Talking Chalks DBA.
User Agreement
Welcome to the Talking Chalks Inc. (“Talking Chalks”), application and website! We connect individuals who want to learn a language with a native speaker who can help them learn (“Tutors”) for real time video chat foreign language tutoring sessions (“Tutoring Services”). This User Agreement (this “Agreement”) applies to users, and where users are minors/children under the age of 13, their parent or legal guardian, who visit and engage Tutors for language tutoring services (collectively or individually “Students”), whether through our websites, TalkingChalks.com and kids.TalkingChalks.com (the “Sites”) or Talking Chalks or Talking Chalks Kids mobile device applications (the “Apps”) together “the Platform.”
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT PROVIDES THAT ALMOST ALL DISPUTES BETWEEN YOU AND TALKING CHALKS ARE SUBJECT TO BINDING ARBITRATION AND CONTAINS A WAIVER OF CLASS AND COLLECTIVE ACTION RIGHTS AND ANY RIGHT TO A JURY TRIAL AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. BY ENTERING THIS AGREEMENT, YOU GIVE UP YOUR RIGHT TO SUE IN COURT, HAVE YOUR CLAIMS HEARD BY A JURY, AND TO BE PART OF A CLASS OR COLLECTIVE ACTION, TO RESOLVE THESE DISPUTES, AS EXPLAINED IN MORE DETAIL IN THAT SECTION.
PLEASE REVIEW THIS AGREEMENT IN ITS ENTIRETY. WHEN YOU EXECUTE THIS AGREEMENT, YOU WILL BE LEGALLY BOUND BY ITS TERMS AND CONDITIONS. BY CLICKING ON “I AGREE TO THE USER AGREEMENT AND PRIVACY POLICY” AND REGISTERING FOR A USER ACCOUNT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE ARBITRATION AND CLASS ACTION PROVISIONS AND VIDEO RECORDING PROVISIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT CLICK “ACCEPT” OR ENGAGE IN ANY TUTORING SERVICES.
NOTE TO KIDS under 13 years of age: Individuals under the age of 13 are not permitted to use the Platform and Tutoring Services until their parent or legal guardian provides verifiable consent to Talking Chalks.
1. Independent Contractor Relationship between Student and Tutor, Talking Chalks is a Marketplace Provider. You acknowledge that Tutors are independent contractors operating an independent business enterprise who use the Platform to offer and provide Tutoring Services to Students. Student acknowledges and agrees that Talking Chalks has no responsibility for, control over, or involvement in the scope, nature, quality, character, timing or location of any work or services performed by Tutor, including any work or services that any individual affiliated with the Tutor may provide, either as an employee, independent contractor, or otherwise. Student further represents, acknowledges, and warrants that throughout the Term it shall at all times treat Tutor as independent contractors and that Student will take no action that is inconsistent with such classification.
1.1 Student acknowledges that Talking Chalks is not an employer of, or joint employer or integrated or single enterprise with any Tutor or Student. Talking Chalks is not responsible for the performance or non-performance of any Tutor or Student. Each Tutor is solely and entirely responsible for their own acts and for the acts of their employees, subcontractors, affiliates and agents. Each Student is solely and entirely responsible for their own acts and for the acts of their employees, subcontractors, affiliates, and agents. Talking Chalks is under no obligation to ensure any Session is completed to Student’s satisfaction.
1.2 Student acknowledges that Tutor is, and shall at all times be and remain, an independent contractor providing services to identified Students utilizing the Talking Chalks platform. Nothing in this Agreement or otherwise shall be construed as identifying Tutor, Student, or their personnel or representatives as an employee, agent, or legal representative of Talking Chalks or any of Talking Chalks’s related or affiliated entities for any purpose, and Student and Tutor and any respective representatives shall not hold themselves out as employees of Talking Chalks in any capacity.
