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Terms of Use
1. INTRODUCTION AND ACCEPTANCE
Welcome to AptPrep.com ("Website" or “AptPrep” or “aptprep.com”) AptPrep.com is an interactive online service operated by Esagono, LLC (“Esagono”, "us", "we", or "our").
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE WEBSITE. BY ACCESSING AND/OR USING THE WEBSITE (OTHER THAN TO READ THESE TERMS OF USE FOR THE FIRST TIME) YOU (the “User” or Registered User”) ARE AGREEING TO COMPLY WITH THESE TERMS OF USE. THESE TERMS OF USE REQUIRE YOU TO AGREE TO ARBITRATE DISPUTES RATHER THAN GOING TO COURT, GRANT US CERTAIN RIGHTS AND LICENSES, PROVIDE US CERTAIN INDEMNITIES, WAIVE CERTAIN OF YOUR RIGHTS AND REMEDIES, AND LIMIT OUR LIABILITY AND OBLIGATIONS TO YOU. READ THEM CAREFULLY AND DO NOT USE THE SITE OR PURCHASE OUR PRODUCTS OR SERVICES IF YOU DO NOT AGREE.
2. INTELLECTUAL PROPERTY
The Website and included content (and any derivative works or enhancements of the same) including, but not limited to, report, all text, illustrations, files, images, software, scripts, graphics, photos, sounds, music, videos, information, content, materials, products, services, URLs, technology, documentation, and interactive features (collectively, the "Website Content") and all intellectual property rights to the same are owned by us, our licensors, or both. Additionally, all trademarks, service marks, trade names and trade dress that may appear on the Website are owned by us, our licensors, or both. Except for the limited use rights granted to you in these Terms of Use, you shall not acquire any right, title or interest in the Website or any Website Content. Any rights not expressly granted in these Terms of Use are expressly reserved.
3. WEBSITE USE AND ACCESS
(A) Esagono does not make recommendations for the purchase or sale of any investment. Through its AptPrep Report and other Website Content, Esagono provides a projection of pro-forma results based on assumptions provided by User. THIS ANALYSIS PROVIDES A STARTING POINT FOR USER’S RESEARCH PROCESS, BUT DOES NOT CONSTITUTE A COMPREHENSIVE ANALYSIS OR RECOMMENDATION OF ACTION. For example, this analysis does not take into account unique state or local taxes and laws, and may not take into account current federal taxes and laws. User agrees not to hold Esagono and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies, responsible for any investing decision made as a result of information gleaned from the AptPrep website. Esagono recommends that User always consult a lawyer and certified accountant and a tax professional for review of pro-forma projections prior to any investing decision.
(B) Access to the Website including, without limitation, the Website Content is provided for your information and personal, non-commercial use only. When using the Website, you agree to comply with all applicable federal, state, and local laws including, without limitation copyright law. Except as expressly permitted in these Terms of Use, you may not use, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, publish, transmit, or otherwise exploit Website Content for any purpose whatsoever without obtaining prior written consent from us or, in the case of third-party content, its respective owner. In certain instances, we may permit you to download or print Website Content or both. In such a case, you may download or print (as applicable) one copy of Website Content for your personal, non-commercial use only. You acknowledge that you do not acquire any ownership rights by downloading or printing Website Content.
(C) Furthermore, except as expressly permitted in these Terms of Use, you may not: (i) remove, alter, cover, or distort any copyright, trademark, or other proprietary rights notice on the Website or Website Content; (ii) circumvent, disable or otherwise interfere with security-related features of the Website including, without limitation, any features that prevent or restrict use or copying of any content or enforce limitations on the use of the Website or Website Content; (iii) use an automatic device (such as a robot or spider) or manual process to copy or "scrape" the Website or Website Content for any purpose without the express written permission of Esagono. Notwithstanding the foregoing, Esagono grants public search engine operators permission to use automatic devices (such as robots or spiders) to copy Website Content from the Website for the sole purpose of creating (and only to the extent necessary to create) a searchable index of Website Content that is available to the public. We reserve the right to revoke this permission (generally or specifically) at any time; (iv) collect or harvest any personally identifiable information from the Website including, without limitation, user names, passwords, email addresses; (v) solicit other users to join or become members of any commercial online service or other organization without our prior written approval; (vi) attempt to or interfere with the proper working of the Website or impair, overburden, or disable the same; (vii) decompile, reverse engineer, or disassemble any portion of any the Website; (viii) use network-monitoring software to determine architecture of or extract usage data from the Website; (ix) encourage conduct that violates any local, state or federal law, either civil or criminal, or impersonate another user, person, or entity (e.g., using another person's Membership (as defined in Section 4.) without permission, etc.); (x) violate U.S. export laws, including, without limitation, violations of the Export Administration Act and the Export Administration Regulations administered by the Department of Commerce; or (xi) engage in any conduct that restricts or inhibits any other user from using or enjoying the Website. (xii) You agree to cooperate fully with Esagono to investigate any suspected or actual activity that is in breach of these Terms of Use.
