TERMS OF USE

 

THESE TERMS OF USE (“TERMS”) GOVERN YOUR USE OF THE TUTOREXTRA WEBSITE, LOCATED AT WWW.TUTOREXTRA.COM, ANY MOBILE APPLICATIONS, AND SERVICES (“SITE”) PROVIDED BY MOBISYSTEMS, INC. (“MOBISYSTEMS”). PLEASE READ THESE TERMS BEFORE USING OR CONTINUING TO USE THE SITE. DO NOT AGREE TO THE TERMS UNLESS YOU BOTH FULLY UNDERSTAND AND ACCEPT EACH PROVISION. BY USING OR CONTINUING TO USE THE SITE, YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND, AGREE TO, AND ACCEPT ALL TERMS AND CONDITIONS CONTAINED IN THESE TERMS.

TutorExtra provides this Site to users seeking tutoring services (“Students”) and to users seeking to provide tutoring services (“Tutors”), 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 MobiSystems, Inc. and you. If you do not agree to these Terms, 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.

The Licensed Application is licensed, not sold, to You for use only under the terms of this license. The licensor (MobiSystems, Inc.) reserves all rights not expressly granted to You.

 

1. Acceptance of Terms of Use Agreement

This Agreement is an electronic contract that sets out the legally binding terms of your use of our Services, whether or not you register as a “Parent/Student Member,” “Business/School Member,”   or “Tutor Member” (each may be referred to as a “Member”). This Agreement includes our Privacy Policy, Student and Provider Policies, our billing policies and any further terms of use for our Services, which are all incorporated herein by reference. This Agreement may be modified by us from time to time, such modifications to be effective when provided in writing or upon posting within our Services. Certain parts of our Services may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between this Agreement and terms and conditions posted for a specific area of or within our Services, the latter terms and conditions will take precedence with respect to your use of or access to that specific Service, but this Agreement shall still apply to our legal relationship.

 

2. Eligibility

Membership in or use of our Services is void where prohibited. Any access to or use of our Services by anyone under the age of majority is expressly prohibited and requires consent to this Agreement by a parent or legal guardian. By using our Services, you represent and warrant to us that you are either a legal adult or, if under the age of majority, have obtained proper consent from a parent or legal guardian. If you use our Services on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. By using our Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.

 

3. How the Service Works

We are an online marketplace for Students and a network of independent contractor Tutors and Businesses (Provider Members). We do not endorse, hire or employ the Provider Members nor are we responsible or liable for any interactions involved between Provider Members and their respective Student Members or between Members. Our Services are separate and distinct from the services of Provider Members.

For Provider Members, we offer various hosted products to support instruction including marketing, scheduling, billing and communication tools. Provider Members can also apply to use our Services where prospective Students can review their profile, communicate with Provider Members and book and pay for lessons and other services ancillary thereto (called a "Listing").

For Student Members, we provide a marketplace to find a network of independent contractor Provider Members and schedule lessons and other services ancillary thereto. Users may be able to review Listings as an unregistered user of our Services; however, if you wish to book a lesson as a Student, to create a Listing as a Provider, to use hosted tools or use certain Services, you must first become a registered Member. See the “How It Works” section of the Website for more information.

 

4. Membership

You may use some of our Services at no direct cost. However, in order to access additional features and Services, you must become a registered Member. To become a Member, you agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete throughout your use of the Services. A Member may not have more than one active TutorExtra Account. We reserve the right to suspend or terminate your TutorExtra Account and your access to our Services for any reason.

• a. Student Membership.

As a Student Member, you will have the ability to book and pay for lessons, communicate with Providers, access help documents and use any other Services provided to Student Members. Additional terms and conditions of service may be contained within your Student Member account.

• b. Provider Membership.

You must be at least eighteen (18) years old to be a Provider Member. As a Provider Member, you will have access to tools that enable you to manage marketing, scheduling, billing and communication and other tools provided by us. In addition, you will have the opportunity to apply for a Listing. Acceptance for Listing is at our sole discretion and we may remove Listings from our Services at any time for any reason. Any Listing you post (i) must not breach any agreements you have entered into with anyone, including this Agreement; and (ii) must contain accurate, current and complete information. Any Provider Member who accepts a booking through our Services must honor all terms and conditions of the Listing, this Agreement and any our additional Provider Policies in effect at the time of booking. Additional terms and conditions of service may be contained within your Provider Member account.

