1. General Terms
UPickLearning provides this Site to users seeking tutoring services (“Students”) and to users seeking to provide tutoring services (“Instructors”), and to any other entity on whose behalf users accept these Terms. The term “you” or “You” or “User” or “Users” shall refer to Students, Tutors or any person or entity who views, uses, accesses, browses or submits any content or material to the Site. These Terms are entered into, by and between UPickLearning and you, and you accept them by: (a) contracting for tutoring lessons through the Site; (b) using the Site in any other manner; and/or (c) acknowledging agreement with these Terms. If you do not agree to these Terms, please do not use the Site.
To the extent that anything in or associated with the Site is in conflict or inconsistent with these Terms, the Terms shall control. Any express waiver or failure to exercise promptly any right under the Terms will not create a continuing waiver or any expectation of non-enforcement. If any provision of the Terms is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Terms will remain in full force and effect.
BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE, YOU MAY NOT USE THE SERVICE.
The Site offers a marketplace for those seeking tutoring services to connect with those seeking to provide tutoring services. Students are responsible for selecting the right tutor for their needs. The Site does not make a guarantee of any results but rather will put forth its best efforts to academically assist Students.
THE SITE HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICE PROVIDED TO USERS AND/OR INSTRUCTORS.
The benefits of the Site are available only while a Student’s account is active and in good standing. The Site reserves the right to modify the services and terms at any time and in its sole discretion and terminate a Student or Tutor at any time for any reason.
The Site will assign a user ID and a password upon registration. The user ID and password may only be used by user. Each user is solely responsible for maintaining and protecting the confidentiality of the user ID and password, and are fully responsible for all activities that occur under that user ID and password.
Accounts and Registration
To access some features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself (such as your name, credit card information, e-mail address, phone number or other contact information). You agree that the information you provide to us is accurate and that you will keep it up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and any password for Facebook, Google, or other third-party login. You accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, you must immediately notify us.
The Service may contain third-party advertising and marketing. By agreeing to these Terms you agree to receive such advertising and marketing.
Your Use of the Service
In order to use the Service, you agree to the following:
- The Service, including any content that forms part of the Service, contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including copyright;
- You will not violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right, or otherwise engage in the unauthorized use of any proprietary content, information or materials;
- Unless expressly permitted, you may not alter, modify, create derivative works of, sell, license or in any way exploit any part of the Service, and you agree not to copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Service without prior written authorization;
- You agree not to bypass any security or other features of the Service designed to control the manner in which the Service is used, harvest or mine content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human use;
- You agree not to perform any fraudulent activity, including impersonating any person or entity, or accessing any other Service account without permission;
- You agree not to decipher, reverse engineer, decompile or disassemble the Service, or the software used to provide the Service, in whole or in part, or authorize, direct, or cause a third party to do so;
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, or any portion thereof, unless and solely to the extent The Site makes available the means for embedding any part of the Service;
- You agree not to access, tamper with, or use non-public areas of the Service, The Site’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of FastFlip’ providers;
- You agree not to use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
- You agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that The Site is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using the Service;
- You agree that your use of the website may incur third-party fees, such as fees charged by your Carrier for data usage, and may be subject to third-party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms;
- You agree not to introduce viruses, time-bombs, worms, cancelbots, trojan horses and/or other harmful code into the Service;
The Site does not guarantee the accuracy, integrity, quality or appropriateness of any Content transmitted to or through the Service. You understand that all Content and Service Provider Content posted on, transmitted through or linked through the Service, are the sole responsibility of the person from whom such Content originated. You understand that The Site does not control, and is not responsible for Content or Service Provider Content made available through the Service. You agree that You must evaluate and make Your own judgment, and bear all risks associated with, the use of any Content and Service Provider Content.
4. Academic Honesty
You acknowledge and agree that UPickLearning’s services are provided for the purpose of facilitating learning, not cheating. You agree not to inquire about the hiring of or to hire tutors to complete assignments, write papers, take quizzes or otherwise do work on your behalf. Further, you agree not to use UPickLearning’s services for any purpose that violates the academic honesty policy or other conduct policies of your school, university, academic institution or workplace.