4. USER REGISTRATION
In order to access and to use some or all features of the Website, we may now or in the future permit or required users to become a registered user to the Website. If you are under the age of thirteen, then you are not permitted to register as a user or otherwise submit personal information to Esagono. If you become a registered user, you will provide true, accurate and complete registration information and, if such information changes, you will promptly update the relevant registration information. During registration, you will create a user name and password (a "Membership"), which may permit you access to certain areas of the Website not available to non-registered users. You are responsible for safeguarding and maintaining the confidentiality of your Membership. You are solely responsible for the activity that occurs under your Membership, whether or not you have authorized the activity. You agree to notify us immediately at info@aptprep.com of any breach of security or unauthorized use of your Membership. A Membership to the AptPrep.com website is valid for one individual or party only, unless further specified and approved in written form by Esagono. Membership shared by more than one individual or party may be suspended immediately without notice.
5. NON-COMMERCIAL USE BY MEMBERS OR USERS
The AptPrep.com Services are for the personal use of Members and Users only and may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by AptPrep.com. Illegal and/or unauthorized use of the AptPrep.com Services, including collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the AptPrep.com Website is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed without notice and may result in termination of Membership privileges. Appropriate legal action will be taken for any illegal or unauthorized use of the AptPrep.com Services.
6. WEBSITE CONTENT & THIRD PARTY LINKS
(A) We provide the Website including, without limitation Website Content for educational and promotional purposes only. You may not rely on any information and opinions expressed on any of our Website for any other purpose. In all instances, it is your responsibility to evaluate the accuracy, timeliness, completeness, or usefulness of Website Content. Under no circumstances will we be liable for any loss or damage caused by your reliance on any Website Content.
(B) In many instances, Website Content will include content posted by a third-party or will represent the opinions and judgments of a third-party. We do not endorse, warrant and are not responsible for the accuracy, timeliness, completeness, or reliability of any opinion, advice, or statement made on the Website by anyone other than authorized employees or spokespersons while acting in their official capacities.
(C) If there is a dispute between persons accessing the Website or between persons accessing the Website and any third party, you understand and agree that we are under no obligation to become involved. If there is such a dispute, you hereby release Esagono and its officers, directors, employees, parents, partners, successors, agents, affiliates, subsidiaries, and their related companies from claims, demands, and damages of every kind or nature arising out of, relating to, or in any way connected with such dispute.
(D) The Website may contain links to other websites maintained by third parties. We do not operate or control, in any respect, or necessarily endorse the content found on these third-party websites. When you access these third-party sites, you do so at your own risk and you assume sole responsibility for your use of such third-party links. We are not responsible for any content posted on third-party websites or liable to you for any loss or damage of any sort incurred as a result of your dealings with any third-party or their website.
7. CONDITIONS FOR LINKING TO WEBSITE
We hereby grant you a non-exclusive, limited license, revocable at our discretion, for you to link to the Website home page from any site you own or control that is not commercially competitive with the Website and does not criticize or otherwise injure us, so long as the site where the link resides, and all other locations to which such site links, comply with all applicable laws and do not in any way abuse, defame, stalk, threaten or violate the rights of privacy, publicity, intellectual property or other legal rights of others or, in any way, post, publish, distribute, disseminate or facilitate any inappropriate, infringing, defamatory, profane, indecent, obscene or illegal/unlawful information, topic, name or other material or that violates the spirit of our mission. Such a link is not an endorsement of such other site(s) by us. All of our rights and remedies are expressly reserved.
