These Terms of Use constitute a legally binding agreement (the 'Agreement')
between you and Tutorgigs. ('Company') governing
your use of Company's applications, website, and technology Platform
(collectively, the 'Platform').
The www.tutorgigs.io website ('Website') and
its services for organizations that are seeking tutors, customized data analysis, test preparation provider connecting, and/or
educational content and learning tools (the 'Service') are owned and
operated by Company.
Company has adopted this Agreement to make you aware of the terms and
conditions of your use of the Website and the Service. By using the Website
and/or the Service, you agree to be bound by certain terms of this Agreement
and acknowledge that Sections 3 and 4 are not binding upon you unless you
provide your express written consent, as more fully described below.
By entering this Agreement, you expressly acknowledge that you
understand this Agreement. You also expressly acknowledge that the Consent to
Communications (Section 3) and the Dispute Resolution and Arbitration (Section
4) provisions of this Agreement are only binding on you if you have provided
express written consent by submitting your phone number and/or email address on
the Website and by affirmatively logging into our system as a tutor through the login page
('Express Written Consent'). Express Written Consent is not
required to be bound by the terms of this Agreement except for Sections 3 and
4, which require Express Written Consent. IF YOU HAVE NOT PROVIDED YOUR EXPRESS
WRITTEN CONSENT, YOU ARE NOT BOUND BY THE CONSENT TO COMMUNICATIONS (SECTION 3)
OR THE DISPUTE RESOLUTION AND ARBITRATION (SECTION 4) PROVISIONS OF THIS
AGREEMENT. IF YOU HAVE NOT PROVIDED YOUR EXPRESS WRITTEN CONSENT AND DO NOT
WISH TO BE FURTHER BOUND BY ANY TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY
NOT USE OR ACCESS THE PLATFORM OR YOUR USE OR ACCESS MAY BE LIMITED AS
DETERMINED BY COMPANY IN ITS SOLE DISCRETION.
The terms 'you,' 'your' or 'User(s)' refers to any individual
accessing the Website or the Service for his/her/its own personal purposes, on
behalf of an entity or other person, for purposes related to Tutors and the
Service provided to Tutors, and for purposes related to Students and the Service
provided to Students. In the event that you purport to be the agent of,
represent, or otherwise act on behalf of an entity or any other person,
references to 'you,' 'your' or 'User(s)' shall include you individually and any
such entity or person that you purport to represent, and you further represent
and warrant that you are in fact an authorized representative of such entity or
other person, that you have the authority to bind such entity or other person
to this Agreement, and that your acceptance of this Agreement (including if you
have provided your Express Written Consent to its terms) shall constitute
acceptance on behalf of such entity or person.
The disclaimers, terms, and conditions on these pages are of
general application and may be supplemented upon a purchase by a Consent to
Electronic Communications Delivery and Electronic Signature Policy, Terms of
Customer Account Use, Customer Terms of Account Use, Independent Contractor
Agreement and/or by additional policies, procedures, disclaimers, guidelines,
rules, terms or conditions of specific application disclosed by Company, as set
forth in these referenced documents, if any. The above supplements to the
Agreement may include such supplements as appear on any particular page of this
Website, Platform, or through what is purchased, or through a registration
process or other means. In the event of a conflict between the Agreement and
any additional policies, procedures, disclaimers, guidelines, rules, terms or
conditions of specific application, the additional policies, procedures,
disclaimers, guidelines, rules, terms or conditions of specific application
shall control.
By using or otherwise accessing the Website or the Service,
posting or downloading content or any other information to or from the Website
or the Service, or manifesting your assent to this Agreement in any other
manner, you hereby unequivocally and expressly agree to, and shall be subject
to, this Agreement (except for Sections 3 and 4 which you will not be subject
to and are not binding unless you have provided your Express Written Consent).
If you do not unequivocally agree to be bound by the provisions of this
Agreement (except for Sections 3 and 4, to which you are not required to agree
to use or for access to the Website or the Service), you may not use or
otherwise access the Website or the Service or post or download content or any
other information to or from the Website or the Service. Alternatively, access
and/or use may be limited as determined by Company in its sole discretion. Your
sole remedy for dissatisfaction with the Website or the Service or any content
is to stop using the Website.
1. General Terms of Use and Restrictions on Use of
Materials
Company hereby grants you a limited, non-exclusive,
non-assignable, nontransferable license to access and use the Website solely
for purposes related to tutoring students, subject to your agreement to, compliance with and
satisfaction of this Agreement other than Sections 3 and 4, which are not
binding and require no compliance with or satisfaction thereof unless you have
provided your Express Written Consent to this Agreement. All rights not
otherwise expressly granted by this Agreement are reserved by Company. If you
do not comply with the Agreement at any time, Company reserves the right to
revoke the aforementioned license(s), limit your access to the Website, or
restrict your ability to post or download Content, which may include the
ordering of products and Service. All materials contained in this Website or
made available through the Service, are protected by United States and
international trademark and copyright laws, are owned or controlled by Company
(or its partners), and must only be used for certain approved purposes as
established by Company. You may only view or download material from this
Website for your own use or as otherwise expressly authorized by Company. You
are solely responsible for providing, maintaining and ensuring the
compatibility of all hardware, software, electrical, and other physical
requirements necessary for your access to and use of the Website or any part
thereof.