1.3 Student is not to transact business, incur obligations, sell goods, receive payments, solicit goods or services, enter into any contract, or assign or create any obligation of any kind, express or implied, on behalf of Talking Chalks or any of Talking Chalks’s related or affiliated entities, or to bind in any way whatsoever, or to make any promise, warranty, or representation on behalf of Talking Chalks or any of Talking Chalks’s related or affiliated entities regarding any matter, except as expressly authorized in this Agreement or in another writing signed by an authorized officer of Talking Chalks. Further, Student shall not use Talking Chalks’s trade names, logos, trademarks, service names, service marks, or any other proprietary designations without the prior written approval of Talking Chalks.
1.4 Student understands that, except as otherwise specifically agreed between Student and Tutor, Tutor will provide all equipment, tools, materials, and labor that he or she needs to perform the Tutoring Services agreed to with Student and that Talking Chalks will provide no equipment, tools, materials, or labor that may be needed to perform the Tutoring Services under this Agreement. Talking Chalks will, however, provide both Student and Tutor with access to the Platform to facilitate access to available, optional support resources and materials, if Student so chooses.
1.5 Tutor is solely responsible for scheduling the timing of Tutoring Services and agrees to do as consistent with the Student’s scheduling requirements. Student agrees and understands that Talking Chalks plays no role in scheduling or delivery of Tutoring Services.
1.6 Student understands and agrees that Tutor is solely responsible for determining how Tutoring Services will be completed, as well as the preparation and additional work necessary to properly perform Tutoring Services to the satisfaction of Student.
1.7 Student understands that Tutor may hire employees or engage contractors or subcontractors (at his or her sole expense) to assist with providing the Tutoring Services; however, Tutor’s employees or subcontractors may not be used to deliver Tutoring Services on behalf of Tutor without the express written permission of Student. Student understands and acknowledges that Tutor acknowledges that they remain solely and exclusively responsible for the timely provision of the Tutoring Services to meet Student’s requirements and specifications.
1.8 Student understands and acknowledges that Tutor shall remain responsible for and shall pay all operational costs, expenses, and disbursements relating to operating Tutor’s business (including the activities of any employees or subcontractors) and the provision of the Tutoring Services under this Agreement.
2. Privacy Policy and Guidelines. Talking Chalks’s Privacy Policy (link) is incorporated into this Agreement. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information. When using the Platform, you are subject to any additional posted guidelines or rules applicable to specific services, offers, and features (the “Guidelines”). All such Guidelines are incorporated by reference into this Agreement. The Talking Chalks Kids Children’s privacy policy (link) is also incorporated into this Agreement to the extent you are using the Talking Chalks Kids Platform and Tutoring Services. Note, when Talking Chalks Kids is used, both privacy policies need to be incorporated as the main privacy policy applies to certain pages or functions performed by an adult on the Talking Chalks Kids site.
3. Modification. Talking Chalks may make modifications to this Agreement (“Changes”) at any time. Such Changes will be effective as to existing users after Talking Chalks provides notice of the Changes, either through the Platform user interface or sent to the e-mail address associated with your user account; and when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes. If you provide written notice that you do not accept a proposed Change or decline to expressly agree to a proposed Change, Talking Chalks may terminate this Agreement and your use of the Platform.
4. License to Use the App. If you have downloaded the App, then subject to your compliance with all the terms and conditions of this Agreement, Talking Chalks grants you a limited, nonexclusive, nontransferable, revocable license to install and use the App on a compatible mobile device that you own or control for your personal, non-commercial purposes, in each case in the manner enabled by Talking Chalks. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the “Usage Rules” set forth in Apple’s App Store Terms of Service. Any use of the Apps other than for private, non-commercial use is strictly prohibited.
5. Ownership; Proprietary Rights. The Platform is owned and operated by Talking Chalks. The videos, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service, Sites and Apps (“Talking Chalks Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Talking Chalks Materials are the property of Talking Chalks or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Talking Chalks or its affiliates and/or third-party licensors. Except as expressly authorized by Talking Chalks, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Talking Chalks Materials.
6. Mobile Services. Use of the Apps requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Apps.
7. Services.
7.1 Service Generally. The Platform allows you to request and engage in a video chat session on demand with an independent contractor in the business of providing tutoring services, who is native speaker (“Tutor(s)”) for purposes of practicing conversation skills in the language of your choice (a “Session”). You agree to only engage in Sessions for your personal, non-commercial purposes and agree not to record, copy, redistribute, broadcast, publicly perform or publicly display any such Session, except as allowed by this Agreement.
