Last Updated: July 17th, 2017
NOTE THAT SECTION 21 OF THESE TERMS CONTAINS A MANDATORY ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes, we will notify you by revising the date at the top of these Terms and, in some cases, we may provide you with additional notice (such as adding a statement to our website’s homepage or sending you a notification). By continuing to access or use the Services, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Services. If you do not agree to the revised Terms, you may not access or use the Services.
If you have any questions, comments, or concerns about these Terms, please contact us at: legal@1stChoiceTutors.com.
1. Our Services
We provide a platform for individuals who access and use the Services (“Users”) to find and communicate with service professionals (“Experts”), including but not limited to contractors, landscapers, lawyers, photographers and others as permitted on the Services.
While we enable Users and Experts to search for information and communicate with one another, we are not responsible for monitoring such information and communications, and we are not a party to transactions that may occur between Users and Experts. in addition, We are not responsible for and we expressly disclaim all liability that may result from information made available by Users or Experts and the conduct of users and experts, whether online or offline. 1stChoice Tutors does not sponsor, endorse, recommend or approve of any Expert, nor do we make any representations or warranties about the quality, timing or legality of the products or services they provide. Additionally, we cannot and do not represent or warrant that any Expert is licensed, qualified, bonded, insured or capable of performing any product or service, and we make no representations or warranties about the suitability, reliability or accuracy of the products and services they provide.
3. Additional Terms
Additional terms and policies (“Additional Terms”) may apply to specific portions of the Services. In the event Additional Terms apply to your use of the Services, we will provide notice of such terms and your continued use of the relevant portions of the Services will constitute your agreement to these Additional Terms. Unless indicated otherwise, if there is a conflict between these Terms and the Additional Terms, the Additional Terms will govern.
4. Eligibility, Registration and Accounts
The Services are not targeted towards, nor intended for use by, anyone under the age of 13. If you are under the age of 18, or age of legal majority under applicable law, you may only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. By using the Services, you represent and warrant that you (a) are 13 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one 1stChoice Tutors account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
In order to access and use certain areas or features of the Services, you will need to register for an 1stChoice Tutors account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update your account information as necessary, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Services or your account.
5. License to Access and Use Our Services and Content
Unless otherwise indicated by us, the Services and all content and other materials contained therein, including, without limitation, the 1stChoice Tutors logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 10), other files and the selection and arrangement thereof (collectively, “1stChoice Tutors Content”) are the proprietary property of 1stChoice Tutors, our licensors or users, as applicable, and are protected by U.S. and international copyright laws. The term 1stChoice Tutors Content, as used in these Terms, does not include third-party trademarks, intellectual property or other content or material owned by third parties and not covered under a license with 1stChoice Tutors or materials that are in the public domain.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Services and 1stChoice Tutors Content. However, such license is subject to these Terms and does not include: (a) any resale or commercial use of the Services or the 1stChoice Tutors Content therein; provided, however, that Experts are permitted to use the Services for commercial purposes; (b) the collection and use of any product or service listings, pictures, or descriptions; (c) the distribution, public performance or public display of any 1stChoice Tutors Content; (d) modifying or otherwise making any derivative uses of the Services or the 1stChoice Tutors Content or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Services, the 1stChoice Tutors Content or any information contained therein, except as expressly permitted on the Services; and (g) any use of the Services or the 1stChoice Tutors Content other than for their intended purposes. Any use of the Services or 1stChoice Tutors Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of 1stChoice Tutors or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Services and 1stChoice Tutors Content may include software components provided by 1stChoice Tutors or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Services by, or terminating the accounts of, individuals who infringe the intellectual property rights of others. If you believe that anything on the Services infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“1stChoice Tutors,” the 1stChoice Tutors logo and any other 1stChoice Tutors product or service names, logos or slogans that may appear on the Services are trademarks of 1stChoice Tutors and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “1stChoice Tutors” or any other name, trademark or product or service name of 1stChoice Tutors without our prior written permission. In addition, the look and feel of the Services, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of 1stChoice Tutors and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Services are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by 1stChoice Tutors.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Services, provided that such link does not portray 1stChoice Tutors or any of our Services in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use an 1stChoice Tutors logo or other proprietary graphic of 1stChoice Tutors to link to the Services without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any 1stChoice Tutors trademark, logo or other proprietary information, including the images found on the Services, the content of any text or the layout or design of any page, or form contained on a page, on the Services without our express written consent.