5. Your Obligations and Conduct
In consideration of your use of the Site, you agree: (a) that you are of legal age and have capacity to agree to these Terms on your own behalf or on behalf of a minor who will be receiving tutoring services; (b) to provide accurate, current, and complete information about you as may be prompted by a registration form on the website (“Registration Data”); (c) to maintain the security of your password and identification; (d) to maintain and promptly update the Registration Data and any information you provide to UPickLearning, to keep it accurate, current and complete; and (e) to accept all risks of unauthorized access to information and Registration Data. You are entirely responsible for all Content that you upload, post, or otherwise transmit through your use of the Site (“Content”). You agree not to upload, post or otherwise transmit Content that: (a) is inaccurate, harmful, obscene, pornographic, defamatory, racist, violent, offensive, harassing, or otherwise objectionable to UPickLearning or other users of the website; (b) includes unauthorized disclosure of personal information; (c) violates or infringes anyone’s intellectual property rights; or (d) 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. UPickLearning reserves the right to edit or remove Content that violates these Terms, that contains third-party commercial advertisements, or for any other reason it deems necessary.
You agree to use the Site in a manner that is lawful, relevant and proper to the applicable forum. Any use of the Site that UPickLearning, in its sole discretion, finds inappropriate and/or offensive may result in suspension and/or termination of a User with or without notice. Conduct that is inappropriate and/or offensive includes without limitation the following:
- Defame, abuse, harass, harm, stalk, threaten or otherwise violate the legal rights (including without limitation rights of privacy and publicity) of others;
- Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, hateful, distasteful, obscene or unlawful topic, name, information, materials or content;
- Use the Site for any purpose that is in violation of local, state, national, or international law, including without limitation wage/hour and working condition laws and regulations;
- Upload files that contain software or other material that violates the rights of any third party, including without limitation intellectual property rights or rights of privacy or publicity;
- Upload files that contain viruses, Trojan horses, worms, time bombs, spiders, cancel bots, corrupted files, or any other similar software, malware or materials that may damage, interfere with, disrupt, impair, disable or otherwise overburden the operation of any device, computer system or network;
- Take any action that would undermine any aspect of the Site;
- Attempt to gain unauthorized access to the Site, other User accounts, or other device, computer system or networks connected to the Site;
- Advertise or offer to sell any goods or services for any commercial purpose on the Site that are not appropriate or relevant to the Site;
- Impersonate another person or allow any other person or entity to use your user name, password or membership;
- Post the same content repeatedly or spam – spamming is strictly prohibited;
- Download any file posted by another user that you know, or reasonably should know, cannot be legally distributed through the Site;
- Access, download, or copy any information, content and/or materials from the Site through artificial means (including without limitation spiders, scrapers, hacking devices, computer programs, bots, web spoofing, URL rewriting or other such means);
- Reproduce, duplicate, copy, sell, re-sell or exploit any information, materials or content on the Site; or
- Restrict or inhibit any other user from using and enjoying the Site.
By using the Site, you represent and warrant that you currently meet and will continue to meet the following eligibility conditions (“Eligibility Conditions”) for as long as you use the Site: (a) you have and will at all times comply with all laws and regulations; (b) you have the right, authority and capacity to enter into these Terms and to abide by all of terms and conditions in these Terms; (c) neither you, nor anyone in your home: (i) has been the subject of a complaint, restraining order or any other legal action involving violence, abuse, neglect, fraud, larceny, or any offense that involves endangering the safety of others; (ii) has been convicted of a crime of any nature, including any felony or misdemeanor of any kind, including without limitation any sexual, child abuse or domestic violence offenses; and/or (iii) has been and/or is currently required to register as a sex offender in any jurisdiction or with any government entity; and (d) neither you, nor anyone in your home, is currently out on bail or on your own recognizance pending trial, relating to any felony or misdemeanor charges of any kind, including without limitation sexual, child abuse or domestic violence offenses.
By using the Site, you understand and agree that UPickLearning may rely on the above Eligibility Conditions representations and warranties as true. You understand and agree that UPickLearning may revise the Eligibility Conditions from time to time and require new conditions and certifications and that User will abide by such revised Eligibility Conditions or discontinue using the Site.
You hereby authorize UPickLearning to verify the above representations and warranties by you and you acknowledge and agree that UPickLearning shall have the right, but not the obligation, to verify such representations and warranties. You agree and understand that such verification may include, without limitation, conducting criminal background checks, sex offender registry checks, motor vehicle records checks, identification verifications, credit checks and/or use of available public records. You consent to any collection, use or disclosure in order to accomplish such verification. You further agree that UPickLearning may take such action as it, in its sole discretion, deems appropriate, including without limitation suspending and/or terminating your use of the Site, should it determine that you have violated any representation or warranty.
UPickLearning expressly disclaims, and you expressly release UPickLearning from, any and all liability whatsoever for any controversies, claims, suits, injuries and/or damages arising from and/or in any way related to: (a) any inaccuracy, untimeliness or incompleteness regarding a User’s Eligibility Conditions and/or (b) misstatements or misrepresentations made by any User.