• c. Independent Contractor Status.

Our Services are separate and distinct from the services of the Providers. You acknowledge that Provider Members are not employees or agents of TutorExtra.com, but are independent contractors who operate a separate and distinct business from TutorExtra.com. As such, we do not endorse or control the Providers, the manner or method of service to you, exercise no control over your working relationship with the Provider Member and do not warrant your safety or the service of any Provider Member. We urge all users of our Services to be responsible and careful about their use of our Services, any transaction entered into as a result of our Services and interactions with Members.

• d. General Disclaimer.

We disclaim all, and assume no responsibility for, evaluating or verifying the accuracy, suitability, truthfulness or authenticity of any information contained within the Listings or of any information posted or provided by a Member We assume no responsibility for ensuring a Member’s compliance with any applicable laws, rules and regulations or this Agreement. We have not inspected the location where any instruction will be provided. We are not responsible for the conduct, whether online or offline, of any user of our Services. Under no circumstances will we or any of our employees, officers, agents, advertisers or affiliates be responsible for any loss or damage, including personal injury or death, resulting from anyone's use of the Website or our Services, any content posted on the Website or transmitted to Members, or any interactions between users of our Services, whether online or offline. We cannot guarantee and do not promise any specific results from use of our Services.

Some of our Services may require Students to have a computer and a sustained and reliable internet connection. We do not provide refunds for technical failures, power outages or unreliable internet connections beyond our control.

Our Services may give you access to links to third-party websites ("Third Party Sites"), either directly or through Providers. We not endorse any of these Third Party Sites and do not control them in any manner. Accordingly, we do not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect your personal information and privacy on such Third Party Site.

We cannot guarantee that each Member is at least the required minimum age, nor do we accept responsibility or liability for any content, communication or other use or access of our Services by persons under the age of majority in violation of this Agreement. Also, it is possible that other Members or users (including unauthorized users, or "hackers") may post or transmit offensive or obscene materials using our Services and that you may be involuntarily exposed to such offensive and obscene materials. It also is remotely possible for others to obtain personal information about you due to your use of our Services, and that the recipient may use such information to harass or injure you. We are not responsible for the use of any personal information that you disclose using our Services. Please carefully select the type of information that you post on the Website or release to others using our Services. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER MEMBERS OR USERS (INCLUDING UNAUTHORIZED USERS), WHETHER SUCH ACTS OR OMISSIONS OCCUR DURING THE USE OF THE WEBSITE, OUR SERVICES OR OTHERWISE.

• e. Warranty Disclaimer.

OUR WEBSITE, CONTENT, SUBMITTED CONTENT, COURSES, AND ANY OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE USE OF OUR SERVICES ARE PROVIDED "AS IS," WITHOUT ANY WARRANTIES OF ANY KIND AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, FREEDOM FROM ERRORS, SUITABILITY OF CONTENT, OR AVAILABILITY.

• f. Code of Conduct.

While using our Services you agree not to:

• Restrict or inhibit any other visitor or Member from using our Services, including, without limitation, by means of "hacking" or "cracking" or defacing any portion of our Services;
• Use our Services for any unlawful purpose;
• Express or imply that any statements you make are endorsed by us, without our prior written consent;
• Transmit (a) any content, language, imagery, or information that is unlawful, fraudulent, threatening, harassing, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes on our or any third party's intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us);
• Engage in spamming or flooding;
• Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
• Transmit any software or other materials that contain any virus, worm, time bomb, Trojan horse, or other harmful or disruptive component;
• Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Website or our Services;
• Remove any copyright, trademark, or other proprietary rights notices contained on the Website or applied to our Services;
• "Frame" or "mirror" any part of the Website or our Services without our prior written authorization;
• Use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents;
• Harvest or collect information about Website visitors or Members without their express consent;
• Create more than one profile without our express written consent;
• Permit anyone else whose account or subscription was terminated, or who is not a Member, to use our Services through your subscription, username or password;
• Engage in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes;
• Transfer your account or user ID to another party without our consent;
• Be disruptive in any lesson or group instruction;
• Solicit any instructor or user to work with or for another company for employment, independent contracting services, performances, or other service; or
• Engage in any communication related to sexual conduct, nudity, or which expresses profanity
  
  

5. Pricing

Lesson prices vary by Provider and lesson type and are subject to change at any time. Student Members and Provider Members are obligated to honor the prices established at the time of payment. Additional pricing terms and conditions are contained within Member and Provider accounts and within email correspondence from MobiSystems, Inc. Refunds are not provided for acts taken in violation of this Agreement or for technical failures, power outages or unreliable internet connections beyond our control.

