Terms of Service Agreement
Effective: December 25, 2013
1. Acceptance of the Terms and Conditions.
2. Access and Use of the Web Site.
- 2.1 This Web Site is designed to connect learners who have an interest in studying certain subjects or skills in personalized tutoring sessions and tutors who are looking to create and implement educational content in their area of specialization (the “Service”). Tutors and learners can use the Service to negotiate customized curriculum and structured lesson plans that target the particular needs of the learners. The Service is designed to allow both learners and tutors who visit the Web Site to create individual user accounts and connect with each other to structure a potential business transaction.
- 2.3 You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify the Company of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. The Company will not be liable for any loss or damage arising from your failure to comply with Sections 2.2 or 2.3.
3. Payment Terms.
- 3.1 If a learner and tutor agree on a customized curriculum, schedule and payment plan through the Service (a “Transaction”), such learner will be responsible for paying the Company the agreed-upon fee for the tutor, plus a twelve percent (12%) fee that will be retained by the Company to compete the Transaction. The learner will be given twenty-four (24) hours after completion of the lesson (the “Claim Period”) to e-mail the Company at [email@example.com] if the learner believes the Transaction was not completed in accordance with the agreed-upon terms (a “Claim”). Such Claim must detail the reasons that the learner believes he or she is entitled to a refund. If the Claim Period lapses without the Company receiving a Claim, the Transaction fees will be released from escrow and processed by the Company. If a Claim is received by the Company during the Claim Period, the Company will review such Claim and conclude, in its sole discretion, whether a refund for the Transaction is due to the learner. If the Company concludes that the learner should be refunded for the Transaction, the total Transaction fee (including both the tutor’s fee and the Company’s fee) will be refunded to the learner.
- 3.2 Notwithstanding anything to the contrary herein, the Company may change its Transaction fee at any time upon thirty (30) days’ notice to users, either through a pop-up notice, in an email notification or through other reasonable means. Any Transactions agreed to prior to the change in the Transaction fees, or during the thirty (30) day notice period, will be charged according to the rate in place prior to such notification. All payments will be made in U.S. dollars by credit card through the Company’s third-party payment processor, without any withholding, deduction, offset, setoff or other charge. Users are responsible for providing valid credit card information or bank account information. All amounts payable by users to the Company hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Users will be solely responsible for payment of any Taxes, except for those taxes based on the income of the Company.
4. Conditions of Use.
- 4.1 User Conduct. You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials that you upload, post, publish or display (hereinafter, “upload”) or email or otherwise share via the Service (“User Content”), including information provided for your user profile, in reviews of tutoring sessions and tutors, in the New Tutor Application and Build-A-Course page. The Company reserves the right to investigate and take appropriate legal action against anyone who, in the Company’s sole discretion, violates this provision, including without limitation, removing the offending User Content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
(a) email or otherwise upload any User Content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Company or its users to any harm or liability of any type;
(b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
(c) violate any applicable local, state, national or international law, or any regulations having the force of law;
(d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(e) falsify user account information;
(f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
(g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
(h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
(i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
- 4.2 Tutoring Transactions. The Service acts as a meeting place for users to interact with other users interested in entering into educational tutoring transactions. There are risks that you assume when dealing with other users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not the Company. The Company performs background checks on its tutors but cannot ultimately control the behavior of the tutors, the effectiveness of the educational courses or the overall tutoring experience. The Company has not vetted and does not control other users of the Service, such as learners seeking instruction, or the information or other content provided by such users that is made available through the Service. As a result, the Company does not guarantee or endorse the authenticity, quality, safety, or legality of any transactions. Additionally, the Company does not guarantee the ability or intent of users to fulfill their obligations in any transactions. FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH THE WEB SITE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY’S ABILITY TO PAY FOR, IN THE CASE OF THE LEARNER, OR DELIVER THE TUTORING CLASSES OFFERED, IN THE CASE OF THE TUTOR. PLEASE USE CAUTION AND COMMON SENSE WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE WEB SITE. [NTD: Let’s discuss this provision. We want to limit your liability as much as possible, while also conveying any guarantees that you want to make for your users (noting that guarantees will open you up to more liability).
5. Intellectual Property Rights.
- 5.1 Service Content. This Web Site contains material, including but not limited to software, text, graphics and images (collectively referred to as the “Service Content”). We may own the Service Content or portions of the Service Content may be made available to us through arrangements that we have with third-parties. The Service Content is protected by United States and foreign intellectual property laws. Unauthorized use of the Service Content may result in violation of copyright, trademark, and other laws. You have no rights in or to the Service Content, and you will not use, copy or display the Service Content except as permitted under this Agreement. No other use is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the original Service Content on any copy you make of the Service Content. You may not sell, transfer, assign, license, sublicense, or modify the Service Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service Content in any way for any public or commercial purpose. The use or posting of any of the Service Content on any other web site or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of this Agreement, your right to access and/or use the Service Content and Web Site shall automatically terminate and you shall immediately destroy any copies you have made of the Service Content.