1stChoice Tutors makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from the Services or of websites linking to the Services. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Services.
9. Third Party Content
We may display content, including advertisements and promotions, from third parties through the Services or may otherwise provide information about or links to third-party products or services (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your business dealings, correspondence with, or other interactions with third parties providing Third Party Content, and any terms, conditions, warranties or representations associated with such dealings and interactions are solely between you and such third parties. 1stChoice Tutors is not responsible or liable in any manner for such dealings and interactions or Third Party Content, nor for any loss or damage of any sort incurred as the result of any such dealings or interactions or as the result of the presence of Third Party Content on the Services.
10. User Content
The Services may include interactive features and areas that allow Experts and Users to create, post, share, upload to, transmit, distribute, store or otherwise publish content, including, but not limited to project descriptions, blog content, Reviews (defined in Section 13), photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). You understand that User Content is viewable by others using the Services. You agree that you are solely responsible for your User Content and for your use of such interactive features and areas of the Services, and that you use them at your own risk.
By using the interactive features and areas of the Services, you further agree not to create, post, share, upload to, transmit, distribute, store or otherwise publish through the Services any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences
- User Content that impersonates, or misrepresents your affiliation with, any person or entity
- User Content that references or depicts 1stChoice Tutors or our Services but fails to disclose a material connection to us, if you have one (for example, if you are an 1stChoice Tutors employee or paid blogger)
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations
- User Content that contains any private or personal information of a third party without such third party’s consent
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Services, or that may expose 1stChoice Tutors or others to any harm or liability of any type
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct
- Use or attempt to use another User’s account without authorization from such User and 1stChoice Tutors
- Use the Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner
- Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any 1stChoice Tutors Content, area or code of the Services
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access
- Develop any third party applications that interact with User Content or the Services without our prior written consent
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data or otherwise interfere with or modify the rendering of Services’ pages or functionality
- Bypass or ignore instructions contained in the robots.txt file, accessible at https://www.1stChoiceTutors.com/robots.txt, that controls all automated access to the Services; or
- Use the Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms
We do not approve, control or endorse User Content and we are not responsible or liable for any User Content on the Services. In addition to other disclaimers found in these Terms, we do not endorse or make any warranties or representations with respect to the accuracy, completeness or timeliness of any User Content posted on the Services. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.
11. Rights in User Content
You retain all ownership rights in the User Content you submit to 1stChoice Tutors. By submitting or posting User Content to the Services, or to our pages or feeds on third party social media platforms (e.g., 1stChoice Tutors’s Facebook page), you hereby grant 1stChoice Tutors a nonexclusive, royalty-free, worldwide, perpetual, transferable, irrevocable and fully sublicensable right and license to use, store, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to 1stChoice Tutors through the Services or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize 1stChoice Tutors to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
12. User Conduct
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services. You agree that you will abide by these Terms and will not:
13. Reviews of Experts
You may only post a review of an Expert (“Review”) if you have first-hand knowledge of the products and/or services provided by such Expert. You may not post Reviews about an Expert or any of their products or services if you are (a) affiliated with or employed by the Expert (including but not limited to employers, employees and contractors of the Expert); (b) a competitor of the Expert; or (c) related to the Expert in any way. By posting a Review, you acknowledge and agree that it is accurate, truthful and complete.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about 1stChoice Tutors and the Services (collectively, “Feedback”). Feedback, whether submitted through the Services or otherwise, is nonconfidential and shall become the sole property of 1stChoice Tutors. 1stChoice Tutors shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
15. Additional Provisions Applicable to Experts
In addition to the other provisions of these Terms, the following are additional provisions that apply specifically and solely to Experts.
15.1 Representations and Warranties
By using the Services as an Expert, you represent and warrant that: (a) you possess the qualifications, experience and skills necessary to provide the services that you are offering through the Services and that you will perform such services with the degree of skill and care that is required by current good and sound professional practices in accordance with any applicable industry standards; (b) you have, and will continue to maintain, all valid licenses and authorizations required by all applicable authorities for any services you solicit, accept or perform; (c) you will not collect, use, rent or sell information about Users that you obtain directly or indirectly from 1stChoice Tutors for purposes other than to provide the services to such Users; and (d) all information you provide related to your qualifications experience and skills, as well as other information provide in relation to the Services is accurate, current and complete.
