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These Terms of Use (the “Terms” or “Agreement”) set forth the terms and conditions under which individuals residing in the United States may use the Tutree Site and/or the Tutree Services (described below). Certain Tutree Services are subject to additional policies, rules and terms and conditions, which are set forth in the printed or online Service materials relating to those Services (“Additional Terms”).
For purposes of these Terms, the “Site” shall mean website.tutree.com and any other Tutree branded websites, web pages, mobile applications and mobile websites operated by Tutree, Inc. (“Tutree” or “we”) in the United States, and the “Services” shall mean any of the various services that Tutree provides through the Site or any other channels, including over the telephone, in-person or via electronic communication. The terms “Site” and “Services” also include Tutree’s mobile application and the services offered through that application as well as certain sites and services offered through any Tutree subsidiaries, to the extent explicitly described herein. In addition, these Terms do not apply to third party entities that may use the Tutree Site or Services. Such entities’ use of the Tutree Site and Services are subject to separate terms that they agreed when they registered with Tutree.
Tutree offers various Services to help its users find, locate and coordinate quality tutors and students. The Services we offer include, among others:
Our Services continue to grow and change. Please refer to our Site for further information about the Services we provide.
We offer a variety of Services to help our users find, locate and coordinate quality tutoring services. However, we do not employ any tutors.
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 students. We do not refer or recommend either students 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 students whether in public, private or offline interactions.
Any student or tutor content is primarily user generated, and we do not control or vet user generated content for accuracy as a general matter. Tutree does not assume any responsibility for the accuracy or reliability of any information provided by students or tutors on or off this 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.
Tutree is not responsible for the conduct, whether online or offline, of any student or tutor or other user of the Site or Services. Moreover, Tutree does not assume and expressly disclaims any liability that may result from the use of information provided on our Site. All users, including both students and tutors, hereby expressly agree not to hold Tutree (or Tutree’s 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 student, 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, Tutree and its Affiliates expressly disclaim any liability whatsoever for any damage, suits, claims, and/or controversies that have arisen or may arise, whether known or unknown therefrom.
Any screening of a student or tutor and his, her or its information by Tutree is limited and should not be taken as complete, accurate, up-to-date or conclusive of the individual’s suitability as an educator. Registered Users are solely responsible for verifying information provided by, and selecting an appropriate student or tutor for themselves.
To be eligible to use our Services, you must meet the following criteria:
To be eligible to use our Services, you must meet the following criteria:
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 Tutree’s 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 Service, you agree, represent and warrant as follows:
Opinions, advice, statements, offers, or other information or content made available on the Site or through the Service, but not directly by Tutree, are those of their respective authors. Such authors are solely responsible for such content. Tutree does not: (i) guarantee the accuracy, completeness, or usefulness of any information on the Site or available through the Service, 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 Service. Under no circumstances will Tutree 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 Service; or b) reviews or comments made about you on the Site by other users.
You agree that Tutree 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, Tutree 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 Tutree harmless for any misstatements and/or misrepresentations made by or on behalf of them on this site or in any other venue.
If you are a student or a parent of a student, you may use your account only to find tutoring services for yourself, your children 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.
If you are under eighteen (18) years of age and would like to participate in Tutree as a tutor (a “Teen Participant”), you may register to use the Site and Services but only if your parent or legal guardian consents to your registration.
By registering as a Parent Registered User, you hereby represent, warrant, understand, agree to and accept these Terms and any applicable Additional Terms in their entirety on behalf of yourself and your Teen Participant whether or not you use the Site or Services, including without limitation Tutree’s right to run the verification and background checks described in Section 4 below. You further understand and agree that you will ensure your Teen Participant’s compliance with these Terms and that you are responsible for any noncompliance by your Teen Participant.
If you are a Parent Registered User, you also agree that you are responsible for monitoring the account of your Teen Participant as well as your Teen Participant’s activities both on and off of the Site, including monitoring who your Teen Participant communicates with and meets both on and off the Site and with or from whom he or she agrees to provide or receive tutoring services.
By using the Site or Services of Tutree, you agree that you will not under any circumstances:
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 student 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 Tutree find that you violated the terms of this Section or any terms stated herein, Tutree 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 Tutree may assess, and you will be obligated to pay, a $10,000 daily penalty for scraping, either in a manual or automatic manner, student or tutor 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 Tutree may have under these Terms or applicable law.
Further, in order to protect the integrity of the Site and the Services, Tutree reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Site.
Tutree, through a third party service provider, performs background checks on all prospective tutors. Tutree 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”).
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.
Tutree will receive a copy of each Background Check ordered or authorized through Tutree. See Section 4.3 below for information regarding Tutree’s use of these Background Checks. You may elect to receive or obtain a copy of your Background Check. You will be emailed a copy of the results should you make such an election. You are responsible for making sure that the email addresses you provide to Tutree is correct, knowing that sensitive information will be sent to it.