The reproduction, duplication, distribution (including by way of
email, facsimile or other electronic means), publication, modification, copying
or transmission of material available on or through this Website or the Service
is strictly prohibited without the prior written consent of Company
or unless expressly permitted by this Website or the Service. This includes,
without limitation, any application, text, graphics, logos, photographs, audio
or video material or stills from audiovisual material available on this Website
by Company, including Subscription Content ('Content'), if any. The
copying, posting, linking or other use of Content from this Website or the
Service on any other website or networked computer environment is similarly
prohibited. Requests for permission to reproduce or distribute materials found
on this Website or the Service can be made by contacting Company by mail, in
writing at the address listed below. You are also strictly prohibited from
creating works or materials that derive from or are based on the Content or
other materials contained in this Website or the Service. This prohibition
applies regardless of whether the derivative materials are sold, bartered or
given away. You shall not copy, reverse engineer, disassemble, decompile,
translate, modify, reproduce, republish, transmit, sell, offer for sale,
disseminate or redistribute the Content, trademarks, Service marks, logos, or
icons displayed on the Website or Service, which are the property of Company,
or its affiliates or licensors, if any, unless otherwise specifically noted in
this Agreement. Trademarks, service marks, logos, and icons owned by third parties
are the property of those respective third parties. Company and affiliates do
not warrant or represent that your use of the Content will not infringe the
rights of third parties.
If you do not comply with the Agreement at any time, Company
reserves the right to terminate, limit, or otherwise alter your access to the
Website or the Service. We may discontinue or alter any aspect of the Website
or the Service, including, but not limited to, (i)
restricting the time the Website or the Service is available, (ii) restricting
the amount of use permitted, and (iii) restricting or terminating your right to
use the Website or the Service, at Company's sole discretion and without prior
notice or liability.
2. Modification to the Agreement
This Agreement is intended to provide you with the safest and
most secure experience possible. Since offerings and technologies change,
Company reserves the right to change, modify, add or remove portions of this
Agreement at any time without prior notice. Continued use of the Platform or
Service after any such changes shall constitute your consent to such changes
unless such changes are to Sections 3 or 4 of this Agreement. If Company
changes or modifies the Consent to Communications (Section 3) or Dispute
Resolution and Arbitration (Section 4) provisions of this Agreement, such
modifications shall be binding on you only upon your Express Written Consent of
the modified Agreement. Company reserves the right to modify any information
referenced in the hyperlinks from this Agreement from time to time, and such
modifications shall become effective upon posting.
If you have any questions, or would like further clarification,
please e-mail Company at support@tutorgigs.io. Any changes in Company's policies will be communicated
on this page.
This Website is operated by Tutorgigs.
All inquiries may be directed to:
Tutorgigs
PO Box 1691
Stafford, TX 77497
3. Consent to Communications
You acknowledge that the Consent to Communications provision of
this Agreement is not binding on you unless you have provided your Express
Written Consent (as defined above) to this Agreement. If you have provided your
Express Written Consent (as defined above), the following provisions of the
Consent to Communications provision are binding on you.
a) Agreement to Receive Communications from Company.
By using the Platform and providing your phone number and/or
email on the Platform, you agree and acknowledge that Company may communicate
with you via email, text messaging, text receipts, Short Messaging Service
('SMS'), facsimile, and all phone calls at the number you provide. Such
communications may be for any purpose, including marketing purposes, purposes
related to Tutors and the Service provided to Tutors, and purposes related to
Students and the Service provided to Students, using all methods now known and
discovered in the future, including, but not limited to, auto-dialers,
artificial messages, pre-recorded messages, general telemarketing practices,
and all other electronic communication. You agree that these calls may be
regarding products and/or Service that Company may market to you and that you
are not obligated to receive such calls in order to purchase said products
and/or Service. Company will not charge you a fee for sending SMS text
messages, but your communication Service provider may. You agree to pay any
fee(s) or charges(s) that you may incur for incoming and outgoing text messages
from or to Company or Company's assigns, successors, Servicers or agents,
without reimbursement from Company or them.
You understand that, should the phone number provided above
cease to be a valid means to contact you or if you cease to retain ownership of
the phone number, you have an obligation to provide Company notification of
same through email at support@tutorgigs.io. You understand and agree that, if Company sends you a
communication but you do not receive it because your primary email address or
phone number on file is incorrect, out of date, blocked by your service
provider, or you are otherwise unable to receive communications, Company will
be deemed to have provided the communication to you. Please note that if you
use a spam filter that blocks or re-routes emails from senders not listed in
your email address book, you must add Company to your email address book so
that you will be able to receive the communications Company sends to you.
By electronically providing your Express Written Consent to this
consent to communications, you are confirming that you have agreed to the terms
and conditions herein and you have had an opportunity to download or print a
copy of the Agreement for your file.
b) Electronic Signature.
You acknowledge that by clicking on login or sign in button on Company's
website, you are indicating your intent to sign the relevant document or record
and that this shall constitute your signature.
c) How to Withdraw Your Consent to Communications.
