These Terms of Use govern the use of the platform offered by Excelsi Global Inc., a New York corporation (“we” or “us”) on our website (the “Site”) and/or mobile applications. The services provided by us, the Site and any mobile applications we offer are hereinafter collectively referred to as the “Platform.”

Your use of the Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Use and the Privacy Policy (the “Privacy Policy”) available on the Site, and any future amendments and additions to this Agreement (as defined below) as we may publish from time to time. Each time you use the Platform, you agree to the then-current version of the Terms of Use. You represent and warrant that you are (i) at least the age of majority in the jurisdiction where you reside or (ii) if you have not reached the age of majority in the jurisdiction where you reside, that you have received permission to use the Services from your parent or legal guardian. Where you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. You are required to agree to and accept these Terms of Use, the Privacy Policy and our policies and procedures available on the Platform, as amended from time to time (the “Policies”) in order to access and use the Platform.

 

The Privacy Policy and the Policies are incorporated by reference into these Terms of Use and these Terms of Use, the Privacy Policy, the Policies together are hereinafter referred to as this “Agreement”.

These Terms of Use include:

• Your agreement that the Platform is provided “as is” and without warranty (Section 3(g)).
• Your agreement that we have no liability regarding the Platform (Section 3(h)).
• Your acknowledgment and agreement that we do not supervise, direct or control a Provider’s work or the Tutoring Services in any manner (Section 1(a)) and we have no liability regarding the performance of Tutoring Services.
• Your consent to release us from liability based on claims between Users (Section 1(b)) and generally (Section 3(h)).
• Your agreement to indemnify us from claims due to your use or inability to use the Platform or content submitted from your Account to the Platform (Section 4(d)).
• Your consent that you and we have the right to compel arbitration (Section 4(e)).
• Your consent that no claims can be adjudicated on a class basis (Section 4(e)).

 

The Children’s Online Privacy Protection Act of 1998, as amended (“COPPA”) requires that online service providers obtain parental consent before collection personal information from children under the age of 13. If you are a school or tutor providing the Services to children under the age of 13, you represent and warrant that you have obtained the required parental consent prior to providing the Services to users under the age of 13.

1. Platform Overview

 

1. Platform Connects Students and Providers. The Platform is a web-based communications platform which enables connections between Students and Providers. “Students” are users seeking tutoring services (“Tutoring Services”), and “Providers” are users seeking to provide Tutoring Services to Students. Students and Providers together are hereinafter referred to as “Users.”

 

WE DO NOT PERFORM TUTORING SERVICES AND DO NOT EMPLOY INDIVIDUALS TO PERFORM TUTORING SERVICES. ALL PROVIDERS ARE INDEPENDENT CONTRACTORS ENGAGED DIRECTLY BY STUDENTS. WE DO NOT SUPERVISE, DIRECT OR CONTROL A PROVIDER’S WORK OR THE TUTORING SERVICES IN ANY MANNER, WHICH YOU HEREBY ACKNOWLEDGE.

The Platform only enables connections between Users for the provision of Tutoring Services by Providers to Students. We are not responsible for the performance of Users, nor do we have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of Tutoring Services or Providers, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users.

The Platform may host User Generated Content (as defined hereinafter) relating to reviews and ratings of specific Providers (“Feedback”). Such Feedback is such User’s opinion, not our opinion, and has not been verified or approved by us. As such, each Student should undertake their own research prior to engaging a Provider. You agree that we are not liable for any Feedback or other User Generated Content. We encourage each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. We do not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that we do so.

IF A STUDENT IS YOUNGER THAN 18 YEARS OLD, ALL TUTORING SESSIONS SHOULD BE SUPERVISED BY A RESPONSIBLE ADULT.

1. User Vetting. Users may be subject to a vetting process before they can register for and during their use of the Platform, including, but not limited to, a verification of identity and credentials, using third party services as appropriate. You hereby give consent to us to conduct background checks as often as required in compliance with federal and state laws, including, without limitation, the Fair Credit Reporting Act.

 

Although we may perform background checks of Users as outlined above, we cannot confirm that each User is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of identity or background check information or any information provided through the Platform.