Tutree will not share the results of a Background Check with any other site visitor or Registered User without the tutor’s specific consent.
Students 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, 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.
By using the Site or Services as a tutor, you acknowledge and agree Tutree may review and use any Background Checks ordered or authorized 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 and/or usership based on the information contained in such report, even if such information was subsequently dismissed.
If Tutree terminates your usership 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 Tutree 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 Tutree.
By using the Site or Services as a tutor, you hereby acknowledge and agree that Tutree 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”). Tutree may order these checks when you register or apply with Tutree 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 Tutree may review the information provided by the third party consumer reporting agency and that Tutree retains the right to terminate your Tutree registration based on the information it receives from these checks, even if such information was subsequently dismissed. If Tutree 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 Tutree 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 Tutree) within the time period specified in your notice.
BY AGREEING TO THESE TERMS AND USING OUR SITE, YOU AGREE TO ALLOW TUTREE 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 TUTREE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE CHECKS TO BE PERFORMED.
By registering as a tutor, you authorize Tutree, and acknowledge that for purposes of promoting the safety and integrity of its Site and Service, Tutree 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 Tutree 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 Tutree.
You also hereby represent, understand and expressly agree that Tutree 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 TUTREE TO PERFORM THE VERIFICATION CHECKS DESCRIBED ABOVE. IF YOU DO NOT WANT THESE VERIFICATION CHECKS TO BE PERFORMED, YOU SHOULD NOT USE TUTREE. NO FURTHER CONSENT FROM YOU IS REQUIRED FOR THESE VERIFICATION CHECKS TO BE PERFORMED.
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 Tutree from any loss, liability, damage, or costs that may result from such access, use, or sharing of this information regardless of the cause. Tutree does not assume and expressly disclaims, and you hereby agree to release Tutree 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 Tutree has no obligation to perform Background Checks, Internal Background Checks, or Verification Checks on any Registered Users. To the extent Tutree 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 Tutree 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 mis-used or mis-appropriated Site content, including but not limited to use on a “mirrored”, competitive, or third party site, Tutree 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 Tutree, with or without notice.
In any event, Tutree 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 Tutree, 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, Tutree 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.
Tutree will only use the information you provide on the Site or via other channels in accordance with our Privacy Policy. For more information, see our full Privacy Policy, the terms of which are incorporated herein.
Links from the Site to external sites (including external sites that are framed by Tutree) or inclusion of advertisements do not constitute an endorsement by Tutree 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 them at their own risk. It is the responsibility of the user to evaluate the content and usefulness of the information obtained from other sites. Tutree does not control such sites, and is not responsible for their content. Just because Tutree may have hyperlinks to such sites does not mean that Tutree endorses any of the material on such sites, or has any association with their operators.
Users further acknowledge that use of any site controlled, owned or operated by third parties is governed by the terms and conditions of use for those sites, and not by Tutree’s Terms of Use and Privacy Policy. Tutree expressly disclaims any liability derived from the use and/or viewing of links that may appear on this Site. All users hereby agree to hold Tutree harmless from any liability that may result from the use of links that may appear on the Site.
In order to utilize some Tutree Services or product offerings, the user of such Services or product offerings must pay Tutree either a recurring subscription or one-time fee. In addition, the user is responsible for any state or local sales taxes associated with the Services or product offerings purchased.
If you sign up for a Tutree paid membership subscription, you agree to pay Tutree all subscription charges associated with the plan you subscribe to as described on the Site at the time you subscribe and provide your payment information. You also authorize Tutree to charge your chosen payment provider according to the terms of the plan to which you subscribe. The subscription period and the amount and frequency of the charges will vary depending on the subscription plan you select. Tutree reserves the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
To the extent you elect to purchase other Services or product offerings we may offer for a fee, you authorize Tutree to charge your chosen payment provider for the Services and/or products you purchase. You agree that if Tutree already has your credit card on file as a result of prior purchases you have made, we may charge that credit card for the additional Services/products you purchase.
Tutree paid membership subscriptions will continue indefinitely until cancelled by the user. After your initial subscription commitment period, and again after any subsequent subscription period, your subscription will automatically renew for an additional equivalent period as the subscription term you originally selected and at the subscription rate and frequency disclosed to you on the Site when you originally subscribed, unless otherwise provided at the time you subscribed. If you sign up for a payment plan that allows you to be charged monthly over the subscription period and you decide to cancel your subscription during the subscription period, you acknowledge and agree that you will continue to be billed for the subscription on a monthly basis until its originally scheduled expiration date.
You may cancel your paid membership subscription by adjusting your account settings. If you cancel your subscription, you typically will be permitted to use your subscription until the end of your then-current subscription term. Your subscription will not be renewed after your then-current term expires, but your credit card will be charged, and you will be required to pay, any cancellation or other fees associated with your early termination and disclosed to you at the time you signed up for the subscription plan.