8. USER CONTENT
(A) We may now or in the future permit users to post, upload, transmit through, or otherwise make available on the Website (collectively, "submit") messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, and/or other materials ("User Content"). Subject to the rights and license you grant herein, you retain all right, title and interest in your User Content. We do not guarantee any confidentiality with respect to User Content even if it is not published on the Website. It is solely your responsibility to monitor and protect any intellectual property rights that you may have in your User Content, and we do not accept any responsibility for the same.
(B) You shall not submit any User Content protected by copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right without the express permission of the owner of the respective right. You are solely liable for any damage resulting from your failure to obtain such permission or from any other harm resulting from User Content that you submit.
(C) You represent, warrant, and covenant that you will not submit any User Content that: (i) violates or infringes in any way upon the rights of others, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, or other intellectual property, personal, contractual, proprietary or other third party right of any person or entity; (ii) impersonates another or is unlawful, threatening, abusive, libelous, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, pornographic, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable; (iii) encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law; (iv) is an advertisement for goods or services or a solicitation of funds; (v) includes personal information such as messages which identify phone numbers, social security numbers, account numbers, addresses, or employer references; (vi) contains a formula, instruction, or advice that could cause harm or injury; (vii) is a chain letter of any kind; or (viii) the licensed use by us hereunder would result in us having any obligation or liability to any party. Moreover, any conduct by a user that in our sole discretion restricts or inhibits any other user from using or enjoying the Website will not be permitted.
(D) By submitting User Content to us, simultaneously with such posting you automatically grant, or warrant that the owner has expressly granted, to us a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, fully sub-licensable, and transferable right and license to use, record, sell, lease, reproduce, distribute, create derivative works based upon (including, without limitation, translations), publicly display, publicly perform, transmit, publish and otherwise exploit the User Content (in whole or in part) as we, in our sole discretion, deem appropriate including, without limitation (i) in connection with our business; and (ii) in connection with the businesses of our successors, parents, subsidiaries, and their related companies. We may exercise this grant in any format, media or technology now known or later developed for the full term of any copyright that may exist in such User Content. Furthermore, you also grant other users permission to access your User Content and to use, record, sell, lease, reproduce, distribute, create derivative works based upon, publicly display, publicly perform, transmit, publish and otherwise exploit your User Content for personal, non-commercial use as permitted by the functionality of the Website and these Terms of Use. The granted rights include the right to configure, host, index, cache, digitize, compress, optimize, modify, edit, adapt, and remove such content and combine same with other materials. Furthermore, we are free to use any ideas, concepts, know-how or techniques contained in any User Content you submit without any remuneration or obligation to you.
(E) By submitting User Content, you also grant us the right, but not the obligation to use your biographical information including, without limitation, your name and geographical location in connection with broadcast, print, online, or other use or publication of your User Content. Notwithstanding the foregoing, you waive any and all claims you may now or later have in any jurisdiction to so-called "moral rights" or rights of "droit moral" with respect to the User Content.
(F) We reserve the right to display advertisements in connection with your User Content and to use your User Content for advertising and promotional purposes. You acknowledge and agree that your User Content may be included on the websites and advertising networks of our distribution partners and third-party service providers (including their downstream users).
(G) We have the right, but not the obligation, to monitor User Content. Please exercise caution and common sense when viewing User Content. We have no obligation to post, maintain or otherwise make use of User Content and do not guarantee distribution of User Content. We may discontinue operation of the Website, or your use of the Website, in either case in whole or in part, in our sole discretion. You have no right to maintain or access your User Content on the Website and we have no obligation to return your User Content or otherwise make it available to you.
(H) The rights granted by you hereunder may not be terminated, revoked or rescinded and are not subject to reversion.
9. COPYRIGHT POLICY
(A) Esagono respects the intellectual property rights of others and expects its users to do the same. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Esagono to terminate at its sole discretion Membership privileges of any User who infringes the copyright rights of others (or other intellectual property rights). Additionally, in appropriate circumstances and in its sole discretion, Esagono may remove or disable access to material on any of its websites or hosted on its systems that may be infringing or the subject of infringing activity.
(B) In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 ("DMCA"), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims infringement (its "Designated Agent"). Esagono designated agent may be reached at: info@aptprep.com. Please reference the copyright policy in your subject line.
(C) If you are a copyright owner (or authorized to act on behalf of the copyright owner) and believe that your work's copyright has been infringed, please report your notice of infringement to us by providing our designated agent with a written notification of claimed infringement that includes substantially the following: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material. (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted. (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. We will investigate notices of copyright infringement and take appropriate actions under the DMCA. Inquiries that do not follow this procedure may not receive a response.
