS ARE LICENSED, NOT SOLD. THE INTENDED USE OF THE MDS PRODUCTS IS PREPARATION FOR SUCCESSFUL COMPLETION OF ONE OR MORE PARTS OF THE APPLICABLE PROFESSIONAL LICENSURE EXAMINATION (THE “INTENDED USE”). LICENSEE MAY NOT USE THE MDS PRODUCTS FOR ANY PURPOSE OTHER THAN THE INTENDED USE. IF LICENSEE ACCEPTS THIS LICENSE, AND FOR AS LONG AS LICENSEE COMPLIES WITH THE TERMS AND CONDITIONS HEREOF DURING THE TERM SET FORTH IN SECTION 6 OF THIS LICENSE, MDS GRANTS LICENSEE A NONEXCLUSIVE AND NONTRANSFERABLE LICENSE TO USE THE MDS PRODUCTS AS AN INDIVIDUAL USER, SOLELY FOR THE INTENDED USE, SUBJECT TO THE LIMITATIONS AND RESTRICTIONS SET FORTH HEREIN.

2 REGISTRATION AND ACCOUNT SECURITY:

IN ORDER TO USE THE MDS PRODUCTS, LICENSEE MUST REGISTER AN ACCOUNT WITH MDS. LICENSEE REPRESENTS THAT LICENSEE HAS PROVIDED, AND WILL PROVIDE, CURRENT, ACCURATE AND COMPLETE INFORMATION IN ALL ACCOUNT-RELATED REGISTRATION MATERIALS. LICENSEE AGREES TO MAINTAIN THE USER NAME, PASSWORD AND OTHER LOG-IN INFORMATION RELATING TO LICENSEE’S ACCESS TO THE MDS PRODUCTS AND LICENSEE’S ACCOUNT. LICENSEE AGREES TO PROMPTLY PROVIDE MDS WITH NOTICE OF ANY INFORMATION NECESSARY TO KEEP LICENSEE’S ACCOUNT INFORMATION ACCURATE, CURRENT AND COMPLETE. ANY PERSON WITH THE USER NAME, PASSWORD OR OTHER LOG-IN INFORMATION RELATING TO LICENSEE’S ACCOUNT MAY BE ABLE TO ACCESS LICENSEE’S DATA. LICENSEE ASSUMES ALL RISKS OF UNAUTHORIZED ACCESS OF LICENSEE’S ACCOUNT BASED ON SHARING OR LOSS OF SUCH USER NAME, PASSWORD AND LOG-IN INFORMATION.

3 COLLECTION OF DATA; PRIVACY:

LICENSEE ACKNOWLEDGES THAT THE FUNCTIONALITY AND ANALYTICS COMPRISING CERTAIN PORTIONS OF THE MDS PRODUCTS REQUIRE COLLECTION AND ANALYSIS OF DATA BY MDS CONCERNING LICENSEE’S SUBJECT MATTER KNOWLEDGE, PRACTICE EXAMINATION RESPONSES, TIME OF COMPLETION, CORRECTNESS, INCORRECTNESS, PATTERNS, METHODOLOGIES AND OTHER INFORMATION SUBMITTED BY LICENSEE OR RELATING TO THE INTENDED USE OF THE MDS PRODUCTS BY LICENSEE. LICENSEE GRANTS MDS AN EXCLUSIVE RIGHT DURING THE TERM OF THIS LICENSE TO COLLECT, ANALYZE AND INCORPORATE SUCH DATA, SOLELY IN CONNECTION WITH DELIVERY OF THE MDS PRODUCTS TO LICENSEE.

MDS also reserves the right to collect and analyze data relating to Licensee’s use of the MDS Products to improve the MDS Products, for marketing research, to make promotional offers from MDS and to access Licensee’s compliance with the terms and conditions of this License.