You may acknowledge that you may withdraw such consent to
communications by notifying Company of such withdrawal (per the opt-out
instructions below or per the opt-out option provided with each communication)
and repeating notification of such revocation if Company subsequently attempts
further communication, but that, until such consent is revoked and, if
applicable, repeated, you may receive calls from Company at your phone number
provided above.
You may withdraw your consent to receive communications by
writing to Company at: Tutorgigs, Attn: Legal
Department, PO Box 1691 Stafford, TX 77497, or by contacting Company via
the "Contact Us" link at the bottom of each page of Company's
website.
d) Requesting Paper Copies of Electronic Communications.
Upon your request, Company will send you a paper copy of
the contract(s) or other material provided to you electronically pursuant to
this consent. If you would like a paper copy of any of this material please
write to Tutorgigs, Attn: Legal Department at PO Box 1691 Stafford, TX 77497 within 30 days of the communication for which
you are seeking a paper copy. There will be no charge for a paper copy of this
material.
e) Miscellaneous.
You agree to indemnify, defend, and hold Company harmless from
and against any and all claims, losses, liability, costs, and expenses
(including reasonable attorneys' fees) arising from your provision of a mobile
phone number that is not your own or your violation of applicable federal,
state or local law, regulation or ordinance. Your obligations under Section 3,
which are only binding if you have provided your Express Written Consent, shall
survive termination of the Agreement. Company will not be liable for losses or
damages arising from any delay in delivery or disclosure of information to
third parties by your communication service provider. Company may modify or
terminate its text messaging service from time to time, for any reason, and
without notice, including the right to terminate text messaging with or without
notice, without liability to you, any other User or a third party.
4. Dispute Resolution and Arbitration
You expressly acknowledge that the Dispute Resolution and
Arbitration provision of this Agreement is not binding on you unless you have
provided your Express Written Consent (as defined above) to this Agreement. If
you have provided your Express Written Consent (as defined above), the
following provisions of this Dispute Resolution and Arbitration provision are
binding on you.
a) Agreement to Binding Arbitration Between You and
Company.
YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO
RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO
RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This arbitration
provision ('Arbitration Provision') is governed by the Federal
Arbitration Act and survives after the Agreement terminates or your
relationship with Company ends. ANY ARBITRATION UNDER THIS ARBITRATION
PROVISION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS
ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this
Arbitration Provision applies to all claims between you and Company, including
Company's affiliates, subsidiaries, parents, successors and assigns, and each
of Company's respective officers, directors, employees, agents, or
shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS
BETWEEN US (EACH A 'CLAIM' AND COLLECTIVELY, 'CLAIMS') SHALL BE
EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND
COMPANY. These claims include, but are not limited to, any dispute, claim
or controversy, whether based on past, present, or future events, arising out
of or relating to: this Agreement and prior versions thereof (including the
breach, termination, enforcement, interpretation or validity thereof); the
Platform; the Service; any other goods or service made available through the
Platform; your relationship with Company; the threatened or actual suspension,
deactivation or termination of this Agreement; payments made by you or any
payments made or allegedly owed to you; any promotions or offers made by
Company; any city, county, state or federal wage-hour law; trade secrets;
unfair competition; breaks and rest periods; expense reimbursement; wrongful
termination; discrimination; harassment; retaliation; fraud; defamation;
emotional distress; breach of any express or implied contract or covenant;
claims arising under federal or state consumer protection laws; claims arising
under antitrust laws; claims arising under the Telephone Consumer Protection
Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act
of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act,
Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor
Standards Act, Employee Retirement Income Security Act (except for individual
claims for employee benefits under any benefit plan sponsored by Company and
covered by the Employee Retirement Income Security Act of 1974 or funded by
insurance for employees eligible under the specific benefit plan), and state
statutes, if any, addressing the same or similar subject matters, and all other
federal and state statutory and common law claims. All disputes concerning the
arbitrability of a Claim (including disputes about the scope, applicability,
enforceability, revocability or validity of the Arbitration Provision) shall be
decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND COMPANY
ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS,
EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION PROVISION. This
Arbitration Provision is intended to require arbitration of every claim or
dispute that can lawfully be arbitrated, except for those claims and disputes
which by the terms of this Arbitration Provision are expressly excluded from
the requirement to arbitrate.
b) Prohibition of Class Actions and Non-Individualized
Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY MAY EACH BRING
CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT
ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS ('CLASS ACTION WAIVER').
YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY BOTH ARE WAIVING THE RIGHT TO
PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY
PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE
FOREGOING, THIS SECTION (b) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS
GENERAL ACT CLAIMS BROUGHT AGAINST COMPANY, WHICH ARE ADDRESSED SEPARATELY IN
SECTION (c).
The arbitrator shall have no authority to consider or resolve
any Claim or issue any relief on any basis other than an individual basis. The
arbitrator shall have no authority to consider or resolve any claim or issue
any relief on a class, collective, or representative basis.