UPickLearning reserves all of its rights under the Communications Decency Act, including without limitation its right to remove anything objectionable to UPickLearning in its sole discretion. Alleged improprieties by any User may be reported to UPickLearning by email at firstname.lastname@example.org.
6. Third Party Reports
UPickLearning may utilize third party consumer reporting agencies that perform, among other things, criminal background checks, sex offender registry checks, motor vehicle records checks, credit checks, and identification verifications (“consumer reports”). UPickLearning does not endorse or make any representations or warranties regarding the reliability of such consumer reports or the accuracy, timeliness or completeness of any information in the consumer reports. UPickLearning does not independently verify information in the consumer reports.
You hereby consent to UPickLearning collecting, using and disclosing the information in the consumer reports. You understand and agree that UPickLearning may, in its sole discretion, review and rely on the information in the consumer reports in deciding whether to suspend or terminate a User or to investigate a complaint about a User, but that UPickLearning shall not be responsible or liable in any way in the event that any information in the consumer reports about any person, including without limitation any User, is not accurate, timely or complete. Users who are the subject of consumer reports may contact the service provider to dispute the accuracy, timeliness or completeness of such information. UPickLearning reserves the right to suspend and/or terminate User based on information in the consumer reports or for any other reason in UPickLearning’s sole discretion.
7. Confidentiality of UPickLearning Information
You may obtain direct access via the Site to certain confidential information of UPickLearning and its affiliates, including without limitation technical, contractual, product, program, pricing, marketing and other valuable information that should reasonably be understood as confidential (“Confidential Information”). You must hold Confidential Information in strict confidence. All right, title and interest in the Confidential Information remains with UPickLearning and its affiliates.
The Terms impose no obligation upon you with respect to Confidential Information that you can establish by legally sufficient evidence: (a) you possessed prior to your receipt from UPickLearning, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public through no act or omission by you, or otherwise without violation of the Terms; (c) you obtained from a third party who had the right to disclose it, without an obligation to keep such information confidential; (d) you independently developed without the use of Confidential Information and without the participation of individuals who have had access to it, or (e) in response to a valid order by a court or other governmental body, or as otherwise required by law, or as necessary to establish the rights of either party under these Terms and as disclosed after prior notice to UPickLearning adequate to afford UPickLearning the opportunity to object to the disclosure.
8. Terms of Transacting Business
You understand and agree to abide byUPickLearning’s instructor and student payment policies. You agree that you are willing to pay all costs associated with the services through UPickLearning. These costs include but are not limited to: (a) a UPickLearning’s hourly rate as listed; (b) cancellation fees as described in UPickLearning’s cancellation policy, which can be found on the payment page on the Site; (c) materials purchased from UPickLearning.
9. Content Provided via Links
You may find links to other websites or resources on the Site. You acknowledge and agree that UPickLearning is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. UPickLearning will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
10. Intellectual Property Rights
UPickLearning grants you permission (which may be revoked at any time for any reason or no reason) to use the Site for the services as provided herein and in accordance with these Terms and solely for your own personal, non-commercial use (except as provided herein), provided you do not remove any trademark, copyright or other notice contained on such pages. No other use is permitted. You may not, for example, incorporate the information, content, or other material in any database, compilation, archive or cache. Except as specifically authorized by UPickLearning, you may not deep-link to the Site for any purpose or access the Site manually or with any robot, spider, web crawler, extraction software, automated process or device to scrape, copy, or monitor any portion of the Site or any information, content, or material on the Site. UPickLearning reserves all of its statutory and common law rights against any person or entity who violates this paragraph. You may not link or frame to any pages of the Site or any content contained therein, whether in whole or in part, without prior written consent from UPickLearning. You may like or follow UPickLearning or share links to the Site via social networking technology referenced on the Site. Any rights not expressly granted herein are reserved.
Except as expressly authorized by UPickLearning or by Content providers, you agree not to reproduce, modify, rent, lease, loan, sell, distribute, mirror, frame, republish, download, transmit, or create derivative works of the Content of others, in whole or in part, by any means. You must not modify, decompile, or reverse engineer any software UPickLearning discloses to you, and you must not remove or modify any copyright or trademark notice, or other notice of ownership.
“UPickLearning Trademarks” means all names, marks, brands, logos, designs, trade dress, slogans and other designations UPickLearning uses in connection with its products and services. You may not remove or alter any UPickLearning Trademarks, or co-brand your own products or material with UPickLearning Trademarks, without UPickLearning’s prior written consent. You acknowledge UPickLearning’s rights in UPickLearning Trademarks and agree that any use of UPickLearning Trademarks by you shall inure to UPickLearning’s sole benefit. You agree not to incorporate any UPickLearning Trademarks into your trademarks, service marks, company names, internet addresses, domain names, or any other similar designations, for use on or in connection with computer or internet-related products, services or technologies.