7.2 Tutor Availability. Sessions are subject to Tutor availability, and Talking Chalks does not guarantee that any particular (or any) Tutor will be available at any given time. You hereby acknowledge that all Tutors are independent contractors offering their services to you via the Service and are not employees or agents of Talking Chalks. Talking Chalks makes no representation or warranty regarding the results of engaging in a Session, including without limitation that your experience with a Tutor will meet your expectations or goals.
7.3 Tutor Integrity. Tutors are subject to periodic check-ins. You acknowledge that Talking Chalks has no duty to verify any stated credentials, experience or qualifications of any Tutor, and that Talking Chalks does not conduct any screening of Tutors other than as expressly set forth in this Section 7.2. If you wish to submit a complaint regarding any Tutor, please contact Talking Chalks at [email protected].
7.4 Payment. Students pay for Tutoring Services by the minute or through a payment plan. If you access the Service through the Apps, payment will occur through the Apple App Store. If you access the Service through the Sites, payment will occur through a third party payment systems (e.g., PayPal). All payment terms and conditions are governed by your applicable agreements with Apple and the third party payment system.
7.5 Refunds. Purchased minutes are non-refundable, and minutes used for a Session are non-creditable. If you have been mistakenly charged for minutes you did not purchase, you may request a refund. If minutes were purchased on the Apps, refunds will be handled by the Apple App Store as described at http://support.apple.com/kb/HT1933. If you purchased minutes through the Sites, refunds can be handled by the third party payment system or Talking Chalks. If you feel you have been charged in error, please contact Talking Chalks at [email protected]. A refund request must be received by Talking Chalks within thirty (30) days of the charge in order to be considered.
7.6 Timing. If you pay Tutors through purchased minutes, you will be charged per minute of the Session after the first minute of the Session. If you terminate a Session within 59 seconds of beginning the Session, you will not be charged. If you run out of purchased minutes prior to a Session ending, the Session will terminate and you will be prompted to purchase more minutes.
7.7 General. All fees are nonrefundable. All fees are payable in U.S. dollars except as otherwise enabled by the Apple App Store. Fees displayed to you are exclusive of any taxes that may be due in connection with such fees, and you agree to pay any such taxes that may be due, other than taxes based on Talking Chalks’s net income. You also agree to pay Talking Chalks any costs and expenses incurred by Talking Chalks, including reasonable attorney’s fees, in recovering any fees due hereunder.
8. Sessions
8.1 Hardware and Software. Engaging in a Session requires compatible hardware and may require the download and installation of specified software. You are solely responsible for acquiring and installing any such hardware and software and for determining compatibility with your system, and hereby assume all risk and liability associated with such hardware and software. You acknowledge that it is your responsibility to review and comply with all applicable license agreements and other terms and conditions relating to all software you use in connection with Sessions and the Platform, generally.
8.2 Prohibited Behavior in Sessions. You agree not to engage in any activity that would infringe, misappropriate or violate any third party intellectual property rights or that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate. You agree to engage in Sessions for the sole purpose of practicing your language skills. You acknowledge that Talking Chalks does not have any duty to monitor Sessions or have any control over the content of a Session, and that you may be exposed to material that you find objectionable in the course of engaging in a Session and that Talking Chalks shall have no liability in connection therewith. Talking Chalks may, at any time, remove any user that violates this Agreement. To report any inappropriate activity, please e-mail Talking Chalks at [email protected].
8.3 False Information by Student. You agree that you will not: (i) publish falsehoods or misrepresentations; (ii) submit material that is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; or (iii) post advertisements or solicitations of business. Talking Chalks does not endorse any opinion, recommendation, or advice expressed by Tutors or other students, and Talking Chalks expressly disclaims any and all liability in connection with such opinions, recommendations or advice. You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Talking Chalks with respect thereto.