Except as set forth below, all payments for services/products are non-refundable and there are no refunds or credits for unused or partially used services/products or service/product cancellations. Notwithstanding the foregoing, if you have a paid membership subscription that is automatically renewed, we will refund the most recent charge to your credit card if (i) you cancel your subscription within thirty (30) days after the most recent charge, and (ii) you have not used your subscription during the current renewal period. The refund will apply to the most recent charge only. In addition, Tutree reserves the right to immediately downgrade or cancel your membership after payment of your refund. Tutree does not provide refunds or credits under any other circumstances, unless it determines in its sole discretion that a refund or credit is warranted due to extenuating circumstances, such as a duplicate account.
Tutree may offer limited-time free trial subscriptions to certain users from time-to-time. Users who sign up for a Service on a free trial basis may have limited access to the Service and/or features of the Site. If a user signs up for a free trial subscription, after the expiration of the free trial period, the user will be charged the price then in effect for a subscription to the Service, unless otherwise provided to him or her when he or she originally subscribed. If a user does not want to continue with the Service after the expiration of the free trial period, the student or tutor must cancel their subscription within thirty (30) days of being charged the subscription fee for the Service. Upon cancellation, the user’s credit card will be refunded for the amount of the most recent subscription charge so long as he or she has not used the subscription after the expiration of the free trial period.
We are not an employer of tutors. Students and parents of students may seek the services of a tutor through the use of the Site or Services, and tutors may post profiles regarding their credentials and services. Any issues concerning the conduct of a student or tutor including, without limitation, the services received by the student or payment due to the tutor, must be resolved directly by the student and the tutor. Tutree will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands or damages direct or indirect of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such issues. By using this Site or our Services, you do hereby represent, understand, and expressly agree to hold Tutree harmless for any claim or controversy that may arise from any disputes between you and any student, tutor or other user(s) of the Site. You agree to take reasonable precautions in all interactions with students, tutors or other users of the Site or the Services. By using the Site or the Services, you do hereby agree to report any alleged improprieties of any users therein to Tutree immediately by notifying Tutree of the same via electronic correspondence.
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 Tutree, 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, TUTREE 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 TUTREE; (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, TUTREE 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, TUTREE 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.
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.
No Liability for non-Tutree Actions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TUTREE 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. Tutree 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.
Incidental Damages and Aggregate Liability. In no event will Tutree 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 subscription or 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 Tutree, or representatives thereof, are advised of the possibility of such damages, losses or expenses. UNDER NO CIRCUMSTANCES WILL TUTREE’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 TUTREE FOR THE USE OF ANY SERVICES, THE AMOUNT OF $25.00 OR ITS EQUIVALENT.
By agreeing to these Terms, users of the Site and Services agree to indemnify, defend and hold harmless Tutree and its Affiliates from and against any and all claims, losses, expenses or demands of liability, including reasonable attorneys’ fees and costs incurred by Tutree and its Affiliates in connection with any claim by a third party (including an intellectual property claim) arising out of (i) materials and content you submit, post or transmit through the Site, or (ii) use of the Site or Services by you in violation of these Terms of Use or in violation of any applicable law. Users further agree that they will cooperate as reasonably required in the defense of such claims. Tutree and its Affiliates reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by users, and users shall not, in any event, settle any claim or matter without the written consent of Tutree. Users further agree to hold harmless Tutree and its Affiliates from any claim arising from a third party’s use of information or materials of any kind that users post to the Site.
It is Tutree’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 Tutree’s copyright agent (identified below) and providing the following information:
Tutree’s agent for copyright issues relating to this Site is as follows:
Copyright Agent
Legal Department
Tutree, Inc.
950 E Duane Ave. #200
Sunnyvale, CA-94085
In an effort to protect the rights of copyright owners, Tutree maintains a policy for the termination, in appropriate circumstances, of Members and other users of this Site who are repeat infringers.
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 Tutree or a Tutree 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.
YOU AND TUTREE 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 TUTREE 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 TUTREE USERS.
Tutree 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.
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 Tutree, you must complete a short form, submit it to the AAA, and send a copy to Tutree at Tutree, Inc., Attn: Legal Department. 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 Tutree may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Tutree 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 Tutree, 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 Tutree users, but is bound by rulings in prior arbitrations involving the same Tutree user to the extent required by applicable law.
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, Tutree may 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, Tutree may 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 Tutree for all fees associated with the arbitration paid by Tutree 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.
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 Tutree 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 March 1, 2015, whichever is later. 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 the Tutree 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.
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 Tutree 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 Tutree prior to the effective date of removal.
These Terms, and any dispute between you and Tutree, 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 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 Tutree must be resolved exclusively by a state or federal court located in the State of California. You and Tutree 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 Tutree, or need to notify Tutree as to any matters relating to the Site or Services please contact Tutree at:
Legal Department
Tutree, Inc.
950 E Duane Ave. #200
Sunnyvale, CA-94085
