LumenEd User Terms of Service
LumenEd (“LumenEd”, “our”, “us” or “we”) provides an online platform known as lumened.io that connects tutors with individuals seeking tutoring services (each a “User”) and other services related thereto (collectively, the “Services”) through our website and virtual classroom, accessible at https://lumened.io (the “Site”) and https://live.lumened.io (the “Classroom”) respectively. The Services include the ability for Users and Tutors (each as defined below) to interact via the LumenEd platform’s interface or other methods as may be made available by LumenEd from time to time.
These User Terms of Service govern your access to and use of the Site, the Services and the Collective Content (as hereinafter defined).
(a) “Account” means the user profile you create by registering as a User on the Site in accordance with these User Terms of Service.
(b) “Content” means all text, graphics, images, software, audio, video, information or other files or materials.
(c) “Collective Content” means the LumenEd Content and the User Content.
(d) “Monthly Credit” means the amount available to be credited towards Tutor Fees in a given month as reflected in your Account.
(e) “LumenEd Content” means Content that LumenEd makes available through the Site, Classroom or the Services, including any Content licensed from a third party, but excludes any User Content.
(f) “Tutor” means a tutoring or educational services provider accessible to Users via the Services.
(g) “Tutor Fee” means the amount deducted from a User’s Monthly Credit on a proportionate basis in accordance with the length of a Tutor Session.
(h) “Tutor Services” mean any tutoring or educational services that a tutor may provide to a User that is related to a User’s Account or the Services.
(i) “Tutor Session” means the period of time during which Tutor Services are provided by a Tutor to a User calculated on a per minute basis.
(j) “User” means you, a person who seeks and/or schedules Tutor Services for or on behalf of a student or yourself and includes a parent or guardian of a student if such student is a minor.
(k) “User Content” means Content that a Tutor or a User posts, uploads, publishes, submits or transmits to be made available through the Site or Services in connection with the Tutor Services or otherwise, including, without limitation, questions and related answers posted by Users and Tutors via the Services.
As a User, your use of the Services is governed by the terms and conditions set forth herein together with LumenEd’s applicable policies. THE SITE, CLASSROOM AND SERVICES COMPRISE AN ONLINE MARKETPLACE WHICH FACILITATES THE CONNECTION BETWEEN USERS AND TUTORS FEATURED ON THE SITE AND VIA THE SERVICES. LUMENED CHARGES A FEE BASED ON A PERCENTAGE OF THE FEES EARNED BY A TUTOR WHEN HE OR SHE PROVIDES TUTOR SERVICES TO A USER(S). YOU UNDERSTAND AND AGREE THAT LUMENED IS NEITHER A PARTY TO ANY AGREEMENT ENTERED INTO BETWEEN A USER AND A TUTOR NOR DOES LUMENED HAVE ANY CONTROL OVER THE TUTOR SERVICES OR THE CONDUCT OF TUTORS AND OTHER USERS OF THE SITE, CLASSROOM AND SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD. ANY MEETINGS (VIRTUAL OR OTHERWISE) BETWEEN USERS, TUTORS OR ANY OTHER THIRD PARTIES AND ANY PURCHASES OF TUTOR SERVICES PROVIDED BY TUTORS ARE DONE AT THE PARTIES’ SOLE RISK.
- ELIGIBILITY; ACCEPTANCE OF TERMS
The Services made available through the Site are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. By creating an Account, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. LumenEd may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions. Users under the age of 18 must at all times use the Services only in conjunction with and under the supervision of a teacher, parent or legal guardian who is at least 18 years of age. In all such cases, such teacher, parent or guardian is the User, and is responsible for any and all LumenEd Account activities.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SITE OR SERVICES, OR YOUR LUMENED ACCOUNT, OR BY POSTING ANY CONTENT ON THE SITE OR THROUGH THE SERVICES IN CONNECTION WITH YOUR TUTOR SERVICES OR OTHERWISE, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY, THESE USER TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE USER TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE OR SERVICES. If you accept or agree to these User Terms of Service on behalf of a corporation or other legal entity, you represent and warrant that you have the authority to bind that corporation or other legal entity to these User Terms of Service and, in such event, “you” and “your” will refer and apply to that corporation or other legal entity.