8.4 Recording; Content. Sessions may be recorded or monitored. You hereby consent to: (i) the monitoring or recording of any Session you engage in, including your likeness therein; (ii) Talking Chalks copying and using such recordings for any business purpose, including without limitation for purposes of Tutor evaluation, Tutor training, dispute resolution and improving the Service; (iii) such recording being made available to the other party to the Session; (iv) such recordings being made available for you to review, (v) such recording being used or disclosed by Talking Chalks to the extent required by law or legal process or to the extent Talking Chalks deems necessary for purposes of enforcing or protecting its rights or the rights of a third party. You hereby waive any rights of publicity, privacy or other rights under applicable law to the extent such rights could be used to prevent Talking Chalks from using Session recordings as contemplated hereunder, and hereby grant a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicensable, and transferable license under any intellectual property rights you may have in or to any Session recording or content therein to Talking Chalks to copy, modify, distribute and use such recording and content for its business purposes or as required by law or legal process.
9. Account Data.
9.1 Registration. Students must register and create an account through the Platform. Registration requires you to: (i) create a unique user name and password, (i) provide an e-mail address, (iii) indicate your current country of domicile, (iv) indicate your native language, (v) indicate the language you wish to practice, and (vi) indicate your gender. Note that Talking Chalks does not have access to your payment card information. You agree that the information you provide, at all times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept confidential, accurate and up-to-date at all times.
9.2 Password. When you register you will be asked to provide a password. As you will be responsible for all charges and other activities that occur under your password, and you agree to keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you will immediately notify Talking Chalks. You may be liable for the losses incurred by Talking Chalks or others due to any unauthorized use of your account.
9.3 Personal Use. Your Talking Chalks account, and the minutes you purchase for use with your account, are for your use only. You agree not to share your username and password or otherwise permit any other person to access or use your Talking Chalks account or purchased minutes.
10. Prohibited Uses.
Unlawful Use. As a condition of your use of the Platform, you will not use the Platform for any purpose that is unlawful or prohibited by this Agreement. Access to the Talking Chalks Materials, Sites or Apps from territories where their contents are illegal is strictly prohibited. Students and Tutors are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, e-mail, or privacy.
10.1 Unauthorized Use. You may not use the Platform in any manner that in our sole discretion could damage, disable, overburden, or impair it or interfere with any other party’s use of the Platform. You may not intentionally interfere with or damage the operation of the Platform, or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, or other malicious code. You may not remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Platform, features that prevent or restrict the use or copying of any content accessible through the Platform, or features that enforce limitations on the use of the Platform. You may not attempt to gain unauthorized access to the Platform, or any part of it, other accounts, computer systems or networks connected to the Platform, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Platform or any activities conducted on the Platform. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Platform. You agree neither to modify the Platform in any manner or form, nor to use modified versions of the Platform, including (without limitation) for obtaining unauthorized access to the Platform.
10.2 Robots. The Sites may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Platform.
10.3 Trademark Restrictions. You may not utilize framing techniques to enclose any trademark, logo, or other Talking Chalks Materials without our express written consent. You may not use any Talking Chalks logos, graphics, or trademarks, including as part of any meta tags or any other “hidden text,” without our express written consent, except as permitted in this Agreement.
11. Availability of Service. Talking Chalks may make changes to or discontinue any of the media, products or services available within the Platform at any time, and without notice. The media, products or services on the Platform may be out of date, and Talking Chalks makes no commitment to update these materials on the Platform.
12. Notice. Except as explicitly stated otherwise, all notices and other communications shall be in writing and shall be deemed to have been duly given or made (i) with delivery by hand, when delivered, (ii) with delivery by certified or registered mail, postage prepaid.
13. Member Disagreements. You alone are responsible for your engagement with Tutors or other Students. Talking Chalks reserves the right, but has no obligation, to monitor disagreements between you and Tutors or other Students.
14. Termination. You agree that Talking Chalks, for any or no reason, may terminate this Agreement or your use of the Platform, and remove and discard all or any part of your account at any time by providing written notice to the other party. Talking Chalks may also at any time discontinue providing access to the Platform, or any part thereof, with or without notice. You agree that any termination of your access to the Platform or any account you may have or portion thereof may be effected without prior notice, and you agree that Talking Chalks shall not be liable to you or any third-party for any such termination. Talking Chalks does not permit copyright infringing activities on the Platform, and reserves the right to terminate access to the Platform, and remove all content submitted, by any infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Platform may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Talking Chalks may have at law or in equity.