10. MOBILE
The Website may include certain services that may be available via your mobile phone, including without limitation (a) the ability to upload to the Website via your mobile phone (Mobile Uploads), (b) the ability to receive and reply to messages and to send content and messages using text messaging (Mobile Texts), and (c) the ability to access the Website from your mobile phone (Mobile Web) (collectively, the "Mobile Services"). In addition to our Mobile Fee, your carrier's normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. By using the Mobile Services you agree that we may communicate with you regarding the Website and our partners by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services will be communicated to us.
11. FEES
You acknowledge that Esagono reserves the right to charge for (i) accessing the AptPrep.com Members area and (ii) to obtain a complete AptPrep Report, and to change its fees from time to time in its discretion. If you become a registered user, you may terminate your Membership at any time by logging to www.AptPrep.com, click on ‘Cancel Membership’ on the top right hand corner of the website, and click on ‘Cancel my Membership’. If AptPrep.com terminates your Membership because you have breached the Agreement or simply you requested AptPrep.com to terminate your Membership, you shall not be entitled to the refund of any past or unused portion of subscription fees.
12. TERMINATION
We reserve the right in our sole discretion and at any time to terminate or suspend your Membership and/or block your access to the Website for any reason including, without limitation if you have failed to comply with the letter and spirit of these Terms of Use. You agree that Esagono shall not be liable to you or any third party for any termination or suspension of your Membership or for blocking your access to the Website. If you become a registered user, you may terminate your Membership at any time by logging to www.AptPrep.com, click on ‘Cancel Membership’ on the top right hand corner of the website, and click on 'Cancel my Membership'. Any suspension or termination shall not affect your obligations to us under these Terms of Use. The provisions of these Terms of Use which by their nature should survive the suspension or termination of your Membership or these Terms of Use shall survive including, but not limited to the rights and licenses that you have granted hereunder, indemnities, releases, disclaimers, limitations on liability, provisions related to choice of law, dispute resolution, no class action, and no trial by jury.
13. INDEMNIFICATION
You agree to indemnify and hold harmless Esagono and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all claims, liabilities, losses, damages, obligations, costs and expenses (including reasonable attorneys' fees and costs) arising out of, related to, or that may arise in connection with: (a) your access to or use of the Website; (b) User Content provided by you or through use of your Membership; (c) any actual or alleged violation or breach by you of these Terms of Use; (d) any actual or alleged breach of any representation, warranty, or covenant that you have made to us; or (e) your acts or omissions. You agree to cooperate fully with us in the defense of any claim that is the subject of your obligations hereunder.
14. DISCLAIMERS
(A) YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE AND WEBSITE CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, ESAGONO OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES DISCLAIM ANY AND ALL WARRANTIES INCLUDING ANY: (i) WARRANTIES THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; (ii) WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, TIMELINESS, OR INFORMATIONAL CONTENT OF THE WEBSITE OR WEBSITE CONTENT; (iii) WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (iv) WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON OUR WEBSITE OR ACCESSED THROUGH THE WEBSITE; (v) WARRANTIES CONCERNING THE ACCURACY OR RELIABILITY OF THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE; (vi) WARRANTIES THAT YOUR USE OF THE WEBSITE WILL BE SECURE OR UNINTERRUPTED; AND (vii) WARRANTIES THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(B) ESAGONO IS NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON AptPrep.com OR IN CONNECTION WITH THE AptPrep.com WEBSITE WHETHER CAUSED BY USERS OF AptPrep.com OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN AptPrep.com.
15. LIMITATION ON LIABILITY
(A) YUNDER NO CIRCUMSTANCES SHALL ESAGONO OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, OR THEIR RELATED COMPANIES BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF ESAGONO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THE WEBSITE OR THESE TERMS OF USE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE INCLUDING, WITHOUT LIMITATION, THE WEBSITE CONTENT IS TO STOP USING THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH ANY OF THE WEBSITE OR ANY LINKS ON THE WEBSITE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH ANY OF THE WEBSITE OR ANY LINKS ON THE WEBSITE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY CONTENT POSTED BY A THIRD-PARTY OR CONDUCT OF A THIRD-PARTY ON THE WEBSITE.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF ESAGONO AND ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, PARTNERS, SUCCESSORS, AGENTS, DISTRIBUTION PARTNERS, AFFILIATES, SUBSIDIARIES, AND THEIR RELATED COMPANIES EXCEED THE AMOUNT EQUALS TO $100. FURTHERMORE, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH ANY OF THE WEBSITE OR THESE TERMS OF USE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
(C) In some jurisdictions limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you. These limitations shall apply to the fullest extent permitted by law.
