Use of the words “you” and “your” throughout this Agreement refer to the user purchasing with Installments, and the words “we,” “us,” and “our” refer to Magoosh.
PROMISE TO PAY: The Agreement governs your payment to us in connection with the Magoosh subscription you elected to purchase with Installments. You promise to pay the sum of your first payment and other payment amounts under this Agreement, according to the amounts displayed under “Pay in installments” (your “Payment Schedule”).
THERE ARE NO FINANCE CHARGES AND NO INTEREST PAYMENTS ASSOCIATED WITH THIS AGREEMENT.
Please note that Section 6 of this Agreement includes provisions that govern how claims we may have against each other are resolved. These provisions limit our liability for a dispute that you assert against us. The Agreement includes important terms regarding your rights related to dispute resolution and governing law.
This Agreement incorporates by reference all terms and conditions of our Terms of Use (available at https://gre.magoosh.com/terms) and Privacy Policy (available at: https://gre.magoosh.com/privacy) unless explicitly superseded by this Agreement. In the event of a conflict with the Terms of Service or Privacy Policy, this Agreement shall govern with respect to the subject matter of such conflicting terms.
By electronically accepting this Agreement and completing a purchase, you agree to pay the first payment amount to us and pay us the amounts disclosed in your Payment Schedule provided to you electronically as part of this Agreement.
When you accept this Agreement and place an order, you will identify your preferred method of payment, designating an eligible credit or debit card as your “Payment Method.” In addition to the first payment, you must make three (3) payments to us (each, an “Installment Payment”) in the amounts shown in your Payment Schedule. You are responsible for ensuring that you have sufficient funds available to make Installment Payments on the dates specified in your Payment Schedule.
If you make all Installment Payments in full on their due dates, your final payment will be made on the last date identified in the Payment Schedule.
If you would like to change your payment method or make alternate payment arrangements, or if you have further issues or questions, you may contact us at help@magoosh.com. The Payment Method you select and any necessary authorization will not affect your obligation to pay when due all amounts payable under this Agreement. The foregoing authorization is in addition to, and not in limitation of, any rights of setoff we may have under applicable law.
There are no finance charges or interest associated with this Agreement. However, if an Installment Payment is not paid on the due date specified in the Payment Schedule and remains unpaid for a period of ten (10) days after the due date (or such additional grace period required by applicable law), you will be delinquent and we reserve the right to limit, restrict, suspend or terminate your access to your Magoosh account.
If you decide to request a refund through our 7-day money back guarantee (https://magoosh.zendesk.com/hc/en-us/articles/203445429-What-s-your-refund-policy-How-do-I-cancel-my-account-), you will no longer be obligated to make all payments still outstanding under this Agreement. However, no refunds will be granted outside of the 7-day money back guarantee or score guarantee policies. All installment payments must be completed and will be considered delinquent if unpaid ten (10) days after the due date (see section 3. Late payments and Delinquency).
If you have a complaint or dispute with us arising out of or related to this Agreement, you should contact us at help@magoosh.com. We may request additional documentation from you to assist us in resolving any complaints or disputes, and you must provide all reasonable assistance to us to facilitate us in resolving all complaints and disputes.
(a) To expedite resolution and to minimize the cost of any claims and disputes arising out of or relating to this Agreement (“Dispute(s)”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Magoosh account. Our address for such Notices is: Magoosh Inc, 2020 Milvia St #220, Berkeley, CA 94704, Attention: Legal, or by email to help@magoosh.com. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.
(b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, AFTER 30 DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ALL DISPUTES SHALL BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS. THE ARBITRATOR SHALL ALSO DECIDE ANY ISSUES RELATING TO THE MAKING, VALIDITY, ENFORCEMENT, OR SCOPE OF THIS ARBITRATION AGREEMENT, ARBITRABILITY, DEFENSES TO ARBITRATION INCLUDING UNCONSCIONABILITY, OR THE VALIDITY OF THE JURY TRIAL, CLASS ACTION OR REPRESENTATIVE ACTION WAIVERS (COLLECTIVELY, “ARBITRABILITY” ISSUES). YOU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. FURTHER, UNLESS YOU OPT OUT OF ARBITRATION, YOU ALSO AGREE TO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION.
(c) The arbitration will be commenced and conducted in Alameda County, California under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
(d) The parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Aforementioned Disputes shall be brought in Alameda County, California unless the parties agree otherwise. In addition, either party may assert claims, if they qualify, in small claims court in any United States county where you live or work.