 

6. Term

This Agreement will remain in full force and effect while you use our Services and/or are a Member. You may terminate your membership at any time, for any reason, by sending a written notice of termination to MobiSystems, Inc., 3390 Carmel Mtn. Rd., Suite 110, San Diego, California 92101 or write notice to Administrator. To help us analyze and improve our Services, you may be asked to provide a reason for your resignation/cancellation. We may terminate your membership and/or subscription at any time through notice to your email address on file. If we terminate your membership because you have breached this Agreement, you will not be entitled to any refund of unused subscription fees. All decisions regarding the termination of accounts shall be made in our sole discretion. We are not required to provide you notice prior to terminating your membership. We are not required, and may be prohibited, from disclosing a reason for the termination of your account. After your membership or subscription is terminated, all terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.

 

7. Non-Circumvention

During the term of this Agreement and for one year thereafter, no Member shall, directly or indirectly, circumvent, initiate, solicit, negotiate, contract or enter into any business transactions with any Member introduced by us through our Services, without our consent. In case of such circumvention, such Member agrees and guarantees that such Member will pay a legal monetary penalty that is equal to the commission or fee we would have realized in such transactions, had Member not circumvented our rights under this Agreement.

 

8. No Non-Permitted Use by Members

Use of our Services is only with our permission, which may be revoked at any time, for any reason, in our sole discretion. Illegal and/or unauthorized uses of our Services may be referred for criminal prosecution.

 

9. Account Security

You are responsible for maintaining the confidentiality of your username and password. You shall not disclose your password to any unauthorized third party and will take sole responsibility for any activities or actions under your TutorExtra Account, whether or not you have authorized such activities or actions. You agree to (a) immediately notify us of any unauthorized use of your username or password or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. If you share your computer with others, you may wish to consider disabling any auto-sign in features if linked to your TutorExtra account.

 

10. Your Interactions with Other Members and Our Limitation of Liability

• a. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER MEMBERS. YOU UNDERSTAND THAT NOT ALL PROVIDERS ON THE WEBSITE HAVE BACKGROUND CHECKS AND THAT WE DO NOT PERFORM BACKGROUND CHECKS ON STUDENT MEMBERS. THE EXTENT OF OUR BACKGROUND CHECK IS LIMITED BY THE QUALITY AND SCOPE OF SERVICE PROVIDED BY OUR THIRD PARTY INVESTIGATIVE SERVICE AND THE LIMITATIONS OF COMPUTER ACCESSIBLE PUBLIC RECORDS. NOT ALL JURISDICTIONS OR CRIMES ARE EVALUATED AS PART OF THE CRIMINAL BACKGROUND CHECK. WE DO NOT ATTEMPT TO VERIFY THE QUALIFICATION OR STATEMENTS OF OUR MEMBERS. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS.
• b. NO MEMBER IS OBLIGATED TO MEET OFFLINE WITH ANY OTHER MEMBER. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH OTHER MEMBERS OF OUR SERVICES. YOU UNDERSTAND THAT WE MAKE NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING YOUR ULTIMATE EXPERIENCE WITH MEMBERS YOU MEET THROUGH OUR SERVICES. YOU DO SO AT YOUR OWN RISK AND AT YOUR OWN PERIL.
• c. IN NO EVENT SHALL MOBISYSTEMS, INC. AND/OR ITS OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, AND/OR INCIDENTAL, INCLUDING LOST PROFITS, ARISING OUT OF OR RELATING TO ANY ACT OR OMISSIONS OF YOU, MOBISYSTEMS, INC. AND/OR ITS OFFICERS, EMPLOYEES, AGENTS OR AFFILIATES, OUR THIRD PARTY INVESTIGATIVE SERVICE, ANY MEMBER OR ANYONE ELSE IN CONNECTION WITH THE USE OF OUR SERVICES OR THE WEBSITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF OUR SERVICES OR PERSONS YOU MEET THROUGH OUR SERVICES, OR OTHERWISE.
• d. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE LIABILITY OF MOBISYSTEMS, INC. AND/OR ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES, TO YOU AND YOUR HEIRS AT LAW FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US FOR OUR SERVICES DURING THE PRECEDNG TWELVE MONTHS, UP TO A MAXIMUM OF ONE THOUSAND DOLLARS.
  