15.2 Independent Contractor
You acknowledge that you are an independent contractor, and that no agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms or any relationship between you and 1stChoice Tutors. You shall be responsible for the supervision, direction, control, compensation, benefits, and withholdings of all of your employees.
To the extent you receive any confidential information of 1stChoice Tutors in connection with your use of the Services, including but not limited to information concerning fees, marketing plans, financial results, Users, Experts, pricing schedules, product lines, product plans, proprietary technology, research information, practices, trade secrets, and any and all other information as deemed confidential by 1stChoice Tutors which is not generally known to the public, you agree to protect such information against any unauthorized use or disclosure and to use such information solely for the purposes for which it was disclosed to you. For purposes of clarification and not limitation, you are not permitted to disclose information about Users or Experts that you collect through the Services to any third party without the express written consent of 1stChoice Tutors.
16. Background Checks
Experts can order and authorize 1stChoice Tutors to engage a third party consumer reporting agency to use your personal information to run a background check on you for the legitimate business purpose of protecting the safety and integrity of our Services and our Users (“Background Checks”).
These Background Checks are regulated by the Fair Credit Reporting Act (the “FCRA”), and the background reports resulting from these checks are considered “consumer reports” under the FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers’ compensation, driving, employment, military, civil, and educational data and reports.
You understand and agree that 1stChoice Tutors may review the information provided by the third party consumer reporting agency and that 1stChoice Tutors retains the right to terminate your 1stChoice Tutors account based on the information we receive from these checks, even if such information is subsequently dismissed. If 1stChoice Tutors terminates your account or access to the Services on the basis of information in a background report, we will notify you and provide you the name and contact information of the consumer reporting agency that created the report. We will also provide you a copy of the report unless the consumer reporting agency has already provided you with a copy or access to it. You hereby represent, understand and expressly agree that 1stChoice Tutors does not have control over or assume any responsibility for the quality, accuracy or reliability of the information included in these checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it (and not 1stChoice Tutors) within the time period specified in your notice.
The results of any Background Check you order that results in 1stChoice Tutors suspending or terminating your account will not be shared with other users. If you have ordered a Background Check through 1stChoice Tutors, we may indicate in your profile that you have completed that check. However, we will not share the results with any other User without your specific consent.
16.1 Release of Liability for Results of Background Checks
If you decide to use or access information included in a Background Check, you hereby represent, understand and expressly agree that those checks are not always accurate or complete (or based on information that is accurate or complete) and that the specific records searched, and the comprehensiveness of the search, varies by the type of Background Check ordered as well as the state and county where the check is performed. For example, many jurisdictions only include felony conviction records (and not, for example, misdemeanor or arrest records) in the national criminal data base, which is the only data source utilized for preliminary background checks other than the sexual offender registry. Moreover, some states include only registered sex offenders in that database.
You expressly acknowledge that 1stChoice Tutors has no obligation to perform Background Checks on any Experts. To the extent 1stChoice Tutors performs such checks on certain Experts, the checks are limited and should not be taken as complete, accurate, up-to-date or conclusive evidence of the accuracy of any information those users have provided or of their eligibility to use the Services.
1STCHOICE TUTORS DOES NOT ASSUME AND EXPRESSLY DISCLAIMS, AND YOU HEREBY AGREE TO RELEASE 1STCHOICE TUTORS FROM, ANY LOSS, LIABILITY, DAMAGE, OR COSTS THAT MAY RESULT FROM THE USE OF INFORMATION PROVIDED IN A BACKGROUND REPORT INCLUDING, WITHOUT LIMITATION, THE INACCURACY OR INCOMPLETENESS OF ANY SUCH INFORMATION, AS WELL AS YOUR RELIANCE ON COMPLETION OF A BACKGROUND CHECK.
You agree to indemnify, defend and hold harmless 1stChoice Tutors, and our partners, independent contractors, service providers and consultants, and our respective directors, officers, employees and agents (individually and collectively, the “1stChoice Tutors Parties”), from and against all claims, damages, awards, judgments, losses, costs, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) arising out of or relating to (a) your use of the Services, (b) any User Content you create, post, share, upload to, transmit, distribute, store or otherwise publish on or through the Services, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another.