Notwithstanding any other provision of this Agreement, the
Arbitration Provision, the American Arbitration Association ('AAA') Consumer
Arbitration Rules ('AAA Rules'), disputes regarding the scope,
applicability, enforceability, revocability or validity of the Class Action
Waiver may be resolved only by a civil court of competent jurisdiction and not
by an arbitrator. In any case in which: (1) the dispute is filed as a class,
collective, or representative action and (2) there is a final judicial
determination that the Class Action Waiver is unenforceable as to any claims,
the class, collective, and/or representative action on such claims must be
litigated in a civil court of competent jurisdiction, but the Class Action
Waiver shall be enforced in arbitration on an individual basis as to all other
claims to the fullest extent possible.
c) Representative PAGA Waiver.
Notwithstanding any other provision of this Agreement or the
Arbitration Provision, to the fullest extent permitted by law: (1) you and
Company agree not to bring a representative action on behalf of others under
the Private Attorneys General Act of 2004 ('PAGA'), California Labor
Code ¤ 2698 et seq., in any court or in arbitration, and (2) for any claim
brought on a private attorney general basis, including under the California
PAGA, both you and Company agree that any such dispute shall be resolved in
arbitration on an individual basis only (i.e., to resolve whether you have
personally been aggrieved or subject to any violations of law), and that such
an action may not be used to resolve the claims or rights of other individuals
in a single or collective proceeding (i.e., to resolve whether other
individuals have been aggrieved or subject to any violations of law)
(collectively, 'representative PAGA Waiver'). Notwithstanding any other
provision of this Agreement, the Arbitration Provision or the AAA Rules,
disputes regarding the scope, applicability, enforceability, revocability or
validity of this representative PAGA Waiver may be resolved only by a civil
court of competent jurisdiction and not by an arbitrator. If any provision of
this representative PAGA Waiver is found to be unenforceable or unlawful for
any reason: (i) the unenforceable provision shall be
severed from this Agreement; (ii) severance of the unenforceable provision
shall have no impact whatsoever on the Arbitration Provision or the requirement
that any remaining claims be arbitrated on an individual basis pursuant to the
Arbitration Provision; and (iii) any such representative PAGA or other
representative private attorneys general act claims must be litigated in a
civil court of competent jurisdiction and not in arbitration. To the extent
that there are any claims to be litigated in a civil court of competent
jurisdiction because a civil court of competent jurisdiction determines that
the representative PAGA Waiver is unenforceable with respect to those claims,
the parties agree that litigation of those claims shall be stayed pending the
outcome of any individual claims in arbitration.
d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Provision
shall be administered by the AAA pursuant to its Consumer Arbitration Rules that are in effect at the time
the arbitration is initiated, as modified by the terms set forth in this
Arbitration Provision. Copies of the Consumer Arbitration Rules can be obtained
at the AAA's website (www.adr.org) or by calling the AAA at 1-800-778-7879.
Notwithstanding the foregoing, if requested by you and if proper based on the
facts and circumstances of the claims presented, the arbitrator shall have the
discretion to select a different set of AAA Rules, but in no event shall the
arbitrator consolidate more than one person's claims, or otherwise preside over
any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Company will have the
opportunity for reasonable discovery of non-privileged information that is
relevant to the claim. The arbitrator may award any individualized remedies
that would be available in court. The arbitrator may award declaratory or
injunctive relief only in favor of the individual party seeking relief and only
to the extent necessary to provide relief warranted by that party's individual
claims. The arbitrator will provide a reasoned written statement of the
arbitrator's decision which shall explain the award given and the findings and
conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in
accordance with applicable law, and will honor all claims of privilege
recognized by law. The arbitrator's award shall be final and binding and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof, provided that any award may be challenged in a
court of competent jurisdiction.
e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by
the relevant AAA Rules subject to the following modifications:
1. If you initiate arbitration under
this Arbitration Provision after participating in the optional Negotiation
process described in section (j) below and are otherwise required to pay a
filing fee under the relevant AAA Rules, Company agrees that, unless your claim
is for $5,000 or more, your share of the filing and arbitration fees is limited
to $50, and that, after you submit proof of payment of the filing fee to
Company, Company will promptly reimburse you for all but $50 of the filing fee.
If, however, the arbitrator finds that either the substance of your claim or
the relief sought in the claim is frivolous or brought for an improper purpose
(as measured by the standards set forth in Federal Rule of Civil Procedure
11(b)), then the payment of all such fees will be governed by the AAA Rules.
2. If Company initiates arbitration
under this Arbitration Provision, Company will pay all AAA filing and
arbitration fees.
3. Except as provided in Federal Rule of
Civil Procedure 68 or any state equivalents, each party shall pay its own
attorneys' fees and pay any costs that are not unique to the arbitration (i.e.,
costs that each party would incur if the claim(s) were litigated in a court
such as costs to subpoena witnesses and/or documents, take depositions and
purchase deposition transcripts, copy documents, etc.).
4. At the end of any arbitration, the
arbitrator may award reasonable arbitration fees and costs or any portion thereof
to you if you prevail, to the extent authorized by applicable law.
5. Although under some laws Company may
have a right to an award of attorneys' fees and non-filing fee expenses if it
prevails in an arbitration, Company agrees that it will not seek such an award.