(e) You agree that this agreement to arbitrate may be enforced by us or our affiliates, subsidiaries, or parents, and each of their officers, directors, employees, and agents. This arbitration agreement is made pursuant to a transaction involving interstate commerce. The Federal Arbitration Act (9 U.S.C. §§1-16) (the “FAA”) shall govern this agreement to arbitrate including all arbitrability issues. No state law respecting arbitrability issues shall govern this agreement to arbitrate. Subject to and without limiting the foregoing, federal law shall apply to all other issues that arise under federal law and applicable state law as set forth in Section 10 below shall apply to all other issues that arise under state law (without reference to a state’s choice of law rules). YOU MAY OPT OUT OF ARBITRATION BY SENDING US WRITTEN NOTICE WITHIN 30 DAYS OF SIGNING THIS AGREEMENT STATING THAT YOU WISH TO “OPT OUT OF THE AGREEMENT TO ARBITRATE DISPUTES.” THE OPT-OUT NOTICE SHOULD BE SENT TO THE FOLLOWING ADDRESS: Magoosh Inc, 2020 Milvia St #220, Berkeley, CA 94704, Attention: Legal or by electronic mail at help@magoosh.com and include (i) your Magoosh account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration. If you do not opt out, but any part or parts of your agreement to arbitrate are unenforceable then we and you agree that such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to participate in class, representative or to arbitrate injunctive relief claims is unenforceable then the agreement to arbitrate shall be of no force or effect.
(f) CALIFORNIA RESIDENTS IF YOU RESIDE IN CALIFORNIA AND YOU OPT-OUT OF ARBITRATION, WE AND YOU AGREE THAT ANY DISPUTES WILL BE RESOLVED IN THE SUPERIOR COURT FOR THE COUNTY OF ALAMEDA BY JUDICIAL REFERENCE PURSUANT TO THE CALIFORNIA CODE OF CIVIL PROCEDURE (“CCP”), § 638(a). YOU ACKNOWLEDGE AND AGREE THAT IN ANY SUCH JUDICIAL REFERENCE ACTION, ANY DISPUTE WILL BE HEARD BY A REFEREE AND NOT BY A SUPERIOR COURT JUDGE AND JURY AND HEREBY WAIVE YOUR CONSTITUTIONAL AND STATUTORY RIGHTS TO HAVE A TRIAL IN FRONT OF A JUDGE AND JURY. The Referee shall be appointed pursuant to CCP § 640 in the absence of agreement on the selection. Upon request, we will pay your portion of the fees and expenses of the Referee.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF YOU RESIDE IN CALIFORNIA AND YOU DO NOT OPT-OUT OF ARBITRATION, YOU MAY SEEK PUBLIC INJUNCTIVE RELIEF IN ARBITRATION TO THE EXTENT PERMITTED BY APPLICABLE LAW. Alternatively, if your Dispute involves a claim for public injunctive relief under California law, you may bring that claim in court. If you bring such claim in court, you further agree that we may treat such a claim as a Dispute within the meaning of the arbitration agreement set forth in this Section 9, and that we would then have the right to demand arbitration, and if you refuse such demand, to move to enforce arbitration in accordance with the terms of the foregoing arbitration agreement pursuant to the FAA. If we lose our motion to compel arbitration, you agree to stay your claim in court for public injunctive relief pending (1) exhaustion of our right to appeal in court from the ruling against us, and (2) completion of arbitration of all other Disputes. If we win our motion to compel arbitration, your claims for injunctive relief will be decided in arbitration in accordance with the terms of the foregoing arbitration agreement, inclusive of the requirement that the arbitration may award injunctive relief only as is necessary to remedy your own alleged injury or to prevent future injury to you alone.
Except as expressly provided in Section 6 above, this Agreement shall be governed by, and will be construed under, the laws of the state of California without regard to choice of law principles.
IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY LOST PROFITS OR SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, WE MAKE NO REPRESENTATION OR WARRANTY TO YOU REGARDING THE EFFECT THAT THE AGREEMENT MAY HAVE UPON YOUR FOREIGN, FEDERAL, STATE OR LOCAL TAX LIABILITY. You agree that if any lawsuit or court proceeding is permitted under this Agreement, the aggregate liability of us, our subsidiaries, partners, and affiliates, and Magoosh Inc., its subsidiaries, partners, and affiliates, to you for all claims arising out of or related to this Agreement or your use or inability to use your Magoosh account will not (other than as may be required by applicable law in cases involving personal injury) exceed the greater of: (a) the amount of any affected order(s) giving rise to such damages, or (b) the amount of five hundred U.S. dollars ($500.00). These limitations will apply even if the above stated remedy fails of its essential purpose.
Notwithstanding any current or prior election to opt in or opt out of receiving email communication from us, you expressly consent to be contacted by us for any and all purposes arising out of or relating to this Agreement, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way. In the event that a representative calls, he or she may also leave a message on your voicemail.
This Agreement is effective until all amounts due under the Agreement are paid in full or otherwise cancelled or refunded. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and shall be binding upon the parties and shall be enforceable, as though said invalid or unenforceable provision (or portion thereof) were not contained in this Agreement. This Agreement, including all documents incorporated by reference, constitutes and contains the entire agreement between you and us with respect to the subject matter hereof and supersede any prior or contemporaneous oral or written agreements.
THIS AGREEMENT IS FULLY SUBJECT TO YOUR CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES PREVIOUSLY PROVIDED.
Last updated October 2020