For purposes of these Terms, the "Site" shall mean www.elite-app.com and any other Elite Instructors’ branded websites, web pages, mobile applications and mobile websites operated by Elite Instructors, Inc. (“Elite”, "Elite-app.com" or "we") in the United States, and the "Services" shall mean any of the various services that Elite provides through the Site or any other channels, including over the telephone. The terms "Site" and "Services" also include Elite’s mobile application, to the extent explicitly described herein. In addition, these Terms do not apply to third party entities that may use the Elite Site or Services. Such entities' use of the Elite Site and Services are subject to separate terms that they agreed when they registered with Elite-app.com.
· Please read these Terms and any applicable Additional Terms before using the Site or the Services. By using the Site or the Services, you hereby represent, warrant, understand, agree to and accept these Terms and any applicable Additional Terms in their entirety whether or not you register as a user of the Site or Services ("Registered Users").
· This Agreement contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against Elite to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Section 12 "Agreement to Arbitrate") by the later of July 1, 2015 or 30 days after the date you accept these Terms for the first time. Unless you opt out: (1) you will only be permitted to pursue claims against Elite on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1.1 About Our Services
Elite offers various Services to help its users find tutors and coordinate with students. The Services we offer include, among others:
§ We enable individuals seeking tutoring services ("Tutor Seekers") to find and book tutors seeking to be hired for tutoring sessions on the Site, and we enable individuals and entities who provide tutoring services ("Tutors") to post profiles on the Site and receive requests for tutoring sessions. .
§ We provide search functionality on the Site to allow Tutor Seekers to narrow the pool of Tutors they are interested in meeting based on their needs and preferences, and we provide a communications platform that allows Tutor Seekers and Tutors to communicate without sharing contact information.
§ We provide tools and information to help Tutor Seekers and Tutors make more informed decisions, such as (i) ratings and reviews of Tutors, and (ii) a background check screening requirement for each Tutor.
§ We offer a mobile application, which allows users and their Tutors to stay connected by sharing updates and other information. Users may also invite family and friends to participate.
§ We offer a service that facilitates the payment by Tutor Seekers to Tutors via an electronic payments platform including, but not limited to, credit cards and PayPal.
Our Services continue to grow and change. Please refer to our Site for further information about the Services we provide.
1.2. Limitations of our Services
We offer a variety of Services to help our users find, coordinate, and maintain tutoring services. However, we do not employ any Tutors. Except as set forth below, Tutor Seekers are the potential employers of Tutors and are responsible for compliance with all applicable employment and other laws in connection with any employment relationship they establish (such as applicable payroll, tax and minimum wage laws).
Further, we do not have control over the quality, timing, or legality of the services actually delivered by Tutors, nor of the integrity, responsibility or actions of Tutor Seekers or Tutors. We do not refer or recommend either Tutor Seekers or Tutors nor do we make any representations about the suitability, reliability, timeliness, and accuracy of the services provided by Tutors or the integrity, responsibility or actions of Tutor Seekers or Tutors whether in public, private or offline interactions.
Tutor Seeker, tutor and other user content is primarily user generated, and we do not control or vet user generated content for accuracy as a general matter. Elite does not assume any responsibility for the accuracy or reliability of any information provided by Tutors or Tutor Seekers on or off the Site. We may offer certain Registered Users the opportunity to verify certain information such as their email address or cell phone number. If we indicate that a Registered User has verified certain information, it means that the user has complied with the process we have established for verifying such information. However, we do not guarantee, nor do we represent or warrant as to, the accuracy of such information.