MDS collects personally identifying information pertaining to Licensee when Licensee registers for use of the MDS Products. The processing of such personally identifying information, including collection, use, transfer and disclosure, is described in the MDS Privacy Policy (www.mdscpareview.com/privacy-policy.html), as same may be amended from time to time.

4. USE AND LIMITATIONS ON USE:

LICENSEE SHALL ONLY USE THE MDS PRODUCTS FOR THE INTENDED USE. UPON COMPLETION OF THE REGISTRATION PROCESS, THE MDS PRODUCTS WILL BE CUSTOMIZED FOR LICENSEE’S USE, AND LICENSEE’S LICENSE HEREUNDER IS INTENDED SOLELY FOR USE OF THE MDS PRODUCTS BY LICENSEE AND NO OTHER PERSONS. LICENSEE SHALL NOT PERMIT OTHERS TO USE THE MDS PRODUCTS USING LICENSEE’S LOG-IN CREDENTIALS.

Except as, and only to the extent (i) expressly permitted by, applicable law, or (ii) as expressly authorized in writing by MDS: Licensee agrees not to, will not permit others to, directly or indirectly, (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the Software, (b) copy, modify, translate, alter, change or collect information that can be used to create derivative works from all or any part of the MDS Products, (c) download, copy, collect information that could be used to copy all or any part of the MDS Products, or access or use all or any part of the MDS Products for any purpose other than the Intended Purpose, (d) rent, lease, sublicense, distribute, sell, transfer, copy or modify the MDS Products or any of Licensee’s rights under this License; or (f) use the MDS Products after expiration, termination or cancellation of this License.

5. OWNERSHIP OF INTELLECTUTAL PROPERTY:

LICENSEE AGREES THAT THE MDS PRODUCTS, INCLUDING WITHOUT LIMITATION THE CONTENTS, TEXT, GRAPHICS, USER INTERFACE, ANIMATION, AUDIO CLIPS, VIDEO CLIPS, EDITORIAL CONTENT, SCRIPTS, SOFTWARE, APPLETS, MUSIC, DISPLAY LAYOUTS, SITE MAPS, METHODS OF DATA COLLECTION, ANALYSIS, ANALYTICS, USER GUIDES AND DOCUMENTATION, THE TRADEMARK MDS CPA REVIEW, THE URL’S, AND OTHER MARKS RELATED TO THE MDS PRODUCTS, AND THE TRADE DRESS, AND THE LOOK AND FEEL, IN EACH CASE COMPRISING OR RELATING TO THE MDS PRODUCTS (COLLECTIVELY, “MDS INTELLECTUAL PROPERTY”), IS OWNED BY MDS AND/OR ITS LICENSORS, AND THAT THE MDS INTELLECTUAL PROPERTY IS COVERED BY VARIOUS STATE AND FEDERAL PROTECTIONS, INCLUDING WITHOUT LIMITATION COPYRIGHT, TRADEMARK, AND TRADE SECRECY LAW. MDS RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND WITHOUT INCURRING ANY LIABILITY TO LICENSEE, TO UPDATE, IMPROVE, REPLACE, MODIFY OR ALTER THE SPECIFICATIONS FOR AND FUNCTIONALITY OF ALL OR ANY PART OF THE MDS PRODUCTS FROM TIME TO TIME, INCLUDING DURING THE TERM OF THIS LICENSE.

