Watermelon Express Inc. d/b/a Benchprep
READ THIS END USER LICENSE AGREEMENT ("EULA") CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE COURSE (DEFINED BELOW). BY CLICKING THE “ACCEPT” BUTTON OR THE “NEXT” BUTTON (OR SIMILAR LANGUAGE PROVIDED BY US) OR BY DOWNLOADING, INSTALLING OR USING THE COURSE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS EULA AND ACCEPT ALL OF ITS TERMS, AND YOU ACKNOWLEDGE AND AGREE THAT THIS EULA BINDS YOU AS OF THE DATE OF SUCH ACCCPTANCE ("EFFECTIVE DATE"). THIS IS A LEGAL AGREEMENT BETWEEN WATERMELON EXPRESS, INC. D/B/A Benchprep (“Benchprep”) AND YOU. NO OTHER THIRD PARTY OR ANY PARTY’S SUBSIDIARIES IS A PARTY TO THIS EULA. THIS EULA AND THE Benchprep PRIVACY POLICIES (WHICH ARE ALL AVAILABLE AT https://benchprep.com/privacy-policy, ARE INCORPORATED HEREIN BY REFERENCE, GOVERN YOUR ACCESS TO AND USE OF THE CONTENT AND SOFTWARE (defined below).
If you do not accept this EULA in its entirety, then Benchprep is unwilling to license the Course to you, you may not access or use the Course, and any use of the Course by you will be considered a violation of Intellectual property laws and may subject you to civil and/or criminal penalties.
"Course" as used herein shall mean (i) the course content, including, but not limited to, all education materials, any software (including, but not limited to, mobile applications and desktop programs) provided by Benchprep (or its licensors), the associated source code, object code and media, any accompanying printed materials, including without limitation any user’s manual and any associated on-line or electronic documentation, and the content of any of the foregoing (whether text, graphics or other content)
“You” and “Your” and “you” and “your” as used herein shall mean you as an individual provided that you are at least 18 years of age or otherwise have the requisite capacity to contract under applicable law; or if you are not at least 18 years of age or otherwise do not have the requisite capacity to contract under applicable law, your parent, legal guardian, or other adult responsible for you on your behalf.
1. License: The Course is licensed only, not sold. Subject to your compliance with the EULA, and for the Term (defined below) hereof, Benchprep hereby grants you, and you hereby accept from Benchprep, a limited, personal, revocable, non-exclusive, non-transferable, non-sub-licensable license to install and use the Course for your personal, non-commercial use on a single computer or device owned or controlled by you ("Permitted Purpose"). Benchprep reserves all rights in the Course not expressly granted to you in this EULA. Benchprep may, from time to time, provide you with updates or revisions to the Course, but is not obligated to do so under this EULA. The terms of this EULA shall govern any updates or revisions to the Course provided by Benchprep that are not subject to a separate EULA.
2. Restrictions: You acknowledge and agree that the Course is proprietary and is protected by copyright, patent, trade secret, and other U.S. and international laws. You may not remove, obliterate, or alter any copyright, patent or other proprietary notices used on or in connection with the Course and shall include all such notices on any copies made by you. You may not use the Course (i) on behalf of or in service to other parties other than for the Permitted Purpose, or (ii) in violation of any laws, rules, or regulations. You acknowledge that the Course contains trade secrets. You shall not under any circumstances, nor shall you permit anyone else to, (x) copy or otherwise reproduce, alter, modify, enhance, adapt, translate, or create a derivative work based on the Course, or disassemble, decompile, reverse engineer, or otherwise derive the source code of the Course or attempt to do any of the foregoing, or (y) market, sell, sublicense, disclose, transfer, rent, lease, loan, or distribute the Course or any portion thereof. You agree that modified or enhanced versions of the Course, or derivative works based on the Course, do not constitute works different from the Course, and as such, are subject to the other terms and conditions of this EULA.
3. Ownership: Benchprep or its licensors, owns all right, title and interest in and to the Course, including without limitation all patent, trademark, copyright, trade secret, moral rights, and other intellectual property (collectively, "Intellectual Property") rights and reserves all rights, on behalf of itself and its licensors, not expressly granted hereunder. This EULA does not convey to you an interest in or to the Course, but only a license to use the Course as specified in Section 1 of this EULA.