Elite is not responsible for the conduct, whether online or offline, of any Tutor Seeker, Tutor or other user of the Site or Services. Moreover, Elite does not assume and expressly disclaims any liability that may result from the use of information provided on our Site. All users, including both Tutor Seekers and Tutors, hereby expressly agree not to hold Elite (or its officers, directors, shareholders, employees, subsidiaries, other affiliates, successors, assignees, agents, representatives, advertisers, marketing partners, licensors, independent contractors, recruiters, corporate partners or resellers, hereinafter "Affiliates") liable for the actions or inactions of any Tutor Seeker, Tutor or other third party or for any information, instruction, advice or services which originated through the Site, and, to the maximum extent permissible under applicable law, Elite and its Affiliates expressly disclaims any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
1.3. User Responsibilities
Any screening of a Tutor Seeker or Tutor and his/her or its information by Elite is limited and should not be taken as complete, accurate, up-to-date or conclusive of the individual's or entity's suitability as a Tutor. Registered Users are solely responsible for interviewing, performing reference checks on, verifying information provided by, and selecting an appropriate Tutor for themselves or persons affiliated with them.
To be eligible to use our Services, you must meet the following criteria:
§ The Site and the Services are currently available only to individuals who are legally in the jurisdiction of the United States or the territory of Puerto Rico. If you reside outside the United States or Puerto Rico, visit our Site homepage for a listing of other countries where Elite subsidiaries or affiliates offer similar services.
§ If you are registering to be a Tutor, you must be (18) years of age or older and permitted to legally work within the United States.
§ Neither you nor any member of your household may have ever been (i) the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs, or (ii) registered, or currently required to register, as a sex offender with any government entity.
§ You must not be a competitor of Elite or using our Services for reasons that are in competition with Elite.
§ If you are an individual Tutor Seeker you must not have had fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year (or five or more if you are seeking services in the State of California).
2.2. Representations and Warranties
By requesting to use, registering to use and/or using the Site or the Services, you represent and warrant that you have the right, authority and capacity to enter into these Terms and you commit to abide by all of the terms and conditions hereof.
In addition, you represent and warrant that you and any person affiliated with you who will use the Services (i) have never been the subject of a complaint, restraining order or any other legal action involving, arrested for, charged with, or convicted of any felony, any criminal offense involving violence, abuse, neglect, fraud or larceny, or any offense that involves endangering the safety of others, dishonesty, negligence or drugs, and (ii) are not nor have ever been registered, and are not currently required to register, as a sex offender with any government entity.
3.1. Registration, Posting, and Content Restrictions
The following rules pertain to "Content", defined as any communications, images, sounds, videos, and all the material, data, and information that you upload or transmit through the Services, or that other users upload or transmit, including without limitation any content, messages, photos, audios, videos, reviews or profiles that you publish or display (hereinafter, "Post"). By transmitting and submitting any Content while using our Services, you agree, represent and warrant as follows:
§ You are responsible for providing accurate, current and complete information in connection with your registration for use of the Site and the Services.
§ You will register your account in your own legal name, even if you are seeking tutoring for another individual or persons affiliated with you.
§ All Content you Post will be in English as the Site and Services are not currently supported in any other languages.
§ You are solely responsible for any Content that you Post on the Site, or transmit to other users of the Site. You will not Post on the Site, or transmit to other users, any defamatory, inaccurate, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, defamatory, 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), or advocate, promote or assist any unlawful act such as (by way of example only) copyright infringement or computer misuse, or give the impression that any Content emanates from Elite where this is not the case. You will not provide inaccurate, misleading, defamatory or false information to Elite or to any other user of the Site, and all opinions stated as part of Content must be genuinely held. Without limiting the foregoing, you represent and warrant to us that you have the right and authority to Post all information you Post about yourself or others, including without limitation that you have authorization from a parent or guardian of any minor who is the subject of any Content you Post to Post such Content.
§ You understand and agree that Elite may, in its sole discretion, review and delete any Content, in each case in whole or in part, that in the sole judgment of Elite violates these Terms or which Elite determines in its sole discretion might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users of the Site or others.
§ You have the right, and hereby grant, to Elite, its Affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute your Content and to prepare derivative works of, or incorporate into other works, such Content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that public posting and use of your Content by Elite will not infringe or violate the rights of any third party.
§ Your use of the Service, including but not limited to the Content you Post on the Service, must be in accordance with any and all applicable laws and regulations.