- SITE AND SERVICE OPERATION
You acknowledge and agree that:
(a) that the Site, Classroom and Services are intended only to facilitate the provision of Tutor Services via our online platform and its video and text chat and document collaboration interface;
(b) LumenEd is not a provider of tutoring services;
(c) LumenEd’s role is solely to facilitate the availability of the Site, Classroom and Services to Tutors and Users through the marketplace created by the Site, Classroom and Services; and
(d) LumenEd is not a contracting agent or representative of any Tutor. Tutors are independent contractors and are not employees or agents of LumenEd.
- ACCOUNT REGISTRATION AND USAGE
(a) You can register to join the Service as a User by logging into your Account using certain third party social networking sites (“SNS”) (including, but not limited to Facebook) via our Site. When you register by logging into an SNS via our Site, we will obtain the Personal Information you have provided to that SNS (including, but not limited to your “real” name, profile picture, email address, list of SNS friends and any other information that you make available via the applicable SNS) from the account you have with such SNS and use that information to create your account and you will become a User; the information we obtain may depend on the information you provide to the applicable SNS and/or the privacy settings you have set or applied with the applicable SNS.
(b) When you register with LumenEd and set up your Account, you: (i) agree to provide LumenEd with accurate and complete information; (ii) agree to promptly update your Account information with any new information that may affect the operation of your Account; and (iii) authorize LumenEd, directly or through third parties, to make any inquiries we consider necessary or appropriate to verify your Account information or the information you provide to us related to any transactions you initiate via the Site, Classroom and Services. You will not use false identities or impersonate any other person or use a username or password that you are not authorized to use.
(c) You are responsible for safeguarding and maintaining the confidentiality of your username, password and corresponding Account information. You agree not to disclose your password to any third party and that you are entirely and solely responsible for any and all activities or actions that occur pursuant to the use of your Account, whether or not you have authorized such activities or actions. You will immediately notify LumenEd of any unauthorized use of your username, password or Account.
(d) You agree that you will not permit, enable, introduce or facilitate persons who do not have an Account to have access to the features of the Site, Classroom and Services only made available to registered Users.
Users must pay all costs associated with the services through LumenEd. These costs include but are not limited to: (a) a tutor’s hourly rate as listed; (b) travel and transportation fees; (c) cancellation fees as described in a tutor’s cancellation policy, which can be found on a tutor’s profile on the Site; (d) a service fee as listed and (e) the Platform Fee arranged between the Tutor and LumenEd. By using the LumenEd Site, Classroom or Services, you are agreeing to make all of your payments to tutors listed on LumenEd through the LumedEd system. This is true for all payments related to tutoring lessons including any agreed upon travel or other compensation adjustments. Such additional payments should be negotiated between you and the tutor and incorporated into the tutor’s hourly rate. You will pay in advance for any Tutor Sessions. It the responsibility of the user and tutor to deliver the session within the scheduled time. Cancellations and re-scheduled sessions may be refunded based on the tutor’s cancellation policy.
7. GUARANTEE AND TUTOR SESSION REFUNDS
In case you are not completely satisfied after 30 minutes of your first Tutor Session, we will provide you with a free half hour Tutor Session with a new tutor. You must call or email us within 72 hours of completing your initial LumenEd Tutor Session and we’ll help connect you with a new tutor. If you are not completely satisfied with any Tutor Session, you may, within five (5) business days of the completion of such Tutor Session, initiate a dispute through your Account to seek a refund of the amount charged for the sessions. LumenEd will review all such disputes and will, in its sole discretion, accept or reject a refund request. If a refund is accepted, the appropriate amount will be returned (and/or the applicable credit card charge will be reversed) and your Tutor will not be paid for his or her provision of the relevant Tutor Services. Users who use this Guarantee and Tutor Session Refund privilege multiple times will be subject to review, which may result in the suspension and/or termination of your Account entirely.