4. Term; Termination: Depending on your subscription level, the term of your subscription shall be one of the following:
For Benchprep legacy subscribers (licensees of the subject Course prior to September 1, 2012) and for subscribers that purchase lifetime subscription to this particular course: the term shall commence on the Effective Date and shall continue indefinitely without an end date or until terminated as provided herein or by mutual agreement of the parties ("Term"); or
For Benchprep single course subscribers: the term shall commence on the Effective Date and shall continue for up to six months or until terminated, whichever occurs first, as provided herein or by mutual agreement of the parties ("Term"); or
For Benchprep library (Monthly) subscribers: the term shall commence on the Effective Date and shall be for one month and shall automatically renew each subsequent month on the same day of the month as the Effective Date or if there is no corresponding date in a particular month, then on the last day of that month ("Term"); or
For Benchprep library (Yearly) subscribers: the term shall commence on the Effective Date and shall be for one (1) year and shall not automatically renew (“Term”).
For Benchprep subject (monthly) subscribers: the term shall commence on the Effective Date and shall be for one month and shall automatically renew each subsequent month on the same day of the month as the Effective Date or if there is no corresponding date in a particular month, then on the last day of that month ("Term"); or
For Benchprep subject (Yearly) subscribers: the term shall commence on the Effective Date and shall be for one (1) year and shall not automatically renew (“Term”).
Without prejudice to any other rights of Benchprep or its licensors, this EULA shall terminate effective immediately if you (i) violate any of the terms of this EULA; or (ii) assign or attempt to assign this EULA in contravention of the terms hereof. Benchprep may terminate your subscription if it is unable to process or renew your subscription as a result of inaccurate or outdated credit card information.
You may only cancel your subscription to a particular Course within seven (7) days from the Effective Date. For subscriptions with recurring fees, you may also cancel your subscription prior to the next scheduled charge; however, no refund will be granted for any charges processed by Benchprep prior to the date you cancelled your subscription.
In the event of any such termination, you must immediately cease all use, and destroy the original and all copies of the Course and, not later than five (5) business days after such termination takes effect, you shall certify in writing to Benchprep that such destruction has been completed. The provisions of Sections 2-8, 10, 15 and 20 shall survive any termination or expiration of this EULA.
5. Warranty; Disclaimer: Benchprep warrants that for a period of thirty (30) days following your acceptance of the terms of this EULA by clicking on the “Accept” button and your compliance with all other applicable registration requirements, Benchprep shall use commercially reasonable efforts to make the Course available to be downloaded by you, provided that Benchprep will have no responsibility for factors beyond its control that may affect your ability to download the Course, including, without limitation and by way of example only, problems with connectivity caused by your equipment or service providers or related generally to the internet, or lack of availability caused by Benchprep’s licensors, service providers or other third parties.
EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 5, you expressly acknowledge and agree that you assume all the responsibility and risk for your use of the Course and the results and performance thereof and your use of any Third Party Applications. THE COURSE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. BENCHPREP DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BENCHPREP OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN SECTION 5 OF THIS AGREEMENT. BENCHPREP DOES NOT REPRESENT OR WARRANT THAT: (I) THE COURSE WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR FREE OR THAT ANY ERRORS OR COURSE DEFECTS WILL BE CORRECTED; (II) THE OPERATION OF THE COURSE WILL BE UNINTERRUPTED OR SECURE; (III) YOU WILL OBTAIN OR ACHIEVE A PARTICULAR RESULT FROM USE OF THE COURSE; (IV) THE COURSE COMPLIES WITH ANY PARTICULAR LAW OR REGULATION; OR (V) THE ACCURACY, TIMELINESSS, COMPLETENESS OR ADEQUACY OF THE SOFTWARE, ANY THIRD PARTY CONTENT AND ANY DATA ACCESSED THEREFROM. BENCHPREP MAY CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE COURSE OR THE USE OF ALL OR ANY FEATURES OR TECHNOLOGY IN THE COURSE AT ANY TIME WITHOUT PRIOR NOTICE TO YOU.