§ Elite is not responsible for any claims relating to any inaccurate, untimely or incomplete information provided by users of the Site.
Opinions, advice, statements, offers, or other information or content made available on the Site or through the Services, but not directly by Elite, are those of their respective authors. Such authors are solely responsible for such content. Elite does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Site or available through the Services, or (ii) adopt, endorse or accept responsibility for the accuracy or reliability of any opinion, advice, or statement made by any party that appears on the Site or through the Services. Under no circumstances will Elite or its Affiliates be responsible for any loss or damage resulting from: a) your reliance on information or other content posted on the Site or transmitted to or by any user of the Site or Services; or b) reviews or comments made about you on the Site by other users.
You agree that Elite has no obligation to remove any reviews or other information posted on the Site about you or any other person or entity. If you disagree with a review, you may Post one rebuttal to the review, provided your rebuttal complies with these Terms. You may not terminate your registration and re-register in order to prevent a review from being associated with your account. The author of a review can always remove or request removal of a review they have written.
To the maximum extent permitted by law, Elite disclaims any liability whatsoever for any misstatements and/or misrepresentations made by any users of the site. Users do hereby represent, understand and agree to hold Elite harmless for any misstatements and/or misrepresentations made by or on behalf of them on this site or in any other venue.
3.2. Exclusive Use
If you are a Tutor Seeker, you may use your account only to find tutoring for yourself, your parents, your children, your grandchildren or individuals for whom you are otherwise the legal guardian. If you are a Tutor, you may use your account only to find tutoring sessions for yourself. You are responsible for all activity on and use of your account, and you may not assign or otherwise transfer your account to any other person or entity.
3.3. Prohibited Uses
By using the Site or Services, you agree that you will not under any circumstances:
§ use the Site, Services, or any information contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
§ use the Site or Services for any unlawful purpose, for any purpose not expressly intended by Elite or for the promotion of illegal activities;
§ attempt to, or harass, abuse or harm another person or group;
§ use another user's Elite account;
§ provide false or inaccurate information when registering an account on Elite, using the Services or communicating with other Registered Users;
§ attempt to re-register with Elite if we have terminated your account for any or no reason or terminate your registration and re-register in order to prevent a review from being associated with your account;
§ interfere or attempt to interfere with the proper functioning of the Services;
§ make any automated use of the system, or take any action that we deem to impose or to potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
§ bypass any robot exclusion headers or other measures we take to restrict access to the Services or use any software, technology, or device to scrape, spider, or crawl the Services or harvest or manipulate data;
§ use the communication systems provided by or contacts made on the Services for any commercial solicitation purposes;
§ publish or link to malicious content intended to damage or disrupt another user's browser or computer.
In order to protect our users from prohibited activity, we reserve the right to take appropriate actions, including but not limited to restricting the number of phone numbers a Tutor Seeker may view or the number of emails a user may send in any 24-hour period to a number which we deem appropriate in our sole discretion.
Should Elite find that you violated the terms of this Section or any terms stated herein, Elite reserves the right, at its sole discretion, to immediately terminate your use of the Site and Services. By using the Site and/or Services, you agree that Elite may assess, and you will be obligated to pay, a $10,000 daily penalty for scraping, either in a manual or automatic manner, Tutor or Tutor Seeker information, including but not limited to, names, addresses, phone numbers, or email addresses, copying copyrighted text, or otherwise mis-using or mis-appropriating Site content, including but not limited to, use on a "mirrored", competitive, or third party site. This fee shall be in addition to any other rights Elite may have under these Terms or applicable law.
Further, in order to protect the integrity of the Site and the Services, Elite reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Site.
4.1 Tutors Will Be Subject to Background Checks and Can Authorize the Sharing of Them with Tutor Seekers
Elite, through a third party service provider, performs background checks on all tutor applicants. Elite may, through its third party service provider, perform any of the following background check services from consumer reporting agencies: preliminary background checks, preferred and preferred + background checks and premier background checks (collectively "Background Checks"). Preliminary, preferred and preferred + background checks must be initiated and consented by the tutor applicants as part of Elite’s screening process. The Background Check services require payment of a separate fee, which will be covered by Elite.