  

11. Content within our Services

• a. Proprietary Rights.

The Website and our Services contains the copyrighted material, trademarks, and other proprietary information of MobiSystems, Inc., and its licensors. Except for that information which is in the public domain or for which you have been given written permission, you may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.

• b. Reliance on Content, Advice, Etc.

Opinions, advice, statements, reviews, offers, or other information or content made available through our Services, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.

 

12. Content Posted by You

As a Member, you may be able to post content, including uploading videos, photos and providing reviews of Members. You are solely responsible for the content that you publish or display (hereinafter, “post”) using our Services, or transmit or display to other Members. You will not post on the Website or Service, or transmit or display to other Members, any defamatory, inaccurate, false, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, racially offensive, or illegal material, or any material that infringes or violates another party's rights (including, but not limited to, intellectual property rights, and rights of privacy and publicity). By posting Content using our Services, you automatically grant, and you represent and warrant that you have the right to grant, to us, our affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your content by us will not infringe or violate the rights of any third party.

 

13. Customer Service

We may provide assistance and guidance through our customer care representatives. Telephone calls between you and our customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of unused subscription fees.

 

14. Modification to Services

We reserve the right at any time to modify or discontinue, temporarily or permanently, our Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Services. Notification of changes to our Services may be posted within your Member profile, on the Website or communicated through our Services.

 

15. Copyright Policy

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright law. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website or used in any of our Services in a way that constitutes copyright infringement, please contact us immediately at contacts@tutorextra.com

 

16. Member Disputes

You are solely responsible for your interactions with other Members. We reserve the right, but not the obligation, to monitor disputes between you and other Members.

 

17. Privacy and Communications

Use of our Services is also governed by our Privacy Policy. When you become a Member, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to our Services, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us. Please see our Privacy Policy for more information regarding these communications.

 

18. Links

Our Services may provide, or third parties may provide, links to other websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such Content, goods or services available on or through any such site or resource.

 

19. U.S. Export Controls

Software from this Website (the “Software”) is further subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported to Country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.

 

20. Arbitration and Governing Law

Any controversy, claim, suit, injury or damage arising from or in any way related to the Site, its use, its Users (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.

MobiSystems, Inc. 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 MOBISYSTEMS, INC. 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 MOBISYSTEMS, INC. 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 MOBISYSTEMS, INC. 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, MobiSystems, Inc. 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 MobiSystems, Inc., you must complete a short form, submit it to the AAA, and send a copy to MobiSystems, Inc., Attn: Legal Department, 3390 Carmel Mtn. Rd., Suite 110, San Diego, CA 92121. For more information, see the AAA’s claim filing page, http://www.adr.org/fileacase. 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 MobiSystems, Inc. agree that any dispute is personal to you and MobiSystems, Inc. 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.

 

21. Release and Indemnification

IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE MEMBERS OR OTHER USERS OF OUR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DISPUTE BETWEEN MEMBERS REGARDING ANY TRANSACTION OR USER CONTRIBUTED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR FROM OR OTHERWISE INTERACT WITH OUR SERVICES, INCLUDING WITHOUT LIMITATION ANY SOCIAL MEDIA SITE, YOU HEREBY AGREE TO RELEASE, REMISE AND FOREVER DISCHARGE MOBISYSTEMS, INC. AND OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS, AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNECTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE WEBSITE AND OUR SERVICES.