- INTERACTIONS WITH USERS AND PROVISION OF TUTOR SERVICES
As a User you acknowledge and agree to the following:
(a) LumenEd acts as a technology service that facilitates the provision of Tutor Services by Tutors to Users through an online marketplace. LumenEd does not make editorial or managerial decisions concerning, or otherwise exercise control or supervision over, a Tutor’s Tutor Services, and LumenEd will not be held responsible for any Tutor’s failure to comply with applicable laws or regulations. Without limiting the terms of the “Limitation of Liability” section below, LumenEd is not responsible for the use or exchange of any information, files or goods between Tutors and Users. Further, LumenEd does not control, nor is it responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Tutors or Users, including, without limitation, the Tutor Services provided or other information made available through the Site, Classroom and Services.
(b) Users are solely responsible for their interactions with Tutors. The User understands that while LumenEd professionally screens all Tutors for the purposes of confirming identification, one (1) academic credential, teaching licensure (the “Background Checks”) and endeavours to provide Users with a reliable, safe and secure online environment, LumenEd cannot guarantee the accuracy of the Background Checks and the use of the Site by Users and the receipt of Tutor Services is at the risk and discretion of each User and the User agrees to take reasonable precautions in all interactions with Tutors by way of the exercise of caution, discretion, common sense and judgment in, using the Site or receiving Tutor Services and disclosing information, including any personal information to Tutors, the provision of which is not required by the Site or the Tutor Services.
(c) LumenEd reserves the right to contact Users, in compliance with applicable law, in order to evaluate compliance with LumenEd’s rules and policies and these User Terms of Service. If you believe that a Tutor or another User has violated the law or is defrauding, threatening or otherwise endangering anyone, LumenEd urges you to immediately contact the police directly for assistance.
(d) You will comply with all applicable local, provincial, federal and foreign laws, treatises and regulations in connection with your use of the Site, Classroom and Services.
(e) You are solely responsible for all equipment necessary to access and use the Site, Classroom and Services and to receive Tutor Services.
(f) You will not use the Site or Services in any manner that harasses a Tutor or another User or could otherwise interfere with any other party’s use or enjoyment of the Site, Services or Tutor Services. You will respect the privacy of other Users and will not use the Site, Services or Tutor Services for unwelcome, rude or abusive communications or in any other disrespectful or detrimental manner, as determined by LumenEd in its sole discretion.
(g) You will not use the Site, Classroom nor the Services to invite a Tutor to meet in person nor may you receive Tutor Services from a Tutor outside of the Site, Classroom or Services.
- NO ENDORSEMENT
LumenEd does not endorse any Tutor and you are responsible for determining and confirming the identity and suitability of the Tutors with whom you interact as a result of your use, or use by any third party, of the Site, Classroom and Services. LumenEd is not your agent or the agent of any Tutor and will not be responsible for any damages or harm which results from your interactions, or those of anyone else, with Tutors or other Users. By using the Site or Services, you, and any third party that may use the Site, Classroom and Services under your Account, agree as follows: (i) any legal remedy or liability that you or such third party seek to obtain for the actions or omissions of a Tutor, User or other third party will be limited to a claim against such Tutor, User or third party who caused you, or such third party, harm; and (ii) you will not attempt to impose liability on, or seek any legal remedy from LumenEd with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with others you may come into contact with as a result of your use of the Site, Classroom and Services.
The Site, Services and Collective Content are protected by copyright, trademark, and other laws of Canada and foreign countries. You acknowledge and agree that the Site, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of LumenEd and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or Collective Content.
- LUMENED LICENSES
Subject to your compliance with the terms and conditions of these User Terms of Service, LumenEd grants you a limited, non-exclusive, non-transferable license: (i) to view, download and print any LumenEd Content solely for your personal and non-commercial purposes; and (ii) to access, modify, edit and download any User Content to which you are permitted access solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Services or Collective Content, except as expressly permitted in these User Terms of Service. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by LumenEd or its licensors, except for the licenses and rights expressly granted in these User Terms of Service.
- LICENSE GRANTED BY USER
By making any User Content available on or through the Site or Services, you hereby grant the following license to LumenEd, which LumenEd may exercise solely in connection with the Services, including its promotion of the Services, directly or indirectly: a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense to other users of the Services (including Users), to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content. LumenEd does not claim any ownership rights in any User Content and nothing in these User Terms of Service will be deemed to restrict any rights that you may have to use and exploit any User Content.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents and releases that are necessary to grant to LumenEd and to the rights in such User Content, as contemplated under these User Terms of Service; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or LumenEd’s use of the User Content (or any portion thereof) on, through or by means of the Site or Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
- THIRD PARTY SERVICES
You understand and agree that receiving Tutor Services may require use of a third party website or service (each a “Third Party Service”). Your use of any Third Party Service is voluntary. You shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software you may decide to use to receive any Tutor Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to use of any Third Party Service. LumenEd will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such Third Party Service.