15. Disclaimers; No Warranties. THE SERVICE, SITE, APP AND ANY THIRD-PARTY, MEDIA, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TALKING CHALKS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
TALKING CHALKS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT THAT THE FEATURES CONTAINED IN THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, SITE, APP OR THE SERVERS THAT MAKE THEM AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TALKING CHALKS, AND ITS SUPPLIERS, LICENSORS AND PARTNERS, DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT TALKING CHALKS NOR ITS SUPPLIERS, LICENSORS OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD, OR OTHERWISE OBTAIN MEDIA, MATERIAL, OR OTHER DATA THROUGH THE USE OF THE PLATFORM AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
16. Indemnification; Hold Harmless. You agree to indemnify and hold Talking Chalks, and its affiliated companies, and its suppliers, licensors and partners, harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Platform, violation of the rights of any other person or entity, or any breach of this Agreement. Talking Chalks reserves the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
17. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL TALKING CHALKS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE TALKING CHALKS MATERIALS ON THE SERVICE, THE SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH TALKING CHALKS, EVEN IF TALKING CHALKS OR A TALKING CHALKS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TALKING CHALKS’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL TALKING CHALKS’S OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE (WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF: (A) THE TOTAL AMOUNTS YOU HAVE PAID TO TALKING CHALKS HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE DATE OF THE CLAIM AND (B) FIFTY (50) U.S. DOLLARS.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED TO YOU BY THIRD PARTIES OTHER THAN TALKING CHALKS AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED BY YOU THROUGH ANY LINKS PROVIDED ON THE SERVICE.
14. Arbitration Agreement and Class and Collective Action Waiver. Talking Chalks and Student mutually agree to resolve any and all covered justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This arbitration agreement requires the arbitration of any claims that Talking Chalks or Student may have against the other or against any of their:
• officers, directors, employees, subcontractors, or agents in their capacity as such or otherwise,
• direct or indirect parents and subsidiaries, and
• affiliates, agents, successors or assigns,
each and all of which may enforce this arbitration agreement as direct or third-party beneficiaries.
This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and applies to any and all claims or controversies, past, present or future, arising out of or relating to this Agreement, this arbitration agreement, Tutor’s independent contractor classification, Tutor’s provision of services, registration for and/or use of the Platform, any payments made to Tutor through the Platform or arising out of or relating to the acceptance or performance of services arranged through the Platform, the termination of this Agreement, claims of harassment, retaliation, or discrimination and all other aspects of a Tutor’s relationship (or the termination of its relationship) with Talking Chalks, whether arising under federal, state or local statutory and/or common law. Covered claims include, without limitation, claims arising under the Fair Credit Reporting Act, Defend Trade Secrets Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §1981, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, 8 U.S.C. § 1324b (unfair immigration related practices), the Pregnancy Discrimination Act, Equal Pay Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state or local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local statutory and legal claims. Student and Talking Chalks agree that the mutual obligations contained in this Agreement and to arbitrate disputes provide adequate consideration for this arbitration agreement.
17.1 If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (i) the name and address of the party seeking arbitration; (ii) a statement of the legal and factual basis of the claim; and (iii) a description of the remedy sought. Any demand for arbitration by Student must be delivered to Talking Chalks at 340 S Lemon Ave. #4343, Walnut, CA 91789. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
17.2 Class and Collective Action Waivers. Talking Chalks and Student mutually agree that by entering into this arbitration agreement to arbitrate, both waive their right to have any covered dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an Arbitrator will not have any authority to hear or arbitrate any class and/or collective claim (“Class Action Waiver”). Notwithstanding any other clause contained in this arbitration agreement or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an Arbitrator. The Class Action Waiver will be severable from this arbitration agreement in any case, in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void, or voidable. In such case, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
17.3 Except as otherwise stated in this arbitration agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
(a) The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the Arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened or a former judge from any jurisdiction.
(b) The location of the arbitration proceeding will be within 25 miles of the location in which Tutor provided services, unless the parties agree otherwise.