6. If the arbitrator issues you an award
that is greater than the value of Company's last written settlement offer made
after you participated in good faith in the optional Negotiation process
described in section (i) below, then Company will pay
you the amount of the award or U.S. $1,000, whichever is greater.
f) Location and Manner of Arbitration.
Unless you and Company agree otherwise, any arbitration hearings
between you and Company will take place in the county of your billing address.
If AAA arbitration is unavailable in your county, the arbitration hearings will
take place in the nearest available location for a AAA arbitration. If your
claim is for $10,000 or less, Company agrees that you may choose whether the
arbitration will be conducted solely on the basis of documents submitted to the
arbitrator, through a telephonic hearing, or by an in-person hearing as
determined by the AAA Rules. If your claim exceeds $10,000, the right to a
hearing will be determined by the AAA Rules.
g) Exceptions to Arbitration.
This Arbitration Provision shall not require arbitration of the
following types of claims: (1) small claims actions brought on an individual
basis that are within the scope of such small claims court's jurisdiction; (2)
a representative action brought on behalf of others under PAGA or other private
attorneys general acts, to the extent the representative PAGA Waiver in section
(c) of such action is deemed unenforceable by a court of competent
jurisdiction; (3) claims for workers' compensation, state disability insurance
and unemployment insurance benefits; and (4) claims that may not be subject to
arbitration as a matter of law.
Nothing in this Arbitration Provision prevents you from making a
report to or filing a claim or charge with any local, state, or federal agency
and nothing in this Arbitration Provision shall be deemed to preclude or excuse
a party from bringing an administrative claim before any local, state, or
federal agency, to the extent you are entitled to pursue such a claim, in order
to fulfill the party's obligation to exhaust administrative remedies before
making a claim in arbitration, however you knowingly and voluntarily waive the
right to seek or recover money damages of any type pursuant to any
administrative complaint and instead may seek such relief only through
arbitration under this Arbitration Provision. Nothing in this Agreement or
Arbitration Provision prevents your participation in an investigation by a
government agency of any report, claim or charge otherwise covered by this
Arbitration Provision.
h) Severability.
In addition to the severability provisions in section (c) above,
in the event that any portion of this Arbitration Provision is deemed illegal
or unenforceable, such provision shall be severed and the remainder of the
Arbitration Provision shall be given full force and effect.
i) Opting Out of Arbitration.
You may opt out of the requirement to arbitrate claims defined
in section (e)(3) pursuant to the terms of this section. If you do not wish to
be subject to this Arbitration Provision with respect to claims, you may opt
out of arbitration with respect to such claims by notifying Company in writing
of your desire to opt out of arbitration for such claims, which writing must be
dated, signed and delivered by: (1) electronic mail to support@tutorgigs.io or (2) by certified mail,
postage prepaid and return receipt requested, or by any nationally recognized
delivery Service (e.g, UPS, Federal Express, etc.)
that is addressed to:
Tutorgigs.
Attn: Legal Department
PO Box 1691
Stafford, TX 77497
In order to be effective, (A) the writing must clearly indicate
your intent to opt out of this Arbitration Provision with respect to claims,
(B) the writing must include the name, phone number, and email address
associated with you, and (C) the email or envelope containing the signed
writing must be sent within 30 days of the date this Agreement is executed by
you. Should you not opt out within the 30-day period, you and Company shall be bound
by the terms of this Arbitration Provision in full.
You should assume that there may be now, and may be in the
future, lawsuits against Company alleging class, collective, and/or
representative claims in which the plaintiffs seek to act on your behalf, and
which, if successful, could result in some monetary recovery to you. But if you
do agree to arbitration of claims with Company under this Arbitration
Provision, you are agreeing in advance that you will bring all such claims, and
seek all monetary and other relief, against Company in an individual
arbitration provision. You are also agreeing in advance that you will not
participate in, or seek to recover monetary or other relief, for such claims in
any court action or class, collective, and/or representative action. You have
the right to consult with counsel of your choice concerning this Arbitration
Provision and you will not be subject to retaliation, if you exercise your
right to assert claims or timely opt-out of arbitration, for any claims under this
Arbitration Provision.
j) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Company
may agree to first attempt to negotiate any dispute, claim or controversy
between the parties informally for 30 days, unless this time period is mutually
extended by you and Company. A party who intends to seek negotiation under this
section must first send to the other a written notice of the dispute ('Notice').
The Notice must (1) describe the nature and basis of the claim or dispute; and
(2) set forth the specific relief sought. All offers, promises, conduct and
statements, whether oral or written, made in the course of the negotiation by
any of the parties, their agents, employees, and attorneys are confidential, privileged
and inadmissible for any purpose, including as evidence of liability or for
impeachment, in arbitration or other proceeding involving the parties, provided
that evidence that is otherwise admissible or discoverable shall not be
rendered inadmissible or non-discoverable as a result of its use in the
negotiation.
5. Your Privacy
In an effort to address your privacy concerns, Company has
instituted the following Privacy Policy located at www.tutorgigs.io ('Privacy Policy') that is incorporated herein by
this reference. Company reserves the right to change the Privacy Policy as set
forth therein. You acknowledge that you have read and understand the Privacy
Policy and that you have the obligation to periodically review the Privacy
Policy from time to time. In the event any provisions contained in this
Agreement conflict with any terms, conditions or clauses contained in the
Privacy Policy, the provisions of this Agreement shall govern.