Each of these Background Check services are regulated by the Fair Credit Reporting Act (the "FCRA"), and the background reports resulting from these services are considered "consumer reports" under the FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports.
Elite will receive a copy of each Background Check you order or authorize through the Services. See Section 4.3 below for information regarding Elite's use of these Background Checks. If you authorize a preliminary, preferred or preferred + Background Check about yourself, you will be emailed a copy of the results if it does not come back clean. You are responsible for making sure that the email addresses you provide to Elite is correct, knowing that sensitive information will be sent to it.
If you have ordered a Background Check through the Services, 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.
4.2. Special Responsibilities of Tutor Seekers under FCRA
Tutor Seekers may request and receive a copy of a Background Check on a Tutor, subject to the Tutor's explicit instructions about who may have access to such a report.
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 the 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/os/statutes/fcrajump.shtm. FCRA governs the use of reports obtained from a consumer reporting agency, such as the third party consumer reporting agencies we use.
4.3 Elite May Review and Use Background Checks You Order or Authorize About Yourself
By using the Site or Services as a Tutor, you acknowledge and agree Elite 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 Elite 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 Elite 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 Elite.
4.4 Elite May Order and Use Background Checks About You
By using the Site or Services as a Tutor, you hereby acknowledge and agree that Elite 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"). Elite may order these checks when you register with Elite 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 profile, etc.).
These Internal Background Checks are also regulated by the Fair Credit Reporting Act (the "FCRA"), and the background reports resulting from these services are considered "consumer reports" under the FCRA. Consumer reports may contain information on your character, general reputation, personal characteristics, and mode of living, including but not limited to consumer credit, criminal history, workers' compensation, driving, employment, military, civil, and educational data and reports.
You understand and agree that Elite may review the information provided by the third party consumer reporting agency and that Elite retains the right to terminate your Elite registration based on the information it receives from these checks, even if such information was subsequently dismissed. If Elite 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 Elite 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 Elite) within the time period specified in your notice.
BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW ELITE 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 ELITE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE CHECKS TO BE PERFORMED.
4.5. Elite May Regularly Verify Your Identity and the Accuracy of Your Representations and Warranties
By registering as a Tutor, you authorize Elite, and acknowledge that for purposes of promoting the safety and integrity of its Site and Service, Elite 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 Elite 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 Elite.
You also hereby represent, understand and expressly agree that Elite 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 ELITE TO PERFORM THE VERIFICATION CHECKS DESCRIBED ABOVE. IF YOU DO NOT WANT THESE VERIFICATION CHECKS TO BE PERFORMED, YOU SHOULD NOT USE ELITE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE VERIFICATION CHECKS TO BE PERFORMED.
4.6 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 not always accurate or complete (or based on information that is accurate or complete) and that the specific records searched, and the comprehensiveness of the search, varies by the type of Background Check ordered as well as the state and county where the check is performed. For example, many jurisdictions only include felony conviction records (and not, for example, misdemeanor or arrest records) in the national criminal data base, which is the only data source utilized for preliminary background checks other than the sexual offender registry. Moreover, some states include only registered sex offenders in that database.
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 indemnify and hold harmless Elite from any loss, liability, damage, or costs that may result from such access, use, or sharing of this information regardless of the cause. Elite does not assume and expressly disclaims, and you hereby agree to release Elite from, any loss, liability, damage, or costs that may result from the use of information provided in a background report including, without limitation, the inaccuracy or incompleteness of any such information.
You expressly acknowledge that Elite has no obligation to perform Background Checks, Internal Background Checks, or Verification Checks on any Registered Users. To the extent Elite 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 the Services.