When interacting with other Users, you should exercise caution and common sense to protect your personal safety, personal information, and property, just as you would when interacting with other persons whom you don’t know. NEITHER WE NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE US AND OUR EMPLOYEES, OFFICERS, DIRECTORS, MANAGERS, REPRESENTATIVES, AGENTS, AND OUR AND THEIR AFFILIATES AND LICENSORS (“RELEASED PARTIES”) FROM ANY LIABILITY RELATED THERETO. THE RELEASED PARTIES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE PLATFORM.

If you are a Provider, you represent and warrant that you hold a valid teacher and/or educator certification and/or license for the jurisdiction in which you reside, and you covenant and agree that you will maintain such certification and/or license throughout the duration of your use of the Platform. If at any time you do not hold a valid certification and/or license, you agree to cease using the Platform and to notify us.

1. You acknowledge and agree that payments for all Tutoring Services shall be processed through the Platform, and you agree not to process such payments in any other manner. Furthermore, if another User suggests moving payment for a Tutoring Service outside of the Platform, you agree to immediately notify us. Your violation of this provision will result in the automatic termination of your Account and eliminate your rights to collect any amounts due to you hereunder. If you are a Student, you agree to hire and process payment with any Provider you first connect with on the Platform exclusively through the Platform for the duration of your relationship with such Provider.

 

1. We may record all tutoring sessions that take place on the Platform for quality assurance and/or monitoring purposes. By engaging in Tutoring Services on the Platform, either as a Student or a Provider, you acknowledge and agree to the recording of such sessions.

 

1. We may offer Users services of our own on or through the Platform (“Services”). We may require such Services to be paid for on a recurring basis (“Subscription Services”) or on an as-used basis (“A La Carte Services” and, together with the Subscription Services, “Paid Services”). We have the right to change, delete, discontinue or impose conditions on Paid Services or any feature or aspect of a Paid Service. Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes as set forth in your Account settings or as otherwise agreed in writing (“Subscription Fee”). A La Carte Services may subject you to fees charged per usage and/or terms. By using an A La Carte Service, you agree to pay the fees and any taxes incurred at the time of usage (“A La Carte Fees” and, together with Subscription Fees, the “Paid Service Fees”).

 

Paid Service Fees may be paid by credit card, debit card, or other payment forms we may permit. If you link a debit or credit card to your Account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card.

Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged on the 1st of every month until cancelled. You may cancel a Subscription Service at any time from your Account settings. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee upon thirty (30) days’ advance notice. Your continued use of Subscription Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.

 

2. Student Payment Policies

 

1. Contract between Students and Providers. Students can hire Providers for Tutoring Services on the Platform by searching available Providers and scheduling a tutoring session (a “Session”) with the Provider of the Student’s choice. We encourage Students to have a thorough conversation with any proposed Provider about Tutoring Services expectations prior to engaging the Provider.

 

1. Payment for Sessions. The Student shall pay for completed Sessions when and at the rate indicated on the Platform, in accordance with the Policies. Any cancellation policy will be set by the Provider. Users of the Platform contract for Tutoring Services directly with other Users. We will not be a party to any contracts for Tutoring Services. Students agree to maintain an active valid form of payment on their Account. If you are a Student, you acknowledge and agree that notwithstanding the fact that we are not a party to any agreement between you and a Provider, we act as the Provider’s payment collection agent for the limited purpose of accepting payments from you on behalf of the Provider. Upon your payment to us of the full amount of any particular transaction, your payment obligation to the Provider is extinguished. We may use third party payment processors, which such processors may require acceptance of their own terms and conditions and privacy policy in order for the Platform to function.

 

1. Appointment as Limited Payment Collection Agent. If you are a Provider, you appoint us as your limited payment collection agent solely for the purpose of accepting revenues from Tutoring Services provided to Students. You agree that payment made from a Student to us will be considered the same as a payment made directly to you as a Provider. Our obligation to pay Providers is subject to and conditional upon successful receipt of associated payments from Students. In accepting appointment as the limited authorized agent of Provider, we assume no liability for any of the Provider’s acts or omissions.