Company may disclose information to trusted affiliates,
independent contractors, and partners, who may use the information for certain
business purposes deemed to be aligned with Company's goals and business
objectives. In addition, Company may transfer information collected from Users
in connection with a sale or restructuring of Company.
6. Permitted User Content Posted on the Website
We welcome your comments regarding the Website and the Service.
However, to the maximum extent permitted by applicable law, you acknowledge and
agree that all right, title, and interest in any content or information you
submit, irrespective of the manner of such submission, to Company
(collectively, 'User Content') will be and remain the exclusive property
of Company at no additional fee, charge, cost, or expense to Company. Your
submission of any such User Content shall constitute an assignment to Company
of all worldwide rights, titles and interests in all copyrights and other
intellectual property rights in the User Content. Company will be entitled to
use, reproduce, disclose, publish and distribute any material you submit for
any purpose whatsoever, without restriction or prior notice and without
compensating you in any way. For this reason, do not send Company any comments
that you do not wish to assign to us, including any confidential information or
any original creative materials such as stories, articles, forms, product
ideas, computer code or other original materials. Company hereby retains the
unrestricted right to use and to grant third parties the right to use the User
Content in any manner and for any purpose in its sole discretion.
You are solely responsible for such User Content you provide to
Company or post on the Website or the Service. Company accepts no responsibility
whatsoever in connection with, or arising from, such User Content. You agree
that Company accepts no liability whatsoever if it decides, in its discretion,
to prevent your User Content from being submitted or if it edits, restricts, or
removes any User Content for any reason. You also agree to permit any other
user of this Website to access, view, store or reproduce the material for that
other user's personal use and not to restrict or inhibit the use of the Website
by any other person.
Company does not endorse and has no control over, User Content.
User Content is not necessarily reviewed by Company prior to posting and does
not necessarily reflect the opinions or policies of Company. Company makes no
warranties, express or implied, as to such User Content or its accuracy and
reliability, and assumes no responsibility for actively monitoring the Website
for inappropriate User Content. Company reserves the right to prevent you from
submitting User Content to the Website, and to edit, restrict, or remove such
User Content for any reason at any time. Company may choose, in its sole
discretion, to monitor the Website; however, Company assumes no responsibility
for User Content, no obligation to modify or remove any inappropriate User
Content and no responsibility for the conduct of any user submitting any User
Content.
You should exercise discretion before relying on information
contained on the Website, including User Content. You agree to evaluate, and
assume all risks associated with the use of any information contained on the
Website or Service, including, without limitation, any risk relating to any
reliance on the accuracy, completeness or usefulness thereof.
The Website is not a backup Service for storing User Content,
and Company has and shall have no liability to you or any third parties
regarding any loss of User Content. You are solely responsible for creating
backups of any User Content you post using the Website or the Service.
You hereby represent, warrant, and covenant that any materials
submitted to the Website by you are your own independent creation, solely and
exclusively created by you without assistance from or by any third party, and
do not infringe, in whole or in part, on any patent, copyright, trademark, or
other intellectual property or proprietary rights of any third party.
7. User Representations
You hereby represent and warrant to Company that: (a) you (i) have reached the age of majority in the jurisdiction
where you reside (generally 18, 19, or 21 years of age, depending on the jurisdiction),
(ii) are an emancipated minor under the laws of your jurisdiction of domicile
or residence, (iii) possess legal parental or guardian consent, or (iv)
otherwise have the power and authority to enter into and perform your
obligations under this Agreement; (b) all information provided by you to
Company is truthful, accurate and complete; (c) you are an authorized signatory
of the credit or debit card or other method of payment that you provide to
Company or its third-party payment processor to pay the purchase price and any
applicable fees or taxes related to your purchases of products or Service via
the Website; (d) you will comply with the terms and conditions of this
Agreement and any other agreement to which you are subject that is related to your
use of the Website, Content or any part thereof; (e) you have provided and will
maintain accurate and complete registration information with Company,
including, without, limitation, your legal name, email address and any other
information Company may reasonably require; (f) your access to and use of the
Website or any part thereof or purchase and use of any products or Service will
not constitute a breach or violation of any other agreement, contract, terms of
use or any law or regulation to which you are subject; (g) you will immediately
notify Company in the event that you learn or suspect that your registration
information, username, or password has been disclosed or otherwise made known
to any other person; and (h) if you purport to be the agent of, represent or
otherwise act on behalf of an entity or any other person, that you are in fact
an authorized representative of such entity or other person
In the event that you post any User Content or provide any
feedback via the Website, you hereby make the following additional
representations and warranties to Company: (1) you are owner of such User
Content or feedback or otherwise have the right to grant Company the licenses
or assignments granted pursuant to this Agreement; (2) you have secured any and
all consents necessary to post the User Content or feedback and to grant the
foregoing licenses or assignments; (3) the User Content or feedback does not
violate the rights of any third party, including, without limitation, the
intellectual property, privacy or publicity rights of any third party, and such
User Content or feedback does not contain any personally identifiable
information about third parties, in violation of such parties' rights; (4) the
use of any User Content or feedback will not result in harm or personal injury
to any third party; and (5) all factual information contained in the User
Content or feedback is true and accurate.