Unless explicitly stated herein, nothing in these Terms shall be construed as conferring any license to intellectual property rights, whether by estoppels, implication, or otherwise. Permission is granted to display, copy, distribute and download Content owned by UPickLearning on this Site provided that: (a) the copyright notice pertaining to the Content remains, and a permission notice (e.g., “used with permission”) is added to such Content; (b) the use of such Content is solely for personal and non-commercial use; (c) such Content will not be copied or posted on any networked computer or published in any medium, except as explicitly permitted by valid permission or license covering such materials; and (d) no modifications are made to such Content. This permission terminates automatically without notice if you breach any of the terms or conditions in this document. Upon termination, you must immediately destroy any downloaded and/or printed Content.
11. Copyright Infringement
UPickLearning respects the intellectual property of others, and we ask our users to do the same. UPickLearning reserves the right, in its discretion, to remove any Content if we believe it may infringe the copyright rights of others, and/or to terminate the accounts of Users who we believe to be infringers.
If you believe that your work has been copied and posted on the Site in a way that constitutes copyright infringement, we will respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act of 1998 (the “DMCA”), a federal law that 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 content or material hosted on the Site infringes your copyright, you (or your agent) may send UPickLearning a notice requesting that the content or material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed (or if multiple copyrighted works are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow UPickLearning to locate the content or material within the Site; (d) the name, address, telephone number and email address (if available) of the complaining party; (e) a statement that the complaining party has a good faith belief that use of the content or material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see http://www.loc.gov/copyright for details.
12. Termination and Suspension
UPickLearning reserves the right to suspend and/or terminate any user with or without notice at any time in its sole discretion, for any reason or no reason. You agree that, if you are suspended and/or terminated, you will make no further use of the Site after termination or during suspension.
13. Disclaimer of Warranties
USE OF THE SITE IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE SITE, INCLUDING THE INFORMATION, SERVICES, AND CONTENT, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. U PICK LEARNING DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. U PICK LEARNING MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE SITE.
U PICK LEARNING MAKES NO WARRANTY OR REPRESENTATIONS THAT: (A) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (B) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; (C) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM TUTORS WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (D) ANY ERRORS IN THE SITE WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT FROM THE SITE, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
14. Limitation of Liability
THE SITE OFFERS A MARKETPLACE FOR THOSE SEEKING TUTORING SERVICES TO CONNECT WITH THOSE SEEKING TO PROVIDE TUTORING SERVICES.
YOU UNDERSTAND AND AGREE THAT U PICK LEARNING HAS NO CONTROL OVER THE ACTS OR OMISSIONS OF ANY USER ON OR OFF THE SITE. YOU UNDERSTAND AND AGREE THAT U PICK LEARNING IS NOT RESPONSIBLE FOR THE PERFORMANCE OR CONDUCT, WHETHER ON OR OFF THE SITE, OF ANY USER. AS SUCH, U PICK LEARNING EXPRESSLY DISCLAIMS, AND EACH USER EXPRESSLY RELEASES U PICK LEARNING FROM, ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO THE SITE, INCLUDING WITHOUT LIMITATION ANY ACTS AND/OR OMISSIONS OF USERS ON OR OFF THE SITE.
USERS OF THE SITE TRANSACT BETWEEN THEMSELVES. U PICK LEARNING WILL NOT BE INVOLVED IN ANY USER INTERACTIONS.U PICK LEARNING IS NOT RESPONSIBLE FOR DISPUTES, CLAIMS, LOSS, INJURY, OR DAMAGE OF ANY KIND THAT MIGHT ARISE DURING AND AFTER USER INTERACTION.
TO THE FULL EXTENT PERMITTED BY LAW, U PICK LEARNING IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE SITE, EVEN IF U PICK LEARNING HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (A) THE USE OF OR THE INABILITY TO USE THE SITE; (B) THE COST OR PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SITE; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSION OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, OR FALSE OR FRAUDULENT TRANSACTIONS; OR (D) CONTENT OR INFORMATION USERS MAY DOWNLOAD, USE, MODIFY, OR DISTRIBUTE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL U PICK LEARNING’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 (A) THE AMOUNT PAID BY YOU TO U PICK LEARNING OR A U PICK LEARNING PARTNER, IF ANY, OR (B) $100 (WHICHEVER IS LESS).
YOU AND U PICK LEARNING AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND U PICK LEARNING AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THESE TERMS ARE FAIR AND REASONABLE.