 

 

 

3. Your Relationship with Us

 

1. Release. The Platform is only a venue for connecting Users. Because we are not involved in the actual Service Agreement between Users or in the provision of Tutoring Services, in the event that you have a dispute with one or more Users, you release us and our affiliates (and our and their respective officers, directors, agents, investors, subsidiaries, and employees) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN USERS OF THE PLATFORM, WITH THE EXCEPTION OF OUR ROLE AS A LIMITED PAYMENT COLLECTION AGENT FOR PROVIDERS.

TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

1. Public Areas; Acceptable Use. The Platform may contain profiles, email systems, blogs, message boards, applications, postings for Tutoring Services, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum. For the safety and integrity of the Platform, you may not share your personal contact information with other Users except as permitted by the Policies or unless the sharing of personal contact information is a feature introduced on the Platform.

 

Without limitation, while using the Platform, you may not:

• Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including our staff, or use information learned from the Platform or during the performance of Tutoring Services to otherwise defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of any other User or our staff outside of the Platform.
• Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
• Use the Platform for any purpose, including in violation of local, state, national, or international law.
• Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
• Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer.
• Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly.
• Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the Tutoring Services offered through the Platform.
• Conduct or forward surveys, contests, pyramid schemes, or chain letters.
• Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments.
• Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Platform.
• Restrict or inhibit any other User from using and enjoying the Public Areas.
• Imply or state that any statements you make are endorsed by us without our prior written consent.
• Use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Platform in any manner.
• Hack or interfere with the Platform, its servers or any connected networks.
• Adapt, alter, license, sublicense or translate the Platform for your own personal or commercial use.
• Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks and rights owned by us.
• Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
• Upload content that provides materials or access to materials that are violent or of a sexual nature.
• Use the Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Platform as set forth herein.
• Use the Platform to collect usernames and or/email addresses of Users by electronic or other means.
• Use the Platform in violation of the Policies.
• Use the Platform in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining our trade secret information for public disclosure or other purposes.
• Attempt to circumvent the payments system or service fees in anyway including, but not limited to, processing payments outside of the platform, including inaccurate information on invoices, or otherwise invoicing in a fraudulent manner;
• Register under different usernames or identities, after your Account has been suspended or terminated or register under multiple usernames or identities.
• Cause any third party to engage in the restricted activities above.

 

You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas, and we will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.

1. Termination and Suspension. We may terminate or suspend your right to use the Platform if we believe that you have breached this Agreement (a “User Breach”) by providing you with written or email notice of such User Breach and such termination or suspension, and termination or suspension will be effective immediately upon delivery of such notice.

 

If we terminate or suspend your right to use the Platform as a Student for a User Breach, you will not be entitled to any refund of any unused balance in your Account, and you are prohibited from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

Even after your right to use the Platform is terminated or suspended, this Agreement will remain enforceable against you.

We reserve the right to modify or discontinue, temporarily or permanently, all or any portion of the Platform at our sole discretion, including your right to use the Platform, for any reason in our sole discretion. Except for refundable fees you have advanced to us (if any), we are not liable to you for any modification or discontinuance of all or any portion of the Platform. Notwithstanding anything to contrary in this Section 3(c), we have the right to restrict anyone from completing registration as a Provider if we believe that such person may threaten the safety and integrity of the Platform, or if, in our sole discretion, such restriction is necessary to address any other reasonable business concern.

You may terminate this Agreement at any time by ceasing all use of the Platform and by cancelling your Account (as hereinafter defined). All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.

1. Account, Password, Security and Mobile Phone Use. You must register with us and create an account to use the Platform (your “Account”). You (including your parent or legal guardian, if you are a minor) are the sole authorized user of your Account. You are responsible for maintaining the confidentiality of any login information provided by you or us for accessing the Platform. You are solely and fully responsible for all activities that occur under your password or Account. We have no control over the use of any User’s Account and expressly disclaim any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or Account or you suspect any other breach of security, you will contact us immediately.

 

By providing your mobile phone number and using the Platform, you hereby affirmatively consent to our use of your mobile phone number for calls and texts in order to perform and improve upon the Platform. We will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving text messages from us by modifying your account settings on the Platform.

 

1. Worker Classification and Withholdings. WE DO NOT PERFORM TUTORING SERVICES AND DO NOT EMPLOY INDIVIDUALS TO PERFORM TUTORING SERVICES. Each User assumes all liability for proper classification of such User’s workers based on applicable legal guidelines.