16. CHOICE OF LAW, JURISDICTION AND VENUE
These Terms of Use shall be construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. Any legal proceedings against Esagono that may arise out of, relate to, or be in any way connected with our Website or these Terms of Use shall be brought exclusively in the state and federal courts of New York located in New York county and you waive any jurisdictional, venue, or inconvenient forum objections to such courts.
17. DISPUTE RESOLUTION, BINDING ARBITRATION
In the Dispute Resolution Section only, "we" and "us" are used to refer to you and Esagono together.
(A) We each agree to first contact each other with any disputes and provide a written description of the problem, all relevant documents/information and the proposed resolution. You agree to contact us with disputes by contacting us at info@aptprep.com. We will contact you based on the contact information you have provided us.
(B) We each agree to finally settle all disputes (as defined and subject to any specific exceptions below) only by arbitration. In arbitration, there's no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and limitations in the Terms of Use and can award the same damages and relief. The arbitrator's decision and award is final and binding, with some exceptions under the Federal Arbitration Act ("FAA"), and judgment on the award may be entered in any court with jurisdiction. We each also agree as follows: (i) "Disputes" are any claims or controversies against each other related in any way to the Website, Website Content or these Terms of Use - this includes claims you bring against our employees, agents, affiliates or other representatives, and claims Esagono may bring against you. (ii) If either of us wants to arbitrate a dispute, we agree to send written notice to the other providing a description of the dispute, previous efforts to resolve the dispute, all supporting documents/information, and the proposed resolution. We will send notice to you based on the contact information you have provided us and notice to us must be sent to the address that we will provide you upon request to info@aptprep.com. Please reference AptPrep Dispute in your subject line. We agree to make attempts to resolve the dispute. If we cannot resolve the dispute within thirty (30) business days of receipt of the notice to arbitrate, then we may submit the dispute to formal arbitration. (iii) The FAA applies to this Agreement and arbitration provision. We each agree the FAA's provisions, not state law, govern all questions of whether a dispute is subject to arbitration. (iv) The arbitration will be administered by the American Arbitration Association ("AAA") under its arbitration rules. If any AAA rule conflicts with these Terms of Use, these Terms of Use apply. (v) The arbitration will be conducted by a single neutral arbitrator and will take place in New York, NY. The federal or state law that applies to these Terms of Use will also apply during the arbitration. (vi) We each agree not to pursue arbitration on a classwide basis. We each agree that any arbitration will be solely between you and us (not brought on behalf of or together with another individual's claim). If for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate doesn't apply and the dispute must be brought in court. (vii) The prevailing party in the arbitration will be entitled to recover its costs and expenses, including reasonable attorneys' fees and experts' fees, which are incurred in connection with the arbitration.(C) Either of us may bring qualifying claims in small claims court.
18. NO CLASS ACTIONS
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASSWIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
19. NO TRIAL BY JURY
TO THE EXTENT ALLOWED BY LAW, WE EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING.
20. U.S. EXPORT CONTROL
Software available in connection with AptPrep.com is further subject to United States export controls. No such software may be downloaded from AptPrep.com or otherwise exported or re-exported in violation of U.S. export laws.
21. MISCELLANEOUS
(A) Any delay or failure on the part of us to exercise or enforce any rights under these Terms of Use to which we may be entitled shall not, in any event, be construed as a waiver of the right and privilege to do so at any subsequent time. You irrevocably agree that you waive any and all rights to injunctive or other equitable relief. The section headings used herein are for convenience only and shall not be given any legal import. If any provision of these Terms of Use is held to be invalid or unenforceable, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Use, which shall remain in full force and effect.
(B) You may not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, without our prior written consent. Any such purported assignment or delegation by you without the appropriate prior written consent will be null and void and of no force and effect. Esagono may assign these Terms of Use or any rights hereunder without your consent and without notice.
(C) We reserve the right in our sole discretion and at any time and for any reason, to modify or discontinue any aspect or feature of the Website or to modify these Terms of Use.
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