- 5.2 Trademarks. The trademarks, service marks, and logos of the Company (the “Company Trademarks”) used and displayed on this Web Site are registered and unregistered trademarks or service marks of the Company.Other company, product, and service names located on the Web Site may be trademarks or service marks owned by third-parties (the “Third-Party Trademarks”, and, collectively with the Company Trademarks, the “Trademarks”). Nothing on this Web Site or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on this Web Site without the prior written consent of the Company specific for each such use. The Trademarks may not be used to disparage the Company or the applicable third-party, the Company’s or third-party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Trademarks as part of a link to or from any web site is prohibited without the Company’s prior written consent. All goodwill generated from the use of any Company Trademark shall inure to the Company’s benefit.
- 5.3 Third-Party Material. Under no circumstances will the Company be liable in any way for any content or materials of any third parties (including tutors and learners), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that the Company does not pre-screen content, but that the Company and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, the Company and its designees will have the right to remove any content that violates this Agreement or is deemed by the Company, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
- 5.4 User Content Transmitted through the Service. With respect to the User Content, you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading any User Content, you hereby grant and will grant the Company and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed. You acknowledge and agree that the Company may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of the Company, its users and the public. You understand that the technical processing and transmission of the Service, including User Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
- 5.5 Copyright Complaints. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S.copyright law. If you believe in good faith that materials in user reviews, or other public posting areas hosted by the Company that may be made available on the Web Site from time to time, infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. Notices and counter-notices must meet the then current statutory requirements imposed by the DMCA (see www.copyright.gov/legislation/dmca.pdf for details). Notices and counter notices with respect to the Web Site should be sent to the Company at:
31 St. James Ave Ste. 920
Boston, MA 02116
By Email: firstname.lastname@example.org
- 5.6 Third-Party Web Sites. The Web Site contains links to third-party web sites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or Webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of any materials on such External Sites. You should take precautions when downloading files from all web sites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
6. Limitation of Liability and Disclaimer of Warranties.
- 6.1 THE COMPANY, ITS AFFILIATES, THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS (COLLECTIVELY, THE “COMPANY PARTIES“) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT ON THE WEB SITE, INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS OR RELIABILITY. THE COMPANY PARTIES SHALL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY OR COMPLETENESS OF THE CONTENT OR ANY OTHER INFORMATION CONVEYED TO THE USER OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE WEB SITE AND THE CONTENT AT YOUR OWN RISK.
THE COMPANY PARTIES DO NOT WARRANT THAT THE WEB SITE WILL OPERATE ERROR FREE OR THAT THE WEB SITE, ITS SERVER, OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE WEB SITE OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO COMPANY PARTY SHALL BE RESPONSIBLE FOR THOSE COSTS.
THE WEB SITE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
- 6.2 IN NO EVENT SHALL ANY COMPANY PARTY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE WEB SITE AND THE CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF SUCH COMPANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID TO THE COMPANY IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
- 6.3 Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, THE LIABILITY OF THE COMPANY PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- You agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising from or relating to your breach of this Agreement or your access to, use or misuse of the Service, Web Site or any User Content. The Company shall provide notice to you of any such claim, suit, or proceeding. The Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting the Company’s defense of such matter.
8. Termination of the Agreement.
- 8.1 The Company reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Web Site at any time and for any reason without prior notice or liability. The Company reserves the right to change, suspend, or discontinue all or any part of the Web Site at any time without prior notice or liability.
- 8.2 Sections 2 (Access and Use of the Web Site), 3 (Conditions of Use), 4 (Intellectual Property Rights), 5 (Limitation of Liability and Disclaimer of Warranties), 6 (Indemnification), 7 (Termination of the Agreement) and 10 (Miscellaneous) shall survive the termination of this Agreement.
9. User Must Comply with Applicable Laws.
- 9.1 This Web Site is based in Brooklyn, New York. We make no claims concerning whether the any Web Site content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Web Site from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
- 9.2 The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Web Site content to countries or persons prohibited under the export control laws. By downloading the Web Site content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Web Site content.
10. User Disputes.
- You agree that you are solely responsible for your interactions with any other user in connection with the Service and the Company will have no liability or responsibility with respect thereto. The Company reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
- This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York, New York. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Failure of the Company to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against the Company unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by the Company and you, this Agreement constitutes the entire Agreement between you and the Company with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees. Any information submitted or provided by you to the Web Site might be publicly accessible. Important and private information should be protected by you. The Company is not liable for protection of privacy of electronic mail or other information transferred through the Internet or any other network that you may use.