 

Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of us. Each User acknowledges that we do not, in any way, supervise, direct, or control a Provider’s work or Tutoring Services performed in any manner. We do not set a Provider’s work hours or location of work. We will not provide any equipment, labor or materials needed for the provision of Tutoring Services. We do not provide any supervision to Users. The Platform is not an employment service and we are not an employer of any User. As such, we are not responsible for and will not be liable for any tax payments or withholding, including but not limited to unemployment insurance, social security, disability insurance or any other applicable federal or state withholdings.

You agree to indemnify, hold harmless and defend us, our employees, agents, managers, officers, directors, and affiliates (our “Affiliates”) from any and all claims that a Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Provider was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that we were an employer or joint employer of a Provider, any claims under any applicable employment-related laws, such as, without limitation, those relating to employment termination, employment discrimination, harassment or retaliation, as well as, without limitation, any claims for unpaid wages, withholdings, overtime pay, failure to provide meal and rest breaks, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits.

1. Intellectual Property Rights. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the Platform is owned by us, excluding User Generated Content that we have the right to use. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without our express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without our prior permission and, if applicable, the holder of the rights to the User Generated Content.

 

Our service marks and trademarks, including without limitation, our logos are service marks owned by us. Any other trademarks, service marks, logos and/or trade names appearing via the Platform are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.

 

1. Disclaimer of Warranties. USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK.

 

THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED THROUGH THE PLATFORM OR THE CONTENT OF ANY SITES LINKED TO THE PLATFORM AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE PLATFORM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN. WE DO NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE PLATFORM OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, OTHER THAN AS PROVIDED HEREIN. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

WITHOUT LIMITING THE FOREGOING, NEITHER US NOR OUR AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THE PLATFORM WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY TUTORING SERVICE OR SERVICE, INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE PLATFORM.

NEITHER US NOR OUR AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER.

NEITHER WE NOR OUR AFFILIATES OR LICENSORS WARRANT THAT THE PLATFORM IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS.

WE AND OUR AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED OR USED BY OTHERS.

IN ADDITION, NOTWITHSTANDING ANY FEATURE A STUDENT MAY USE TO EXPEDITE SELECTION, EACH STUDENT IS RESPONSIBLE FOR SELECTING THEIR PROVIDER AND WE DO NOT WARRANT ANY GOODS OR SERVICES PURCHASED BY A STUDENT AND DOES NOT RECOMMEND ANY PARTICULAR PROVIDER. WE DO NOT PROVIDE ANY WARRANTIES OR GUARANTEES REGARDING ANY PROVIDER’S PROFESSIONAL ACCREDITATION, REGISTRATION OR LICENSE.

100. Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE THE PLATFORM IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, YOU AGREE NOT TO HOLD US, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE PLATFORM, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT THAT IS SEXUAL OR OTHERWISE, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY), ANY DISPUTE WITH ANY USER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY US OR OUR AFFILIATES OR LICENSORS AND ANY DESTRUCTION OF YOUR INFORMATION. UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, OUR LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE PLATFORM OR THE TUTORING SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED VIA THE PLATFORM. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT WE OR OUR PARTNERS IN PROMOTIONS, SWEEPSTAKES OR CONTESTS, AFFILIATES, OUR LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED $100.

 

4. Miscellaneous

 

1. You agree that we have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform (for example, anonymous and aggregated information concerning User behavior and use of the Services), and we will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other of our offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. Any use or disclosure of such information that pertains to a user under the age of 13 shall be done in compliance with COPPA.

 

1. Copyright Complaints and Copyright Agent. We respect the intellectual property of others, and expect Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Platform infringe upon your copyright or other intellectual property right, please send the following information to our copyright agent at contact@goexcelsi.com.

• A description of the copyrighted work that you claim has been infringed, including the URL (Internet address) or other specific location on the Platform where the material you claim is infringed is located. Include enough information to allow us to locate the material, and explain why you think an infringement has taken place;
• A description of the location where the original or an authorized copy of the copyrighted work exists — for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
• Your address, telephone number, and e-mail address;
• 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;
• A statement by you, made under penalty of perjury, that the information in your notice is accurate, and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
• An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.