6. TERM AND TERMINATION:

LICENSEE IS REQUIRED TO ENTER THE DATE OF THE APPLICABLE PROFESSIONAL LICENSING EXAMINATION (“EXAMINATION DATE”) IN CONNECTION WITH REGISTRATION FOR USE OF THE MDS PRODUCTS. THE LICENSE GRANTED TO LICENSEE HEREIN WILL TERMINATE AUTOMATICALLY (I) ON THE EXAMINATION DATE, OR (II) IN THE EVENT LICENSEE VIOLATES ANY PROVISION OF THIS LICENSE. THE MDS PRODUCTS ARE INTENDED FOR USE BY LICENSEE IN PREPARATION FOR ONE OR MORE PARTS OF ONE PROFESSIONAL LICENSING EXAMINATION. LICENSEE CANNOT USE THE MDS PRODUCTS TO PREPARE FOR A PROFESSIONAL LICENSING EXAMINATION WHICH OCCURS AFTER THE EXAMINATION DATE WITHOUT WRITTEN CONSENT FROM MDS. ALL SUBSEQUENT PROFESSIONAL LICENSING EXAMINATION PREPARATION ACTIVITIES OF LICENSEE REQUIRE LICENSEE TO RE-SUBSCRIBE FOR THE MDS PRODUCTS AND PAY THE ASSOCIATED REGISTRATION FEE TO OBTAIN A NEW LICENSE TO USE THE MDS PRODUCTS FOR SUCH ADDITIONAL PROFESSIONAL EXAMINATION. UPON ACCEPTING THIS LICENSE, LICENSEE AUTHORIZES MDS TO IMMEDIATELY TERMINATE LICENSEE’S RIGHTS, WITHOUT NOTICE, UNDER THIS LICENSE, INCLUDING ACCESS TO THE MDS PRODUCTS, IF LICENSEE FAILS TO COMPLY WITH THE TERMS OF THIS LICENSE. UPON RECEIPT OF NOTICE OF TERMINATION OF THIS LICENSE, LICENSEE MUST IMMEDIATELY CEASE ALL USE OF THE MDS PRODUCTS. THE PROVISIONS OF SECTIONS 4, 5, 7, 8, 9, 10, 11, AND 12 HEREOF SHALL SURVIVE THE TERMINATION OF THIS LICENSE FOR ANY REASON, BUT THIS SENTENCE SHALL NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE MDS PRODUCTS AFTER TERMINATION OF THIS LICENSE.

7. DISCLAIMER OF WARRANTIES:

THE MDS PRODUCTS ARE PROVIDED TO LICENSEE “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS,” AND THE ENTIRE RISK AS TO THE SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFECT OF SUCH MDS PRODUCTS (IF ANY) SHALL BE WITH LICENSEE. MDS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR THAT LICENSEE’S USE OF THE MDS PRODUCTS WILL BE UNINTERRUPTED, VIRUS-FREE, OR EEROR-FREE.

8. LIMITATIONS OF LIABILITY:

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL MDS OR ANY OTHER PERSON OR ENTITY BY LIABLE TO LICENSEE FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, INCLUDING ANY LOSSES RELATING TO LICENSEE OR LICENSEE’S BUSINESS OR PRACTICE ACTIVITIES, SUCH AS LOST DATA, LOST PROFITS, OR BUSINESS INTERRUPTION, EVEN IF MDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY CLAIM BY ANY THIRD PARTY. IN NO EVENT SHALL MDS’S TOTAL LIABILITY FOR ALL DAMAGES (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE OR OTHERWISE) EXCEED THE PURCHASE PRICE OF THE MDS PRODUCTS ACTUALLY PAID BY LICENSEE.

9. NO RIGHT TO REFUND:

IF LICENSEE DOES NOT PASS ONE OR MORE PARTS OF THE PROFESSIONAL LICENSURE EXAMINATION COMPRISING THE INTENDED USE, LICENSEE DOES NOT HAVE A RIGHT OF REFUND, NOR DOES LICENSEE HAVE A RIGHT TO RECEIVE ANY FREE OR DISCOUNTED REPEAT OR RE-ENROLLMENT MDS PRODUCTS, COURSE MATERIALS, PRACTICE EXAMINATIONS, ACCESS TO STREAMING AUDIO OR VIDEO MATERIALS, IN-PERSON CLASSES, GRADING, TUTORING, REPEAT OPPORTUNITIES OR ANY OTHER REMEDIES.