NO ORAL OR WRITTEN, REPRESENTATION, INFORMATION OR ADVICE GIVEN BY BENCHPREP OR ANY OF ITS REPRESENTATIVES OR ANY OTHER PARTY SHALL INCREASE THE SCOPE OF THE FOREGOING WARRANTY OR CREATE ANY NEW WARRANTIES.
IN THE EVENT OF ANY BREACH OF THE FOREGOING WARRANTY, YOUR SOLE AND EXCLUSIVE REMEDY FROM BENCHPREP WILL BE FOR BENCHPREP TO REFUND FEES, IF ANY, WHICH YOU PAID BENCHPREP FOR ACCESS TO THE COURSE.
IN THE EVENT THAT A MOBILE PHONE, TABLET OR COMPUTING DEVICE FAILS TO CONFORM TO ANY APPLICABLE WARRANTIES THEREFOR IN CONNECTION WITH YOUR USE OF THE COURSE IN ACCORDANCE WITH THE EULA, YOU MAY NOTIFY APPLE, AMAZON OR GOOGLE PLAY MARKETPLACE, AND APPLE, AMAZON, OR GOOGLE PLAY MARKETPLACE WILL REFUND TO YOU THE PURCHASE PRICE, IF ANY, FOR THE COURSE; PROVIDED, HOWEVER, THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) APPLE, AMAZON OR GOOGLE PLAY MARKETPLACE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE COURSE AND (B) ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES, WHICH ARE ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY AND FOR WHICH BENCHPREP EXPRESSLY IS MADE RESPONSIBLE ELSEWHERE IN THE EULA, WILL BE THE SOLE RESPONSIBILITY OF BENCHPREP OR ITS LICENSORS.
6. Limitation of Liability:
THE REMEDY IN SECTIONS 5 AND 6 STATES BENCHPREP'S AND ITS LICENSORS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY DEFECT IN THE OPERATION, RESULTS OR USE OF THE COURSE.
EXCEPT TO THE EXTENT, IF ANY, NOT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT SHALL BENCHPREP, ITS AFFILIATED ENTITIES, ANY OF ITS THIRD PARTY SUPPLIERS (INCLUDING LICENSORS) OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AUTHORIZED AGENTS (COLLECTIVELY, THE “BENCHPREP GROUP”) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST DATA, LOST PROFITS, LOSS OF GOODWILL, LOST REVENUE, SERVICE INTERUPTION, MOBILE DEVICE OR COMPUTER DAMAGE OR SYSTEM FAILURE OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE INSTALLATION, USE OR INABILITY TO USE THE COURSE, UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE) , EVEN IF BENCHPREP OR ITS SUPPLIERS OR LICENSORS HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) IN NO EVENT WILL BENCHPREP’S, AGGREGATE LIABILITY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS EULA EXCEED THE AMOUNT YOU PAID FOR THE COURSE. IF YOUR JURISDICTION DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SUCH AS FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
IN THE EVENT THAT AN APPLE DEVICE OR ANDROID DEVICE FAILS TO CONFORM TO ANY APPLICABLE WARRANTIES THEREFOR IN CONNECTION WITH YOUR USE OF THE COURSE IN ACCORDANCE WITH THE EULA, YOU MAY NOTIFY APPLE OR GOOGLE PLAY MARKETPLACE, AND APPLE OR THE GOOGLE PLAY MARKETPLACE WILL REFUND TO YOU THE PURCHASE PRICE, IF ANY, FOR THE COURSE; PROVIDED, HOWEVER, THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) APPLE OR GOOGLE PLAY MARKETPLACE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE COURSE AND (B) ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES, WHICH ARE ATTRIBUTABLE TO ANY FAILURE TO CONFORM TO ANY WARRANTY AND FOR WHICH BENCHPREP EXPRESSLY IS MADE RESPONSIBLE ELSEWHERE IN THE EULA, WILL BE THE SOLE RESPONSIBILITY OF BENCHPREP OR ITS LICENSORS.
