Last Updated: February 10, 2016
THIS IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND BYATEACHER.
If you are asked to click your agreement to specific terms and conditions to access certain functions on any of the Sites (each a “Site Agreement”), the terms in the Site Agreement shall govern over any inconsistencies with these Terms, but only for the specific Site function described in that Site Agreement.
ONLY A VENUE
You agree and acknowledge that the Sites are only an advertising venue to facilitate the connection between individual teachers (“Teachers”) offering to sell goods and services based on their self-proclaimed personal skill sets (in each case, “Services”), and individual members of the local community (“Buyers”) interested in purchasing Services. The sole purpose of the Sites is to function as an online communications platform. ByATeacher is not involved in any actual transactions between Teachers and Buyer, nor does it have control over the quality, timing, or legality of the Services provided by Teachers. We make no representation, and give you no assurance whatsoever, that:
- Any users of the Sites, including Buyers and Teachers ( collectively “Users”): (i) are not misrepresenting their identity, qualifications, skill level, location or authority to enter into agreements regarding the provision of Services for any purpose, or (ii) are of legal age and capacity, and are legally authorized to enter into such agreements;
- A Teacher placing an advertisement for the sale of Services on the Sites is able to or will complete the transaction for the Services, or will deliver the Services to Buyer, or that a Buyer requesting particular Services is able to or will complete the purchase of such Services from a Teacher;
- A Teacher has truthfully and accurately described on the Sites his or her Services, qualifications or authorization to provide Services; or
- A particular Service listed on the Sites actually exists, or is (i) safe, reliable, suitable, or of any particular quality, or (iii) actually owned, controlled, or capable of being provided by any particular person or entity.
Teachers and Buyers may be subject to a vetting process before they can register an account with ByATeacher and offer or buy Services. Such vetting may include a requirement to upload documents for review and verification by ByATeacher prior to completing the registration process. ByATeacher may, but is not required to, review and verify any User’s eligibility as a Teacher or Buyer, including conducting background checks, verification of identity, and/or verification of relevant certification or licensure.
Although ByATeacher may perform verification checks of Users, as outlined above, ByATeacher cannot confirm that each User is who they claim to be and therefore, ByATeacher cannot and does not assume any responsibility for the accuracy or reliability of identity, qualification or background check information or any other information provided through the Sites. Please be aware that the information available on the Sites may not be 100% accurate, complete, or up to date, so do not use it as a substitute for your own due diligence, especially if you have concerns about a User’s background, qualifications, or criminal history. ByATeacher does not make any representation or warranty about the accuracy of the information available through the Sites or about the character or integrity of any User you may contact through the Sites.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER BYATEACHER NOR ITS AFFILIATES IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SITES AND YOU HEREBY RELEASE BYATEACHER AND ITS AFFILIATES FROM ANY LIABILITY RELATED THERETO. BYATEACHER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SITES OR INTERACTIONS WITH ANY OTHER USER OF THIS SITE, EITHER ONLINE OR OFFLINE.
BY USING THE SITES, YOU AGREE THAT ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF OTHER USERS OR OTHER THIRD PARTIES WILL BE LIMITED TO A CLAIM AGAINST THE PARTICULAR USERS OR OTHER THIRD PARTIES WHO CAUSED YOU HARM. YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON OR SEEK ANY LEGAL REMEDY FROM BYATEACHER WITH RESPECT TO SUCH ACTIONS OR OMISSIONS. ACCORDINGLY, WE ENCOURAGE YOU TO COMMUNICATE DIRECTLY WITH OTHER USERS ON THE SITES REGARDING SERVICES AND SERVICE PERFORMANCE. This limitation shall not apply to any claim by a Teacher against ByATeacher regarding the remittance of payments received from a Buyer by ByATeacher on behalf of a Teacher, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
CONTENT ON THE SITES
The Sites contain postings, text, images, messages, files, and other information and materials for download and viewing by individual Users, made available by ByATeacher, other Users, and advertisers, sponsors and other content contributors ("Content Contributors"). Portions of the Sites authored by ByATeacher or its authorized agents, contractors, and employees are referred to as "ByATeacher Content." Portions of the Sites authored by Users are referred to as "User Content." Portions of the Sites authored by other Content Contributors are referred to as "Third Party Content."