8. Links
As a service to users, Company may provide information about
other resources that may be of interest. However, Company is not responsible or
liable for any content, advertising, products, or other materials on, or
available from, such sites or resources, and the presentation of third-party
links or content by Company is not intended to be an endorsement, sponsorship,
or recommendation by Company. Please be aware that when you exit the Website,
you are subject to the policies of the new website. You further acknowledge and
agree that Company shall not be responsible or liable, directly or indirectly,
for any damage or loss caused or alleged to be caused by or in connection with
use of or reliance on any such third-party content, goods or Service available
on or through any third-party website or resource.
9. Prohibited Activities
You shall not (nor cause any third party to) use the Website or
the Service to perform any illegal or immoral activities (including without
limitation defaming, abusing, harassing, stalking, threatening, or otherwise
violating the legal rights - such as rights of privacy of others) or any of the
following types of activities, without limitation:
á
disseminating any unlawful, harassing, libelous, abusive,
threatening, harmful, vulgar, pornographic, obscene, or otherwise objectionable
material;
á
transmitting information that violates any applicable federal,
state, or local laws, rules or regulations, including any governmental agency
guidelines, policies or procedures, or that infringes any patent, trademark,
trade secret, copyright or other intellectual property or proprietary rights of
any party;
á
that would constitute fraud;
á
transmitting any material that contains software viruses, trojan
horses, worms, time bombs, cancelbots, or any other computer code, files, or
programs which may interrupt, destroy, or limit the functionality of any
computer software or hardware or telecommunications equipment;
á
impersonating anyone or any entity, falsely stating or otherwise
misrepresenting your affiliation with a person or entity;
á
interfering with or disrupting the Website or the Service;
á
disrupting the activities or enjoyment of the Website or the
Service for other users;
á
collecting or storing personal data about other users;
á
use of any manual or automated software, devices, or other
processes to 'crawl' or 'spider' any web pages contained in the Website
(including, without limitation, the use of robots, bots, spiders, scrapers or
any other means to extract pricing, product, Service or other data from the
Website);
á
use of the Website to gain competitive intelligence about
Company, the Website, or any product or Service offered via the Website or to
otherwise compete with Company or its affiliates;
á
framing or otherwise simulating the appearance or functions of
the Website or any portion thereof; or
á
harvesting or otherwise collecting any information about other
users, including, without limitation, email addresses or other contact
information of other users.
You agree to abide by all applicable federal, state, or local
laws, rules, or regulations, including any governmental agency guidelines,
policies, or procedures, and are solely responsible for all acts or omissions
taken by you including without limitation any of the User Content created or
submitted by you.
10. Fees
Company (or its partners) may charge a fee to post or access
Content or for other features, products, Service, or licenses. You are
responsible to Company (or its partners) for any fees applicable to Content
that you post or other features, products, Service or licenses you purchase or
that are purchased through Company (or its partners) for using or accessing the
Website or the Service. You authorize Company (or its partners), or its
designated payment processor, to charge your specified credit card, debit card,
or other payment method for such fees as provided through the registration
process.
Unless otherwise specified, all fees are in United States
dollars, and all charges will be made in United States dollars. Any applicable
sales or other taxes are additional to the stated fee. Currency exchange
settlements and foreign transaction fees are based on your agreement with your
credit card or other payment method provider.
Except as required by law, all fees are nonrefundable,
including, without limitation, in situations where paid posts are removed by
Company (or its partners), or by community flagging. Payments and purchases may
not be canceled by the user, except as required by law. However, Company (or
its partners) reserves the right to refuse or terminate any purchase or
attempted purchase at any time in its sole discretion. You understand and agree
that if you authorize a payment transaction with your credit card, debit card,
or other payment method, but your charge is rejected for any reason, there may
be a hold on your use of that transaction amount for several days.
11. Release / Indemnification
You agree to release Company, its members, managers, officers,
employees, and agents from any and all liability and obligations whatsoever in
connection with or arising from your use of the Website and the Service. If at
any time you are not happy with the Website or the Service or object to any
material within the Website or the Service, your sole remedy is to cease using
them.
12. Exclusion of Warranties / Disclaimer
To the maximum extent allowed by law, the Website or the
Service, and any company content are provided 'as is' and 'as available,' and
at your sole risk. Although Company uses reasonable efforts to ensure
that the information contained on the Website and through the Service is as
accurate as possible, Company gives no warranty of any kind regarding
the Website or the Service, or company content posted or
otherwise made available therein. Further, Company does not
warrant the accuracy, completeness, currency, or reliability of
any company content that the results obtained from the use of the
Website or the Service or company content will be accurate or
reliable, or that the quality of the Website or the Service
or company content will meet your
expectations. Company expressly disclaims all warranties,
representations, conditions, undertakings, or other obligations including any
implied warranties of merchantability, fitness for a particular purpose,
non-infringement and any warranty that the Website, the Service
or company content will be error-free or that such errors will be
corrected.
Any company content or other material downloaded or
otherwise obtained through the use of the Website or the Service is done at
your sole risk, and you will be solely responsible for any damage to your
computer system or loss of data that results from the download of any
such company content or material.