UNLESS OTHERWISE PROHIBITED BY LAW, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 

YOU HEREBY AGREE TO INDEMNIFY, DEFEND AND HOLD MOBISYSTEMS, INC. AND OUR RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES (COLLECTIVELY, THE "INDEMNIFIED PARTIES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS INCURRED BY THE INDEMNIFIED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF YOUR USE OF THE WEBSITE, OUR SERVICESOR OTHERWISE RELATING TO THE BUSINESS WE CONDUCT (INCLUDING, WITHOUT LIMITATION, ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER MEMBER OR THIRD PARTY), ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF OR POSTED BY OTHER USERS OF YOUR ACCOUNT TO THE WEBSITE, ANY USE OF ANY SERVICES OR SERVICE PROVIDED BY A THIRD PARTY PROVIDER, ANY USE OF A TOOL OR SERVICES OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING WITHTOUT LIMITATION ANY SOCIAL MEDIA SITE OR ANY BREACH BY YOU OF THESE TERMS OR THE REPRESENTATIONS, WARRANTIES AND COVENANTS MADE BY YOU HEREIN, INCLUDING WITHOUT LIMITATION, ATTORNEYS' FEES AND COSTS. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT IN ANY EVENT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.

 

22. Commercial Release

By using the Service, you hereby authorize us and our agents, successors and assigns to photograph and/or videotape and/or record you and/or our voice(s) without restriction and to utilize such photographs/videos and/or voice transcriptions or recording for any commercial purpose, including, but not limited to, the promotion and marketing of our Services, without further compensation whatsoever of any kind as a result of such use.

 

23. Taxes

You are responsible for collecting and paying your own taxes due if and when applicable. We are unable to provide you with tax advice and you should consult your own tax advisor.

• A. European Union

In the event that the sale or delivery of a product or service in the European Union is subject to any value added tax ("VAT"), under applicable law, You are responsible for remitting the taxes to the appropriate taxing authority (which may be different to the tax authority in your own location). You will indemnify and hold MobiSystems, Inc. harmless against any and all claims by any tax authority for any underpayment of VAT, and any penalties and/or interest thereon.

• B. All Other Countries

For sales in countries other than the European Union, You are responsible for remitting the taxes to the appropriate taxing authority (which may be different to the tax authority in your own location).

• C. Foreign Currency

We will default the sale currency to US dollars. The currency of any transaction will match the sale currency displayed to you through our Services. You cannot change your displayed currency. Each foreign currency conversion is processed at a foreign currency conversion rates used by our credit card merchant providers. Currency conversion rates will vary from time to time. We may, in our sole discretion, round up or round down the sale price to the nearest whole functional base unit in which the sale currency is denominated (e.g. to the nearest dollar, euro or other supported currency). Some currencies are denominated in large numbers. In those cases, we may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency.

 

24. Background and Verification Checks

• A. Tutors Can Order or Authorize Background Checks about Themselves and Can Authorize the Sharing of Them with Other Members

MobiSystems, Inc. offers to individuals who have registered as Tutors and Student/Parents the following background check services from third-party consumer reporting agencies: Criminal checks and Investigative Criminal Plus background checks (collectively "Background Checks"). Criminal checks may be ordered by Tutors about themselves or in response to a request by a Student/Parent. Investigative Criminal Plus background checks may only be ordered by Student/Parents subject to the written authorization of the Tutor who is the subject of the check. All background checks require payment of a separate fee by the Member who is initiating the background check request and are subject to the consent of the Tutor on whom the check is being performed.

Each of these Background Checks is regulated by the Fair Credit Reporting Act ("FCRA"), and the background reports resulting from these services are considered "consumer reports" under 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.

MobiSystems, Inc. will receive a copy of each Background Check you order or authorize through MobiSystems, Inc. See Section 4.4 below for information regarding MobiSystems, Inc.'s use of these Background Checks. If you order a Criminal about yourself, you will be emailed a copy of the results if the check returns any criminal or motor vehicle history. You are responsible for making sure that the email address you provide to MobiSystems, Inc. is correct, knowing that sensitive information will be sent to it.

If a Student/Parent orders an Investigative Criminal Plus background check pursuant to your written authorization, the consumer reporting agency that performed the check will provide it directly to you and to the Student/Parent who ordered it based on your written authorization. The results of an Investigative Criminal Plus background check ordered pursuant to your written authorization will be shared directly with requesting Student/Parent regardless of its contents.

If you are a Tutor and you have ordered a Background Check from a third-party consumer reporting agency through MobiSystems, Inc., we may indicate in your profile that you have completed that check. However, we will not share the results with any other site visitor or Registered User without your specific consent.