Should Elite determine that you are not eligible to use the Services, have violated any terms stated herein or in any of the Additional Terms, are not suitable for participation as a Registered User, or have misused or misappropriated Site content, including but not limited to use on a "mirrored", competitive, or third party site, Elite reserves the right, at its sole discretion, to immediately terminate your access to all or part of the Site, to remove your profile and/or any content posted by or about you from the Site, and/or to terminate your registration in the Site, with or without notice.
In any event, Elite also reserves the right, in its sole discretion, to terminate your access to all or part of the Site, to remove your profile and/or any content posted by or about you from the Site, and/or to terminate your registration in the Site for any reason or no reason, with or without notice. If we terminate your registration, we have no obligation to notify you of the reason, if any, for your termination.
Following any termination of any individual's use of the Site or the Services, Elite reserves the right to send a notice thereof to other Registered Users with whom we believe the individual has corresponded.
Our decision to terminate an individual's registration and/or to notify other Registered Users with whom we believe the individual has corresponded does not constitute, and should not be interpreted or used as information bearing on, the individual's character, general reputation, personal characteristics, or mode of living.
Links from the Site to external sites (including external sites that are framed by Elite) or inclusion of advertisements do not constitute an endorsement by Elite of such sites or the content, products, advertising and other materials presented on such sites or of the products and services that are the subject of such advertisements, but are for users' reference and convenience.
Users access external sites at their own risk. It is the responsibility of the user to evaluate the content and usefulness of the information obtained from other sites. Elite does not control such sites, and is not responsible for their content. Just because Elite has hyperlinks to such sites does not mean that Elite endorses any of the material on such sites, or has any association with their operators.
You understand that use of the Services may result in charges to you for the services you receive from a Tutor ("Charges"). After you have received services obtained through your use of the Service, Elite will facilitate your payment of the applicable Charges on behalf of the Tutor, as such Tutor’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Tutor. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Elite. You retain the right to request lower Charges from a Tutor for services received by you from such Tutor at the time you receive such services. Elite will respond accordingly to any request from a Tutor to modify the Charges for a particular service.
All Charges are due immediately and payment will be facilitated by Elite using the preferred payment method designated in your account, after which Elite will send you a receipt by email. If your primary account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Elite may, as the Tutor's limited payment collection agent, use a secondary payment method in your account, if available.
As between you and Elite, Elite reserves the right to establish, remove and/or revise Charges for any or all services obtained through the use of the Services at any time in Elite's sole discretion. Elite may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services from a Tutor at any time prior to such Tutor's arrival, in which case you may be charged a cancellation fee.
This payment structure is intended to fully compensate the Tutor for the services. Any representation by Elite (on the Site or in Elite's marketing materials) to the effect that tipping is "voluntary," "not required," and/or "included" in the payments you make for services provided is not intended to suggest that Elite provides any additional amounts, beyond those described above, to the Tutor. You understand and agree that, while you are free to provide additional payment as a gratuity to any Tutor who provides you with services or goods obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Tutor.
Elite uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services Agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells.
We are not an employer of Tutors. Tutor Seekers may seek the services of a Tutor through the use of the Site or Services, and Tutors may post profiles regarding their services. However, if a Tutor Seeker agrees on the provision of services from an individual, company or agency he or she identifies through any of the Services, such agreement is solely between the Tutor Seeker and the Tutor; Elite is not a party to any such agreement. By using the Site or our Services, you do hereby represent, understand, and expressly agree to hold Elite harmless for any claim or controversy that may arise from any disputes between you and any Tutor Seeker, Tutor or other user(s) of the Site. You agree to take reasonable precautions in all interactions with Tutor Seekers, Tutors or other users of the Site or the Services, particularly if you decide to meet offline. By using the Site or the Services, you do hereby agree to report any alleged improprieties of any users therein to Elite immediately by notifying Elite of the same via electronic correspondence.