10. CREDIT CARD PAYMENT AUTHORIZATION:

BY PROVIDING CREDIT CARD OR OTHER ELECTRONIC PAYMENT AUTHORIZATION TO MDS, LICENSEE EXPRESSLY AUTHORIZES MDS TO USE SUCH CREDIT CARD OR OTHER ELECTRONIC PAYMENT AUTHORIZATION FOR PAYMENT OF THE SUBSCRIPTION / LICENSE FEE ASSOCIATED WITH LICENSEE’S USE OF THE MDS PRODUCTS.

11. GOVERNING LAW AND FORUM:

THIS LICENSE WILL BE GOVERNED IN ALL RESPECTS BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, USA, WITHOUT REFERENCE TO ITS PRINCIPLES RELATING TO CONFLICTS OF LAW. MDS AND LICENSEE AGREE THAT ANY ACTION ARISING OUT OF OR RELATING TO THIS LICENSE MUST BE ASSERTED EXCLUSIVELY IN A STATE OR FEDERAL COURT SITUATED IN FRANKLIN COUNTY, OHIO. MDS AND LICENSEE CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS SEATED IN FRANKLIN COUNTY, OHIO AND ACKNOWLEDGE THAT VENUE IS PROPER IN SUCH COURTS. MDS AND LICENSEE WAIVE ANY OBJECTION THEY HAVE OR MAY HAVE WITH RESPECT TO THE FOREGOING.

12. NOTICES:

MDS MAY SEND NOTICES TO LICENSEE WITH RESPECT TO THE MDS PRODUCTS BY: (A) SENDING AN E-MAIL MESSAGE TO LICENSEE’S E-MAIL ADDRESS PROVIDED BY LICENSEE TO MDS IN CONNECTION WITH THE SIGN-UP PROCESS; (B) SENDING LICENSEE A LETTER VIAL POSTAL MAIL VIA LICENSEE’S MAILING ADDRESS PROVIDED TO MDS IN CONNECTION WITH THE SIGN-UP PROCESS, OR (C) (IF THIS LICENSE HAS NOT BEEN TERMINATED) BY POSTING SUCH NOTICES TO LICENSEE’S PROFILE DASHBOARD OR USER INTERFACE.

13. ENTIRE AGREEMENT; WAIVER; SEVERABILITY:

THIS LICENSE CONSTITUTES THE ENTIRE AGREEMENT BETWEEN LICENSEE AND MDS WITH RESPECT TO THE USE OF THE MDS PRODUCTS BY LICENSEE, SUPERSEDING ANY PRIOR AGREEMENTS BETWEEN LICENSEE AND MDS. IF ANY PART OF THIS LICENSE IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, ILLEGAL OR OTHERWISE UNENFORCEABLE, THAT PORTION SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH APPLICABLE LAW TO REFLECT, AS NEARLY AS POSSIBLE, THE ORIGINAL INTENTIONS OF THE PARTIES, AND THE REMAINING PORTIONS SHALL REMAIN IN FULL FORCE AND EFFECT. MDS’S FAILURE TO INSIST UPON STRICT COMPLIANCE WITH ANY TERMS, COVENANTS, OR CONDITIONS OF THIS LICENSE WILL NOT CONSTITUTE A WAIVER OF THAT TERM, COVENANT OR CONDITION OF THIS LICENSE OR ANY OTHER PROVISION HEREOF.

14. FORCE MAJEURE:

NO FAILURE OR OMISSION BY EITHER PARTY TO CARRY OUT OR OBSERVE ANY OF THE TERMS AND CONDITIONS OF THIS LICENSE (OTHER THAN PAYMENT OBLIGATIONS) SHALL GIVE RISE TO ANY CLAIM AGAINST SUCH PARTY OR BE DEEMED A BREACH OF THIS LICENSE IF SUCH FAILURE OR OMISSION ARISES FROM AN ACT OF GOD OR ANY OTHER FORCE MAJEURE, ANY ACT OF ANY GOVERNMENT, OR ANY OTHER CAUSE BEYOND THE REASONABLE CONTROL OF THE AFFECTED PARTY.