IF YOU ARE DISSATISFIED WITH THE SITE OR DO NOT AGREE TO ANY PROVISIONS OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE, EXCEPT AS MAY BE PROVIDED FOR IN THIS SECTION 18.
15. Assumption of Risk
You agree and understand that you assume all risks when using the Site, including without limitation any and all of the risks associated with any online or offline interactions with other Users.
Any controversy, claim, suit, injury or damage arising from or in any way related to the Site, its use, its User (e.g. Tutor, Student) conduct, or the Terms shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) then in effect, which can be obtained at any AAA office, at www.adr.org, or by calling the AAA at 1-800- 778-7879. If there is any inconsistency between the AAA Rules and this arbitration provision, the terms of the arbitration provision will control unless the arbitrator determines that the application of the inconsistent terms would result in a fundamentally unfair arbitration. This arbitration provision will be construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. §1 et seq.
UPickLearning and you will attempt to agree on a single arbitrator. If agreement is not possible, each party will select its own arbitrator. Each party’s arbitrator will, in turn, confer and select a single arbitrator. The arbitrator will base the decision on the evidence presented and in accordance with these Terms and governing law, including statutory and judicial authority. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms and applicable law. The arbitrator will issue a written decision, which will contain the essential findings and conclusions on which the decision is based. The arbitrator’s decision will be final and binding upon all parties.
YOU AND U PICK LEARNING AGREE THAT EACH OF US MAY BRING CLAIMS, SUIT, INJURY, HARM, LOSS OR DAMAGE AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND U PICK LEARNING AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER U PICK LEARNING USERS.
The arbitration shall be conducted at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and the judgment of the arbitration award may be entered by any court having jurisdiction thereof.
Each party will pay its own attorneys’ fees, subject to any remedies to which that party may later be entitled under applicable law. You will bear only those costs of arbitration that you would have borne had you brought a claim covered by this arbitration provision in court. If you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Wyzant will pay as much of the arbitration fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
Notwithstanding anything to the contrary, disputes may be brought before an administrative agency to the extent applicable law requires access to an agency notwithstanding the existence of this arbitration provision. Nothing in this arbitration provision shall be construed to: (i) relieve any party of the duty to exhaust administrative remedies by filing a charge or complaint with an administrative agency and obtaining a right to sue notice, where otherwise required by law; or (ii) prevent either party from cooperating with a federal or state body as required by law. However, you understand that you are not entitled to a double recovery or eligible to receive any monetary benefit from any action brought by an administrative agency except as required by law.
To commence an arbitration against UPickLearning, you must complete a short form, submit it to the AAA, and send a copy to UPickLearning. For more information, see the AAA’s claim filing page, http://www.adr.org. You may represent yourself in the arbitration or be represented by an attorney or another representative. Once we receive your arbitration claim, we may assert any counterclaims we may have against you.
In the event that a tribunal or arbitrator of competent jurisdiction determines that the arbitration provision is unenforceable, you agree that the exclusive forum and/or venue for any controversy, claim, suit, injury, harm, loss or damage arising from or in any way related to the use, inability to use or provision of these Terms shall be any Illinois State Court or Federal Court sitting in Cook County, and you hereby submit to the exclusive jurisdiction of those courts for purposes of any such proceeding. You and UPickLearning agree that any dispute is personal to you and UPickLearning and that any such controversy, claim, suit, injury, harm, loss or damage shall be brought on an individual basis, and shall not be consolidated with any controversy, claim, suit, injury, harm, loss or damage of any other party. However, this representative action waiver may be severed if it would otherwise render these Terms unenforceable.
You agree that any material breach of the Terms will result in irreparable harm to UPickLearning for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, UPickLearning will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if UPickLearning seeks such an injunction.
19. Notices; Modification and Termination of Services; Amendment of Terms
UPickLearning may provide notice to Users via email, regular mail, or posting notices or links to notices on the Site. UPickLearning reserves the right at any time to modify, suspend or terminate the services (or any part thereof), and/or use of or access to them, with or without notice. UPickLearning may also delete, or bar access to or use of, all related information and files. UPickLearning will not be liable to Users or any third-party for any modification, suspension, or termination of service, or loss of related information. UPickLearning may amend these Terms at any time by posting the amended terms on this Site.
20. Governing Law
This Agreement shall be governed by and construed in accordance with the substantive laws, without regard to choice of law rules, of the State of Florida.
21. Entire Agreement
These Terms constitute the entire agreement between you and UPickLearning relating to their subject matter, and cancel and supersede any prior versions of the Terms. You may not assign or otherwise transfer the Terms or any right granted hereunder. You also may be subject to additional terms and conditions that may apply when you use UPickLearning or third-party products or services.