10.1. No Warranty
The information and materials contained on the Site, including text, graphics, information, links or other items are provided "as is", "as available". Further, opinions, advice, statements, offers, or other information or content made available through the Services, but not directly by Elite, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELITE DOES NOT: (1) WARRANT THE ACCURACY, ADEQUACY OR COMPLETENESS OF THIS INFORMATION AND MATERIALS; (2) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN ELITE; (3) WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, FREE FROM COMPUTER VIRUSES, UNINTERRUPTED, ALWAYS AVAILABLE, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (4) GIVE ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ELITE EXPRESSLY EXCLUDES ALL CONDITIONS, WARRANTIES AND OTHER TERMS WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR THE LAW OF EQUITY AND DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THIS INFORMATION AND MATERIALS.
IN ADDITION AND WITHOUT LIMITING THE FOREGOING, ELITE MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED REGARDING THE SUITABILITY OF ANY USER OF OUR SITE TO PROVIDE SERVICES AS A TUTOR OR TO EMPLOY THE SERVICES OF A TUTOR.
10.2. Assumption of Risk
You assume all risk when using the Site and the Services, including but not limited to all of the risks associated with any online or offline interactions with users of the Site or the Services. You agree to take all necessary precautions when interacting with other Site visitors or Registered Users.
10.3. Limitation of Liability
Incidental Damages and Aggregate Liability. In no event will Elite be liable for any indirect, special, incidental, or consequential damages, losses or expenses arising out of or relating to the use or inability to use the Site or Services, including without limitation damages related to any information received from the Site or Services, removal of content from the Site, including profile information, any email distributed to any user or any linked web site or use thereof or inability to use by any party, or in connection with any termination of your ability to access the Site or Services, failure of performance, error, omission, interruption, defect, delay in operation or transmission, computer virus or line or system failure, even if Elite, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL ELITE'S AGGREGATE LIABILITY, IN ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE SERVICES OR THE SITE, EXCEED THE PRICE PAID BY YOU FOR YOUR ACCOUNT, OR, IF YOU HAVE NOT PAID ELITE FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00 OR ITS EQUIVALENT.
No Liability for non-Elite Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ELITE BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, AND/OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM ANYONE'S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE, OR TRANSMITTED TO OR BY ANY USERS OR ANY OTHER INTERACTIONS WITH OTHER REGISTERED USERS OF THE SITE OR SERVICES, WHETHER ONLINE OR OFFLINE. THIS INCLUDES ANY CLAIMS, LOSSES OR DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
In addition to the preceding paragraphs of this section and other provisions of these Terms, any advice that may be posted on the Site is for informational purposes only and is not intended to replace or substitute for any professional financial, medical, legal, or other advice. Elite makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person following the information offered or provided within or through the Site. If you have specific concerns or a situation arises in which you require professional or medical advice, you should consult with an appropriately trained and qualified specialist.
It is Elite's policy to respond to notices of alleged copyright infringement with the Digital Millennium Copyright Act ("DMCA"). If you believe any materials accessible on or from our Site infringe your copyright, you may request removal of those materials (or access thereto) from the Site by contacting Elite's copyright agent (identified below) and providing the following information:
1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) e-mail address.
4. A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.
Elite's agent for copyright issues relating to this Site is as follows:
Elite Instructors, Inc.
135 Main St., 9th Floor
San Francisco, CA 94118
In an effort to protect the rights of copyright owners, Elite maintains a policy for the termination, in appropriate circumstances, of Registered Members and other users of the Site who are repeat infringers.
12.1 Agreement to Arbitrate
This Section 12 is referred to in these Terms as the "Arbitration Agreement". Unless you opt-out in accordance with the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and Elite or an Affiliate, whether relating to these Terms (including any alleged breach thereof), the Services, the Site, or otherwise, shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Arbitration Agreement, except you may assert individual claims in small claims court, if your claims qualify. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
12.2 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND ELITE AGREE THAT EACH OF US MAY BRING CLAIMS 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 ELITE 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 ELITE USERS.