(c) Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that they will equally split all of the Arbitrator’s fees and costs. Each party will pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a claim that affords the prevailing party attorneys’ fees, the Arbitrator may award reasonable fees to the prevailing party as provided by law. If the law (including the common law) of the jurisdiction in which the arbitration is held requires a different allocation of arbitral fees and costs for this arbitration agreement to be enforceable, then such law will be followed, and any disputes in that regard will be resolved by the Arbitrator.
(d) The Arbitrator is authorized to issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(e) Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(f) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(g) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the Arbitrator’s decision or award in any court having jurisdiction.
(h) Either Talking Chalks or Student may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this section may be rendered ineffectual.
17.4 Regardless of any other terms of this arbitration agreement, claims may be brought before, and remedies awarded by, an administrative agency to the full extent applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act (such as the National Labor Relations Board, the U.S. Department of Labor or the Equal Employment Opportunity Commission). This arbitration agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress.
17.5 The AAA Rules referenced herein may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com.
17.6 This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. If any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. This arbitration agreement survives after the termination of this Agreement and/or after Student ceases any relationship with Talking Chalks. Notwithstanding any contrary language, this arbitration agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by both Student and an authorized representative of Talking Chalks.
18. Language. Any action brought under this Agreement shall be conducted in the English language. If Tutor is located in France or Quebec, Canada, the following clause applies: The parties hereby confirm that they have requested that this Agreement be drafted in English. Les parties contractantes confirment qu'elles ontexigé que le présent contrat et tous les documents associés soient redigés en anglais.
19. Communications. Under this Agreement, Student consents to receive communications from the Company electronically. The Company will communicate with Student by e-mail or by posting notices on the Sites or Apps. Student agrees that all agreements, notices, disclosures, and other communications that the Company provides to Student electronically satisfy any legal requirement that such communications be in writing.
20. Complete Agreement. This Agreement contains the entire understanding between the parties and supersedes, replaces and takes precedence over any prior understanding or oral or written agreement between the parties respecting the subject matter of this Agreement. There are no representations, agreements, arrangements, nor understandings, oral or written, between the parties relating to the subject matter of this Agreement that are not fully expressed herein.
21. Severability. In the event any provision of this Agreement shall be held invalid, the same shall not invalidate or otherwise affect in any respect any other term or terms of this Agreement, which term or terms shall remain in full force and effect.
22. Successors and Assigns. This Agreement shall be binding upon Student and inure to the benefit of Talking Chalks and its successors and assigns, including, without limitation, any entity to which substantially all of the assets or the business of Talking Chalks are sold or transferred. Tutor shall not be entitled to assign this Agreement or any of Student’s rights or obligations hereunder.
23. Survival. Sections 1, 2, 6, 7, 8 and 11 through 31 will survive any termination of this Agreement.
24. Non-Waiver. No delay or omission by the Company in exercising any right under this Agreement shall operate as a waiver of that or any other right. A waiver or consent given by the Company on any one occasion shall be effective only in that instance and shall not be construed as a bar or waiver of any right on any other occasion.
25. Amendment. This Agreement may be amended or modified only by a written instrument executed by both the Company and Student.
26. Counterparts. This Agreement may be executed in two (2) signed counterparts, each of which shall constitute an original, but all of which taken together shall constitute the same instrument.
27. Headings. The headings and other captions in this Agreement are included solely for convenience of reference and will not control the meaning and interpretation of any provision of this Agreement.
28. Governing Law; Jurisdiction. Other than the Arbitration Agreement and Class Action Waiver, which shall be governed by the Federal Arbitration Act, this Agreement will in all respects be is governed by the laws of the State in which Student resides if Student is a U.S. resident and the United States of America without reference to its principles of conflicts of laws.
29. More Information; Complaints. The services hereunder are offered by Talking Chalks, with e-mail: [email protected]. If you are a California resident, we are required to inform you that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (916) 445-1254 or (800) 952-5210. Hearing impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700.
30. Signature. This Agreement may be signed and is enforceable by electronic signature, digital signature, wet signature, and facsimile signature.