• B. Background Check Offerings Available to Individuals Who May Not Have Registered As Tutors or Student/Parents

Through certain pages of the Site, we may from time to time offer to individuals who may or may not be registered as Student/Parents the opportunity to purchase Investigative Criminal or Investigative Criminal Plus background checks on caregivers who are not necessarily registered as Student/Parents. These background checks are performed by a third-party consumer reporting agency and are subject to the terms of Section 4.1 pertaining to Investigative Criminal Plus checks generally, and to Sections 4.3 and 4.7 except that (i) references to Student/Parents shall refer to individuals who order the checks regardless of whether they are registered as Student/Parents, (ii) references to Tutors shall refer to individuals who authorize the check to be performed on themselves regardless of whether they are registered as Tutors, and (iii) MobiSystems, Inc. does not view the results of these checks regardless of whether the caregiver on whom the check is performed is registered as a Tutor.

• C. Special Responsibilities of Users of Background Check under FCRA

If you receive a copy of a background report, you warrant that you will use such information only for a purpose permitted by FCRA, such as an employment purpose, and that you will comply with any and all applicable obligations of FCRA as well as all other applicable consumer reporting laws.

Your responsibilities in using the information contained the background check can be found at http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. FCRA governs the use of reports obtained from a consumer reporting agency, such as the third party consumer reporting agencies we use.

If there is negative data in a check you receive, and you choose to take "adverse action" (i.e. choose to pass on that individual's candidacy) on the basis of this negative data, you must agree to take certain procedural steps, which can be found at http://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-employers-need-know. These include notifying the individual who is the subject of the report of your decision to take adverse action based on information contained in the report and the subject's right to contest the accuracy or completeness of the report. Moreover, if the subject contests the report with the consumer reporting agency, you are required to suspend the hiring process while the agency researches the accuracy and completeness of the report.

• D. MobiSystems, Inc. May Review and Use Background Checks You Order or Authorize About Yourself

By registering for and using the Site or Services as an individual Tutor, you acknowledge and agree that MobiSystems, Inc. may review and use any Background Checks you have ordered or authorized about yourself for the legitimate business purpose of protecting the safety and integrity of our Site and its users and reserves the right to terminate your membership based on the information contained in such report, even if such information was subsequently dismissed.

If MobiSystems, Inc. terminates your membership or access to the Site on the basis of information in a Background Check, 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 a copy or access to it. You hereby represent, understand and expressly agree that MobiSystems, Inc. does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in these Background Checks. Furthermore, any inaccuracies in the report must be addressed with the consumer reporting agency that issued it and not MobiSystems, Inc.

• E. MobiSystems, Inc. May Order and Use Background Checks About You

By registering for and using the Site or Services as a Student/Parent or Tutor, you hereby acknowledge and agree that MobiSystems, Inc. has the right, but not the obligation, to use a third-party consumer reporting agency on an ongoing basis to use your personal information to run periodic background checks on you for the legitimate business purpose of protecting the safety and integrity of our Site and its users ("Internal Background Checks"). MobiSystems, Inc. may order these checks when you register with MobiSystems, Inc. and thereafter in connection with your continued use of our Services and/or interaction with our Site (such as by contacting or communicating with other members, posting or updating a job or profile, ordering or authorizing a Background Check, etc.).

These Internal Background Checks are also regulated by FCRA, and the background reports resulting from these services are considered "consumer reports" under 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 MobiSystems, Inc. may review the information provided by the third-party consumer reporting agency and that MobiSystems, Inc. retains the right to terminate your MobiSystems, Inc. registration based on the information it receives from these checks, even if such information was subsequently dismissed. If MobiSystems, Inc. terminates your membership or access to the Site 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 a copy or access to it. You hereby represent, understand and expressly agree that MobiSystems, Inc. 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 MobiSystems, Inc.) within the time period specified in your notice.

BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW MOBISYSTEMS, INC. TO PERFORM THESE INTERNAL BACKGROUND CHECKS FOR THE PURPOSES DESCRIBED ABOVE. IF YOU DO NOT WANT THESE INTERNAL BACKGROUND CHECKS TO BE PERFORMED, YOU SHOULD NOT USE MOBISYSTEMS, INC. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE CHECKS TO BE PERFORMED.