12.3 Pre- Arbitration Dispute Resolution
Elite is always interested in resolving disputes amicably and efficiently. So before you commence arbitration, we suggest that you contact us to explain your complaint, as we may be able to resolve it without the need for arbitration. You may contact us via email at email@example.com or at Elite Instructors, Inc., Attn: Legal Department, 135 Main St., 9th Floor, San Francisco, CA 94118
12.4 Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA's Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as a court would, including without limitation, the limitation of liability provisions in Section 10. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
To commence an arbitration against Elite, you must complete a short form, submit it to the AAA, and send a copy to Elite at Elite Instructors, Inc., Attn: Legal Department, 135 Main St., 9th Floor, San Francisco, CA 94118. 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.
The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less you or Elite may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Elite subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by you and/or Elite, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Elite users, but is bound by rulings in prior arbitrations involving the same Elite user to the extent required by applicable law.
12.5 Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA's Rules, unless otherwise provided in this Agreement to Arbitrate. If you demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Elite will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Elite will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Elite for all fees associated with the arbitration paid by Elite on your behalf that you otherwise would be obligated to pay under the AAA's rules.
All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court decides that any term or provision of this Arbitration Agreement other than Section 12.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 12.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms will continue to apply.
12.8 Opt-Out Procedure
You can choose to reject this Arbitration Agreement by mailing us a written opt-out notice ("Opt-Out Notice") in accordance with the terms of this Section. For new Elite users, the Opt-Out Notice must be postmarked no later than 30 Days after the date you accept these Terms for the first time or July 1, 2015, whichever is later. You must mail the Opt-Out Notice to Elite Instructors, Inc., Attn: Legal Department, 135 Main St., 9th Floor, San Francisco, CA 94118. The Opt-Out Notice must state that you do not agree to the Arbitration Agreement and must include your name, address, phone number, and the email address(es) used to log in to Elite account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Arbitration Agreement. If you opt out of the Arbitration Agreement, all other terms of these Terms will continue to apply. Opting out of the Arbitration Agreement has no effect on any previous, other, or future arbitration agreements that you may have with us.
12.9 Future Changes to this Arbitration Agreement
Notwithstanding any provision in these Terms to the contrary, you and we agree that if we make any change to this Arbitration Agreement (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Elite prior to the effective date of the change. Moreover, if we seek to terminate this Arbitration Agreement from these Terms, such termination shall not be effective until 30 days after the version of these Terms not containing the Arbitration Agreement is posted to the Site, and shall not be effective as to any claim that was filed in a legal proceeding against Elite prior to the effective date of removal.
These Terms, and any dispute between you and Elite, shall be governed by the laws of the State of California without regard to principles of conflicts of law, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of Section 12, the Arbitration Agreement. Unless you and we agree otherwise, in the event that the Arbitration Agreement 12 is found not to apply to you or to a particular claim or dispute (except for small-claims court actions), either as a result of your decision to opt-out of the Arbitration Agreement or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Elite must be resolved exclusively by a state or federal court located in the State of California. You and Elite agree to submit to the personal jurisdiction of the courts located within the State of California for the purpose of litigating all such claims or disputes.
Nothing in this Agreement shall be construed as making either party the partner, joint venturer, agent, legal representative, employer, contractor or employee of the other. Neither party shall have, or hold itself out to any third party as having any authority to make any statements, representations or commitments of any kind, or to take any action, that shall be binding on the other, except as provided for herein or authorized in writing by the party to be bound. The invalidity, illegality or unenforceability of any term or provision of these Terms shall in no way effect the validity, legality or enforceability of any other term or provision of these Terms. In the event a term or provision is determined to be invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and these Terms shall be enforceable as so modified. Each Affiliate (as defined in Section 1.2) is expressly made a third party beneficiary of this Agreement and may enforce this Agreement directly against you. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto.
If you have any questions or need further information as to the Site or Services provided by Elite, or need to notify Elite as to any matters relating to the Site or Services please contact Elite at:
Elite Instructors, Inc.
135 Main St., 9th Floor
San Francisco, CA 94118