 

1. Your Information and Likeness. “Your Information” is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Platform, including without limitation that is posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section 4(b), as provided by each User, is collectively referred to herein as “User Generated Content”.

 

You hereby represent and warrant to us that Your Information (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; and (h) will not create liability for us or cause us to lose (in whole or in part) the services of its ISPs or other partners or suppliers.

You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyright, publicity rights, and any other rights you have in Your Information, in any media now known or not currently known in order to perform and improve upon the Platform.

Each Provider hereby waives all rights and releases us from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such Provider’s identity, likeness or voice in connection with the Platform.

1. Links to Other Websites. The Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute the endorsement by us of those sites or their content. They are provided as an information service, for reference and convenience only. We do not control any such sites, and is not responsible for their (1) availability or accuracy, or (2) content, advertising, or products or services. The existence of links on the Platform to such websites (including without limitation external websites that are framed by the Platform as well as any advertisements displayed in connection therewith) does not mean that we endorse any of the material on such websites, or has any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites.

 

The use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use and privacy policies for those websites, and not by our Terms of Use or Privacy Policy. You access such third-party websites at your own risk. We expressly disclaim any liability arising in connection with your use and/or viewing of any websites or other material associated with links that may appear on the Platform. You hereby agree to hold us harmless from any liability that may result from the use of links that may appear on the Platform.

As part of the functionality of the Platform, you may have the ability to link your account with online accounts you may have with third party service providers (such as Facebook) (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information through the Platform; or (ii) allowing us to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers. By granting us access to any Third Party Accounts, you understand that (i) we may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “SNS Content”) so that it is available on and through the Platform via your account, including without limitation any friend lists, and (ii) we may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Unless otherwise specified in these Terms of Use, all SNS Content, if any, shall be considered to be User Generated Content for all purposes of these Terms of Use. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Platform. Please note that if a Third Party Account or associated service becomes unavailable or our access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Platform. You will have the ability to disable the connection between your account on the Platform and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. We make no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and we are not responsible for any SNS Content. You acknowledge and agree that we may access your e-mail address book associated with a Third Party Account and your contacts list stored on your mobile device or tablet computer solely for the purposes of identifying and informing you of those contacts who have also registered to use the Platform. At your request made via e-mail to contact@goexcelsi.com we will deactivate the connection between the Platform and your Third Party Account and delete any information stored on our servers that was obtained through such Third Party Account, except the username and profile picture that become associated with your account.

 

1. Indemnification. You hereby agree to indemnify, defend, and hold harmless us and our Affiliates from and against any and all claim, loss, expense or demand of liability, including attorneys’ fees and costs incurred, in connection with (i) your use or inability to use the Platform, (ii) any content submitted by you or using your account to the Platform, including, but not limited to the extent such content may infringe on the intellectual rights of a third party or otherwise be illegal or unlawful, or (iii) any Tutoring Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without our written consent.

 

1. Dispute Resolution. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM us. For any dispute with us, you agree to first contact us at contact@goexcelsi.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at jamsadr.com. The arbitration will be conducted in New York, New York, unless you and we agree otherwise. If you are using the Site for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Site for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this paragraph shall prevent us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights, or other proprietary rights.

 

1. Governing Law. This Agreement is governed by New York law, without giving effect to conflicts of law principles. You agree that, to the extent applicable and expressly subject to the dispute resolution provisions below, to submit to the exclusive jurisdiction of the state and federal courts located in New York in circumstances where this Agreement permits litigation in court.

 

1. General Provisions. Our failure to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and us with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. This Agreement may not be assigned or transferred by you without our prior written approval. We may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 4(g) shall be null and void. This Agreement will inure to the benefit of us, our successors and assigns.

 

1. Changes to this Agreement and the Platform. We reserve the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement (including the Privacy Policy and the Policies) and review, improve, modify or discontinue, temporarily or permanently, the Platform or any content or information through the Platform at any time, effective with or without prior notice and without any liability to us. We will endeavor to notify you of these changes by email, but will not be liable for any failure to do so. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Platform. Your continued use of the Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes. We may change, modify, suspend, or discontinue any aspect of the Platform at any time without notice or liability. We may also impose limits on certain features or restrict your access to parts or all of the Platform without notice or liability.