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY 1STCHOICE TUTORS, THE SERVICES AND THE 1STCHOICE TUTORS CONTENT CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. 1STCHOICE TUTORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES AND 1STCHOICE TUTORS CONTENT CONTAINED THEREIN. 1STCHOICE TUTORS DOES NOT REPRESENT OR WARRANT THAT 1STCHOICE TUTORS CONTENT ON THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE 1STCHOICE TUTORS ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICES AND 1STCHOICE TUTORS CONTENT SAFE, 1STCHOICE TUTORS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
1STCHOICE TUTORS MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO PRODUCTS AND SERVICES OFFERED BY EXPERTS, AND 1STCHOICE TUTORS SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY OR OTHER CHARACTERISTICS OF SUCH PRODUCTS AND SERVICES, OR WITH RESPECT TO THE CONDUCT OF ANY EXPERT IN CONNECTION WITH SUCH SERVICES.
SOME JURISDICTIONS MAY NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
All third party hardware and other products included or sold with an Expert’s services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. 1STCHOICE TUTORS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL 1STCHOICE TUTORS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
19. Assumption of Risk; Limitation of Liability
You assume all risk when using the Services, including but not limited to all of the risks associated with any online or offline interactions with Users and Experts.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL 1STCHOICE TUTORS OR THE 1STCHOICE TUTORS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR THE 1STCHOICE TUTORS CONTENT, INCLUDING BUT NOT LIMITED TO ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON INFORMATION OBTAINED through the Services OR FROM the conduct of you or anyone else in connection with the services (including but not limited to bodily injury, DEATH OR PROPERTY DAMAGE), whether online or offline), MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO 1STCHOICE TUTORS’S RECORDS, PROGRAMS OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF 1STCHOICE TUTORS OR THE 1STCHOICE TUTORS PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SERVICES OR TO THESE TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO 1STCHOICE TUTORS FOR ACCESS TO OR USE OF THE SERVICES, OR, IF YOU HAVE NOT PAID 1STCHOICE TUTORS FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00.
20. Modification to the Services
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) without prior notice. You agree that 1stChoice Tutors will not be liable for any modification, suspension or discontinuance of the Services or any party thereof.
21. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES WITH 1STCHOICE TUTORS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
21.1 Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 12 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and 1stChoice Tutors agree (a) to waive your and 1stChoice Tutors’s respective rights to have Disputes arising from or related to these Terms, the Services or the 1stChoice Tutors Content, resolved in a court, and (b) to waive your and 1stChoice Tutors’s respective rights to a jury trial. Instead, you and 1stChoice Tutors agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
21.2 No Class Arbitrations, Class Actions or Representative Actions
You and 1stChoice Tutors agree that any Dispute arising out of or related to these Terms or the Services or 1stChoice Tutors Content is personal to you and 1stChoice Tutors, and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and 1stChoice Tutors agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and 1stChoice Tutors agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
21.3 Federal Arbitration Act
You and 1stChoice Tutors agree that these Terms affect interstate commerce and that the enforceability of this Section 21 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
21.4 Notice; Informal Dispute Resolution
You and 1stChoice Tutors agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to 1stChoice Tutors shall be sent by certified mail or courier to 1525 4th Avenue Suite 700, Seattle, WA 98101. Your notice must include (a) your name, postal address, telephone number, the email address associated with your 1stChoice Tutors account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically to the email address associated with your 1stChoice Tutors account and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and 1stChoice Tutors cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or 1stChoice Tutors may, as appropriate and in accordance with this Section 21, commence an arbitration proceeding or, to the extent specifically provided for in Section 21.1, file a claim in court.
Except for Disputes arising out of or related to a violation of Section 12 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and 1stChoice Tutors agree that any Dispute must be commenced or filed by you or 1stChoice Tutors within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and 1stChoice Tutors will no longer have the right to assert such claim regarding the Dispute). You and 1stChoice Tutors agree that (a) any arbitration will occur in Seattle, Washington or telephonically, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts located in King County, Washington, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county where you reside if the Dispute meets the requirements to be heard in small claims court.
21.6 Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
21.7 Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 21 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 21 will remain valid and enforceable. Further, the waivers set forth in Section 21.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
22. Governing Law and Venue
These Terms and your access to and use of the Services shall be governed by, construed and enforced in accordance with the laws of the State of Washington, without regard to conflict of law rules or principles. You agree that all disputes, causes of action, claims or controversies that are not subject to binding arbitration will be resolved exclusively in the state or federal courts of King County, Washington, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising in connection with these Terms or your access to or use of the Services.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Services, or any portion thereof, and to block or prevent your future access to and use of the Services or any portion thereof.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.