13. Limitation of Liability
You expressly understand and agree that Company shall
not be liable for any direct, indirect, incidental, special, consequential, or
exemplary damages, including but not limited to, damages for loss of profits,
goodwill, use, data or other intangible losses (even if Company has
been advised of the possibility of such damages), resulting from: (i) THE USE OR THE INABILITY TO USE THE
WEBSITE; (ii) the cost of procurement of substitute products and
Service resulting from the inability to access or utilize any
products, data, information or Service purchased or obtained or messages
received or transactions entered into through or from the Website or the
Service; (iii) unauthorized access to or alteration of your
transmissions or data; or (iv) any other matter relating to the
Website or the Service. in no event shall Company's total liability to you
for all damages, losses, and causes of action (whether in contract, tort
(including, but not limited to, negligence), or otherwise exceed the amount
paid by you, if any, for accessing the Website or the Service.
Some jurisdictions do not allow the exclusion of certain
warranties or the limitation or exclusion of liability for incidental or
consequential damages. Accordingly, some of the above limitations may not apply
to you.
14. Assignment
This Agreement may not be assigned by you to any other party
without Company's prior written consent, but is nevertheless binding on your
assignees, heirs, and personal representatives.
15. Term and Termination
This Section does not apply to the Consent to Communications
(Section 3) and the Dispute Resolution and Arbitration (Section 4) provisions
of this Agreement, which are only binding on you if you have provided your
Express Written Consent (as defined above) to this Agreement.
In addition to any other method of termination, suspension, or
survival provided for in this Agreement, Company reserves the right to
terminate this Agreement at any time and for any reason upon ten (10) days'
notice to you. Further, you agree that Company shall not be liable to you or
any third-party for any termination or suspension of your access to the Website
or any part thereof, removal of Content or sale of any products. You may terminate
this Agreement at any time by immediately discontinuing all access to the
Website and by providing notice to Company of such discontinuance. Termination
or cancellation of this Agreement shall not affect any right or relief to which
Company may be entitled at law or in equity. Upon termination of this
Agreement, you shall terminate all use of the Website and any Content provided
thereby. In the event of termination, you will not be entitled to any refund of
any fees or other charges, if any, paid in connection with this Agreement.
16. Governing Law and Other Miscellaneous Terms
Except as otherwise set forth in the Agreement, specifically in
the Dispute Resolution and Arbitration (Section 4) provision, the validity and
effect of the Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Missouri, USA, without regard to its
conflicts of laws principles. In the event litigation is instituted hereunder,
each user consents to the exclusive jurisdiction of any federal or state court
situated in or serving St. Louis County, Missouri, as Company selects in its
sole discretion. The prevailing party shall be entitled to recover its
attorneys' fees and court costs, together with any other relief awarded by a
court of competent jurisdiction, except as set forth in the Dispute Resolution
and Arbitration (Section 4) provision of this Agreement. Any suit, action
or proceeding concerning the Website, its use, these terms of use, or
concerning any other policy or procedure of Company, must be brought in a
court of competent jurisdiction in Missouri, and you hereby irrevocably consent
to the jurisdiction of such court (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding; and you irrevocably waive,
to the fullest extent permitted by applicable law, any objection which you may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
17. Copyright and Copyright Notices
Company respects the intellectual property of others, and asks
its users to do the same. If you believe that your work has been copied in a
way that constitutes copyright infringement, please provide Company's copyright
agent the following information:
á
an electronic or physical signature of the owner or person
authorized to act on behalf of the owner of the copyright interest;
á
a description of the copyrighted work that you claim has been
infringed;
á
a description of where the material that you claim is infringing
is located on the Website sufficient to
á
allow Company to locate the allegedly infringing material;
á
your address, telephone number, and email address;
á
a statement by you that you have a good faith belief that the
disputed use is not authorized by the copyright owner, its agent, or the law;
and
á
a statement by you, made under penalty of perjury, that the
above information in your notice is accurate and that you are the copyright
owner or authorized to act on the copyright owner's behalf.
Please contact Company's copyright agent for notice of claims of
copyright infringement at: support@tutorgigs.io. Copyright owners and agents acknowledge that failure to
comply with all of the requirements of the foregoing may result in an
invalidity of the DMCA notice.
If you believe that the User Content that was removed (or to
which access was disabled) is not infringing, or that you have authorization
from the copyright owner, the copyright owner's agent, or pursuant to the law,
to post and use the User Content, you may send a counter-notice containing the
following information to the copyright agent:
á
your physical or electronic signature;
á
identification of the User Content that has been removed or to
which access has been disabled and the location at which the User Content
appeared before it was removed or disabled;
á
a statement that you have a good faith belief that the User
Content was removed or disabled as a result of mistake or a misidentification
of the User Content; and
á
your name, address, telephone number, and e-mail address, a
statement that you consent to the jurisdiction and venue of the federal court
in the Eastern District of Missouri and a statement that you will accept
service of process from the person who provided notification of the alleged
infringement.
If a counter-notice is received by the copyright agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the person providing such User Content, the removed User Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice at Company's sole discretion.