If you decide to provide feedback, comments and suggestions for improvements to the Site or Services (“Feedback”), you may do so by emailing us at email@example.com. You acknowledge and agree that if you submit any Feedback to us, you hereby grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub-licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
- GENERAL PROHIBITIONS
You agree not to:
(a) post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s copyright, trademark, patent, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
(b) use, display, mirror or frame the Site, or any individual element within the Site or Services, LumenEd’s name, any LumenEd trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without LumenEd’s express written consent;
(c) access, tamper with, or use non-public areas of the Site, LumenEd’s computer systems, or the technical delivery systems of LumenEd’s providers;
(d) attempt to probe, scan, or test the vulnerability of any LumenEd system or network or breach any security or authentication measures;
(e) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by LumenEd or any of LumenEd’s providers or any other third party (including another user) to protect the Site, Services or Collective Content;
(f) attempt to access or search the Site, Services or Collective Content or download Collective Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by LumenEd or other generally available third party web browsers;
(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
(h) use any meta tags or other hidden text or metadata utilizing a LumenEd trademark, logo URL or product name without LumenEd’s express written consent;
(i) use the Site, Services or Collective Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these User Terms of Service;
(j) forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Collective Content to send altered, deceptive or false source-identifying information;
(k) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Collective Content;
(l) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site or Services;
(m) collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
(n) impersonate or misrepresent your affiliation with any person or entity;
(o) violate any applicable law or regulation; or
(p) encourage or enable any other individual to do any of the foregoing.
LumenEd will have the right to investigate and prosecute violations of any of the above to the fullest extent permitted by applicable law. LumenEd may involve and cooperate with law enforcement authorities in prosecuting Users who violate these User Terms of Service. You acknowledge that LumenEd has no obligation to monitor your access to or use of the Site, Services or Collective Content or to review or edit any Collective Content, but has the right to do so for the purpose of operating the Site, Classroom and Services, to ensure your compliance with these User Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. LumenEd reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that LumenEd, at its sole discretion, considers to be in violation of these User Terms of Service or otherwise harmful to the Site or Services.
The Site or Services may contain links to third-party websites or resources. You acknowledge and agree that LumenEd is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by LumenEd of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products, or services on or available from such websites or resources.
LumenEd reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these User Terms of Service, at any time and without prior notice. If we modify these User Terms of Service we will post the modification on the Site or provide you with notice of the modification. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified User Terms of Service. If the modified User Terms of Service are not acceptable to you, your only recourse is to cease using the Site, Classroom and Services.
- TERMINATION AND ACCOUNT CANCELLATION
If you breach any of these User Terms of Service, LumenEd will have the right to suspend or disable your Account or terminate these User Terms of Service, at its sole discretion and without prior notice to you. LumenEd reserves the right to revoke your access to and use of the Site, Services and Collective Content at any time, with or without cause. In the event LumenEd terminates these User Terms of Service for your breach you will remain liable for all amounts due hereunder. You may cancel your Account at any time by sending an email to firstname.lastname@example.org.
THE SITE, CLASSROOM AND SERVICES ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. LUMENED AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE, CLASSROOM AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE SITE, CLASSROOM AND SERVICES. LUMENED DOES NOT WARRANT THAT THE SITE, CLASSROOM AND SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, CLASSROOM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SITE, CLASSROOM AND SERVICES WILL BE CORRECTED IN A TIMELY MANNER OR AT ALL, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE.
YOU ACKNOWLEDGE AND AGREE THAT: (A) LUMENED DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS; (B) LUMENED WILL NOT BE RESPONSIBLE FOR ANY OF THE FOREGOING ACTIVITIES; (C) YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS; AND (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LUMENED OR THROUGH THE SITE, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH TUTORS AND OTHER USERS OF THE SITE, CLASSROOM AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INTERACTION WITH TUTORS OR USERS VIA THE SERVICES OR OTHERWISE. YOU UNDERSTAND THAT LUMENED DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF TUTORS AND OTHER USERS OF THE SITE OR SERVICES. . LUMENED MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF TUTORS OR OTHER USERS OF THE SITE OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH TUTORS AND OTHER USERS OF THE SITE, CLASSROOM AND SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES.