7. Indemnification: You shall indemnify, defend, and hold harmless Benchprep and its licensors and suppliers from and against all claims, demands, suits, actions, or proceedings and all related losses, liabilities, damages, reasonable attorney’s fees, costs, and expenses (including without limitation reasonable attorney fees) arising out of or relating to (i) Your use or operation of the Course; (ii) default in the performance of any of Your duties or obligations, or breach of any of Your covenants or agreements, under this EULA; or (iii) any negligent act or omission or intentional misconduct of or by You or any of your representatives associated with Your use or possession of the Course.
8. Confidentiality: You shall treat as confidential and shall not disclose, reveal or provide access to the Course, data, documents, materials, or other information related to the Course (all the foregoing, collectively, "Benchprep Property"), in each case other than screen shots, provided or disclosed to you in connection with this EULA in any form to any person, and shall not use any Benchprep Property other than for the Permitted Purpose, without the prior written consent of Benchprep. You acknowledge that any actual or threatened breach by you of any term or condition of Sections 2, 3, or 8 hereof will cause Benchprep, and/or its licensors and suppliers irreparable injury and damage for which monetary damages would not be an adequate remedy, and, therefore, Benchprep or such licensor or supplier, as the case may be, shall be entitled to injunctive relief, without the need to post bond or other security, as necessary to enjoin such breach in addition to any other rights or remedies which may be available to Benchprep or such licensor or supplier, as the case may be, hereunder or at law, in equity, or otherwise.
9. Operating Environment: You shall be solely responsible for providing and maintaining at your own expense the operating environment in which the Course will function and be used and the overall effectiveness and efficiency thereof, including, but not limited to, all equipment, hardware, and other devices and all site preparation, installation, integration, testing, and similar activities required for you to use the Course in accordance with the provisions hereof, and Benchprep shall assume no such responsibilities. Once you install the Course, except for Benchprep's warranty obligation set forth in Section 5 hereof or as otherwise expressly set forth herein, neither Benchprep nor its licensors shall have any further liability or responsibility to you with respect to the Course, your use thereof, or any of your data, records, documents, results, or other information or materials used or generated by or on behalf of you or any other party in connection therewith.
10. Governing Law; Venue: This EULA is governed by and shall be construed in accordance with the laws of Illinois without resort to the conflict of laws principles thereof. Should any provision of this EULA be declared void or unenforceable by any court of competent jurisdiction, such provision will be enforced to the maximum extent permissible, and if not possible, severed, and the legality and enforceability of the other provisions of this EULA will not be affected. The sole and exclusive jurisdiction for any legal proceeding arising out of or related to this EULA or the subject matter hereof shall be the appropriate federal or state court located in Cook County, Illinois, and you and your representatives hereby submit to the exclusive jurisdiction of such courts.
12. Modifications and Updates to EULA. Benchprep reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice. If Benchprep materially modifies this EULA it will post the updated EULA on https://benchprep.com/end-user-license-agreement or by other reasonable means now known or hereafter developed. Benchprep will also update the "Last Updated Date" at the end of the page. By continuing to use the Course after Benchprep has posted a modification of this EULA, you agree to be bound by the modified EULA. If the modified EULA is not acceptable to you, your only recourse is to cease using the Course.
13. Representations and Warranties. You agree to comply with all applicable laws, rules and regulations when using the Course. You will not use the Course to infringe anyone's copyrights.
14. No Obligation. Benchprep is not obligated to maintain or support the Course, or to provide you with updates, fixes, or services related thereto. You agree to use the Course at your own risk and that Benchprep shall not have any liability to you with respect to such content.
15. Export Laws. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Course, nor any technical data related thereto, nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. Furthermore, you agree you will not export nor re-export to any US embargoed country. By downloading and using the Course, you further 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.
16. Fees and Refunds: The right to access the Course granted under this EULA is effective only upon payment of the subscription fees. For subscriptions that do not automatically renew at the end of the term, you may choose to manually renew your subscription at the then current full subscription rate for the Course. Benchprep may increase subscription fees for subsequent subscription at any time and for any reason; provided, however, that if you have a recurring subscription, Benchprep will provide you with at least seven (7) days notice of the increased subscription fee.
A recurring subscription fee is a payment in which you authorize Benchprep to directly charge your credit card account on a regular basis. If you have purchased a subscription that automatically renews, you authorize Benchprep to charge your credit card on each monthly or yearly anniversary, as applicable, of the Effective Date.