• F. MobiSystems, Inc. May Regularly Verify Your Identity and the Accuracy of Your Representations and Warranties

By registering as a Tutor or Student/Parent, you authorize MobiSystems, Inc., and acknowledge that for purposes of promoting the safety and integrity of its Site and Service, MobiSystems, Inc. reserves the right, but not the obligation, to utilize third party service providers to verify on an ongoing basis that your registration data is accurate and that the representations and warranties in Section 2.2 above addressing legal matters such as complaints, arrests, sex offender status, etc. are also true ("Verification Checks"). These third parties may use data from a variety of sources, under a variety of circumstances, for these site safety purposes including, without limitation, information from national criminal databases, sex offender registries, certain media streams, terrorist watch lists, criminal and fugitive watch lists, fraud watch lists, law enforcement reports, and other data.

You agree that MobiSystems, Inc. may take such action in response to Verification Checks as it deems appropriate in its sole discretion, including without limitation suspending and/or terminating your membership, should it determine that you have violated any representation or warranty or any other provision of these Terms or are otherwise unsuitable for MobiSystems, Inc.

You also hereby represent, understand and expressly agree that MobiSystems, Inc. does not have control over or assume any responsibility for the quality, accuracy, or reliability of the information included in a Verification Check. We do not typically communicate the results of a Verification Check to any third party, though we reserve the right to do so for law enforcement or other safety-related purposes.

BY AGREEING TO THESE TERMS, YOU AGREE TO ALLOW MOBISYSTEMS, INC. TO PERFORM THE VERIFICATION CHECKS DESCRIBED ABOVE. IF YOU DO NOT WANT THESE VERIFICATION CHECKS TO BE PERFORMED, YOU SHOULD NOT USE TUTOREXTRA.COM. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE VERIFICATION CHECKS TO BE PERFORMED.

• G. Important Limitations About Background Checks; Release of Liability for Results of Background Checks, Internal Background Checks, and Verification 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 completed by a third party consumer reporting agency (not MobiSystems, Inc.), 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, and that the checks are not always accurate or a complete compilation of a person's criminal history. This is an illustrative, non-comprehensive, list of certain state and county limitations of the background checks offered through MobiSystems, Inc.; additional limitations may apply in certain jurisdictions, including on the federal level. For example, Federal law prohibits our vendors from reporting non-conviction information that is more than seven years old. Notably, there are significant gaps in the coverage provided by the preliminary check. For example, for many states only certain registered sex offender information is reported, and for most states, only a subset of felony convictions are reported (and not any misdemeanors, charges or arrest records).

In addition to legal and reporting system limitations of background checks, each check is performed with the consent of the person being checked, using information he or she provides, such as home address, social security number, date of birth, and name. If a candidate provides incorrect information, the check might be run with inaccurate identifying data, which can impact the validity of the criminal check. Finally, criminal records are not always reported accurately or promptly, and human and electronic error can result in inaccurate or incomplete reporting. Consequently, even the most comprehensive background check offered may not disclose the existence of all criminal records in all jurisdictions.

If you decide to access, use, or share information provided by a Background Check, you agree to do so in accordance with applicable law. You also agree to release, indemnify and hold harmless MobiSystems, Inc. from any loss, liability, injury, death, damage, or costs that may result from your use of, reliance on, or sharing of the information contained in a Background Check regardless of the cause, including, without limitation, due to the inaccuracy or incompleteness of any such information.

You expressly acknowledge that MobiSystems, Inc. has no obligation to perform Background Checks, Internal Background Checks, or Verification Checks on any Registered Users. To the extent MobiSystems, Inc. performs such checks on certain Registered Users, 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 TutorExtra.com.

 

25. Miscellaneous

If either party does not enforce any right or remedy available under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party. Our waiver of any requirement in any one instance is not a general waiver of that requirement and does not amend this Agreement. If any part of this Agreement is held invalid or unenforceable, that part is interpreted consistent with applicable laws as nearly as possible to reflect the original intentions of the parties and the rest of this Agreement remains in full force and effect. The provisions of this Agreement that are contemplated to be enforceable after the termination of this Agreement, including, without limitation Sections 4, 8, 11, 21, 22 & 23, shall survive termination of this Agreement. This Agreement, including the documents referenced herein, contains the entire agreement between you and us regarding the use of the Website and/or our Services. This Agreement is binding on the parties hereto and their successors and assigns.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.

 

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