You agree to defend, indemnify, and hold LumenEd, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your violation of these User Terms of Service, your access to or use of the Site, Services or Collective Content, your receipt of any Tutor Services, and any claim made by a third party as a result of your use of the Site or Services or your provision of any Tutor Services, including any claim alleging your infringement upon the copyrights, trademarks, trade secrets, patents or other intellectual property rights of such third party or in respect of your liability for Taxes, as outlined above under “Taxes”.
- LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND COLLECTIVE CONTENT REMAINS WITH YOU. NEITHER LUMENED NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH TUTORS, USERS OR OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LUMENED HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL LUMENED’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR COLLECTIVE CONTENT EXCEED THE AMOUNT OF ALL AMOUNTS YOU HAVE PAID IN CONNECTION WITH YOUR RECEIPT OF TUTOR SERVICES VIA THE SITE, CLASSROOM AND SERVICES DURING THE IMMEDIATELY PRECEDING 12-MONTH PERIOD, OR FIVE HUNDRED DOLLARS (CAD$500.00) (WHICHEVER IS LESS). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LUMENED AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- PROPRIETARY RIGHTS NOTICES
All trademarks, service marks, logos, trade names and any other proprietary designations of LumenEd used herein are trademarks or registered trademarks of LumenEd. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
- CONTROLLING LAW AND JURISDICTION
These User Terms of Service and any action related thereto will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflicts of law provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the provincial courts of Ontario located in the city of Toronto, Ontario, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
- ENTIRE AGREEMENT
These User Terms of Service constitute the entire and exclusive understanding and agreement between LumenEd and you regarding the Site, Services and Collective Content, and these User Terms of Service supersede and replace any and all prior oral or written understandings or agreements between LumenEd and you regarding the Site, Services and Collective Content.
You may not assign or transfer these User Terms of Service, by operation of law or otherwise, without LumenEd’s prior written consent, which consent may be delayed or withheld by LumenEd in its sole discretion. Any attempt by you to assign or transfer these User Terms of Service, without such consent, will be null and of no effect. LumenEd may assign or transfer these User Terms of Service, in its sole discretion, without restriction. Subject to the foregoing, these User Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these User Terms of Service, will be in writing and given: (i) by LumenEd via email (in each case to the e-mail address that you provide to us in establishing an Account, as you may amend from time to time); or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
- DISPUTE RESOLUTION
You and LumenEd agree that any dispute, claim or controversy between you and LumenEd, or otherwise arising out of or relating to these User Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or Services (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and LumenEd are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and LumenEd otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the “General” section, below, if this specific “Dispute Resolution” section is held to be unenforceable, then the entirety of this section will be deemed void, but without affecting the validity of the remainder of these User Terms of Service, which will remain in full force and effect. Except as provided in the preceding sentence, this section will survive any termination of these User Terms of Service. Any such arbitration contemplated by this section will be administered in accordance with the National Arbitration Rules of the ADR Institute of Canada then in effect, except as modified by this “Dispute Resolution” section. The place of such arbitration shall be Toronto, Ontario, Canada and the language of the arbitration will be English.
Notwithstanding the provisions of the “Modification” section above, if LumenEd changes this “Dispute Resolution” section after the date you first accepted these User Terms of Service (or accepted any subsequent changes to these User Terms of Service), you may reject any such change by sending us written notice (including by email to email@example.com) within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of LumenEd’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and LumenEd in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these User Terms of Service (or accepted any subsequent changes to these User Terms of Service).
The failure of LumenEd to enforce any right or provision of these User Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of LumenEd. Except as expressly set forth in these User Terms of Service, the exercise by either party of any of its remedies under these User Terms of Service will be without prejudice to its other remedies under these User Terms of Service or otherwise. If for any reason a court of competent jurisdiction finds any provision of these User Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these User Terms of Service will remain in full force and effect.