Fees for Upgrades:
Upgrades of Recurring Subscription: If you upgrade your recurring subscription, any unused portion of the subscription period will be prorated and credited toward your new upgraded subscription fee. In the event of an upgraded subscription, your new Effective Date will be the date you upgraded your subscription.
Upgrades of Non-recurring Subscription: If you upgrade your non-recurring subscription, any unused portion of the subscription will be prorated and credited toward the upgrade charge, however, the end of the Term will not change.
Upgrades for Benchprep legacy subscribers (licensees of the subject Course prior to September 1, 2012) and for subscribers that purchased lifetime subscription to this particular course: This subscription may not be upgraded and any attempt to upgrade your subscription shall be treated as a new and separate subscription.
17. Re-Marketing related to the Google Android Marketplace. Please note, if you visit our site and do not complete a purchase, you may be remarketed to, which means that Google may place a cookie on your browser (either through a first-party Google Analytics cookie or a third-party DoubleClick cookie) and you may see special ads, that include discounts for Benchprep, on other Google Partner sites that you visit for a 30–60 day period or until you clear your cookies, after you visit Benchprep because of these cookies.
You may opt-out of being remarketed to by Benchprep through Google by visiting the Google Ads Preferences Manager. https://www.google.com/settings/ads/onweb/.
18. Discounts, Rebates and Special Offers: Discount codes, rebates and special offers, unless the terms of the discount code, rebate or special offer or with rebates specifically state otherwise, do not and cannot be used for or applied to renewal subscriptions. The charge for all renewal subscriptions, including automatic and manual renewals, will be at the then current full subscription rate.
19. Social Media Option. Benchprep has, or in the future may have through an update, optional features that allow you to make your profile publicly available to other users of Benchprep. If you connect your Benchprep account to this social component, you agree that Benchprep is not responsible for content once it is shared by you. If you use Benchprep’s social component, you must respect other users of Benchprep in your interactions with them. Benchprep reserves the right, in its absolute discretion, to disable your account if it believes that you are improperly or inappropriately using the social component in violation of this EULA, your account may be terminated, without refund, and you may be blocked from accessing the Course. Examples of unacceptable behavior include, but are not limited to:
using offensive, abusive, defamatory, pornographic or obscene language; or harassing or bullying other users; or spamming other users through the inbox, or using automated means to artificially promote content; or using a photo/image on your profile that infringes the copyright of a third party, or is offensive, abusive, defamatory, pornographic or obscene.
20. General. (a) You may not assign or delegate the license granted under this EULA or any of your rights or obligations hereunder, without Benchprep's prior written consent. (b) All notices under this EULA will be deemed given when delivered personally or sent by express courier or by U.S. certified mail, return receipt requested, to (i) Benchprep, at 111 S Wacker Drive, Suite 1200, Chicago, IL 60606; (ii) to you, at the address to which the Course was delivered or such other address for you as determined by Benchprep, or as may otherwise be noticed in writing by either party to the other in accordance with this Section 20. (c) No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of such rights or any other rights unless such waiver is set forth in a writing signed by the waiving party. (d) The section titles in this EULA are provided solely for convenience and have no legal or contractual significance. (e) Except as required by law, the controlling language of this EULA is English. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail. (f) At the time this EULA becomes effective, it shall become the entire agreement and understanding of the parties regarding the subject matter hereof and may not be modified except by a written instrument that expressly amends this EULA and is signed by an authorized representative of each party. No purchase order, invoice or similar document will by its terms amend or supplement the terms and conditions of this EULA, even if accepted or signed by the receiving party. (g) The exercise by Benchprep of any remedies under this EULA will be without prejudice to its other remedies under this EULA, at law, in equity, or otherwise. (h) If any provision of this EULA shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this EULA and shall not affect the validity and enforceability of any remaining provisions. (i) Nothing in this EULA will be construed as creating a joint venture, partnership, employment or agency relationship between you and Benchprep, and you do not have any authority to create any obligation or make any representation on Benchprep's behalf.
Last updated on 10/15/2013