All ByATeacher Content on the Sites, including but not limited to photographs, videos, artwork, written text, graphics, designs, HTML, look and feel, software, typefaces, trademarks, and logos, is protected by federal and international trademark, copyright and other intellectual property laws and is the sole property of ByATeacher or its suppliers. ByATeacher Content is protected in all forms, media and technologies now known or hereinafter developed. ByATeacher owns the coordination, selection, arrangement and enhancement of such ByATeacher Content as a Collective Work under the United States Copyright Act, as amended. No portion of the ByATeacher Content may be reprinted, republished, modified, reproduced, or distributed in any form without the express written permission of ByATeacher. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the Sites without ByATeacher’s express prior written consent and, if applicable, the holder of the rights to the User Content. With respect to ByATeacher Content, any rights not expressly granted by these are reserved by ByATeacher. Although ByATeacher attempts to ensure the accurateness of the ByATeacher Content, it makes no guarantees whatsoever as to its correctness or accuracy. It is possible that the ByATeacher Content could include inaccuracies or errors, and that unauthorized additions, deletions and alterations could be made to ByATeacher Content by third parties. In the event that an inaccuracy arises, please inform ByATeacher so that it can be addressed. Information contained on the Sites may be changed or updated without notice.
The service marks and trademarks of ByATeacher, including without limitation “ByATeacher” and the ByATeacher logos are service marks owned by ByATeacher. Any other trademarks, service marks, logos and/or trade names appearing via the Sites are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
Use of User Content and Third Party Content:
All User Content and Third Party Content on the Sites are the responsibility of their respective owners. ByATeacher is not responsible for User Content and Third Party Content, and the views and opinions expressed in User Content and Third Party Content are not necessarily those of ByATeacher. ByATeacher cannot, and does not, review User Content or Third Party Content before they are made accessible through the Sites. Nevertheless, please be advised that User Content and Third Party Content may be protected by federal and international copyright, trademark or other laws, and your right to reprint, republish, modify, reproduce, or distribute User Content or Third Party Content may be limited accordingly.
Your Physical Likeness:
Each User who provides to ByATeacher any photograph, video or other reproduction of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”) in connection with their use of the Sites hereby irrevocably grants to ByATeacher the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to:
1. Use, reproduce, modify, or creative derivatives of such Physical Likeness, in and in connection with the exhibition, distribution, display, performance, transmission, and/or broadcasting on any and all media, including, without limitation, the Internet;
2. Use, and permit to be used, such Physical Likeness in the advertising, marketing, and/or publicizing of the Sites in any media; and
3. Use, and permit to be used, such User’s name and identity in connection with the Sites.
Each User hereby waives all rights and releases ByATeacher from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s Physical Likeness in connection with the Sites. Each User acknowledges that ByATeacher shall not owe any financial or other remuneration for using the Physical Likeness provided hereunder by such User, either for initial or subsequent transmission or playback, and further acknowledges that ByATeacher is not responsible for any expense or liability incurred as a result of such User’s Physical Likeness or participation in any recordings, including any loss of such recording data.
Any information and materials you provide to ByATeacher in connection with your registration for the Sites, any change or update made to your account information, and all other postings, text, images, messages, files, and/or other materials you post, transmit through, or link to the Sites (collectively, “Your Content”) are your sole responsibility. ByATeacher and the Sites merely provide a means for the transmission and dissemination of Your Content. ByATeacher acts merely as a passive conduit for your online distribution and publication of Your Content. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF OR ANY ACTIVITIES ASSOCIATED WITH ANY OF YOUR CONTENT. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON YOUR CONTENT OR OTHER CONTENT YOU FIND ON THE SITES ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL BYATEACHER BE LIABLE IN ANY WAY FOR YOUR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND RESULTING FROM YOUR CONTENT OR YOUR ACTIVITIES IN CONNECTION WITH THE SITES.
We do not pre-screen or approve Your Content and we have no obligation to monitor Your Content. However, we reserve the right to review, modify, monitor, distribute, refuse to post, or delete any of Your Content at our sole discretion. We reserve the right at all times and in our sole discretion to disclose any information we believe necessary to satisfy any law, regulation, legal process, or governmental request. By uploading, transmitting, or posting Your Content, you grant to us a perpetual, non-exclusive, worldwide, royalty-free license to use, copy, print, display, reproduce, modify, store, edit, publish, post, transmit, prepare derivative works, delete and distribute Your Content in whole or in part in connection with the Sites and to promote ByATeacher, your Listing, and the Sites in general.
If you are permitted to and choose to create an account on the Sites, you are the only person authorized to access and use your account. You will not give your username, password, or any other account information to a third party. You must immediately notify us of any known or suspected unauthorized use of your account or any known or suspected breach of security, including, but not limited to loss, theft, or unauthorized disclosure of your password. YOU ARE RESPONSIBLE FOR ALL ACTIVITY ON YOUR ACCOUNT. Any fraudulent, misleading, abusive, or illegal activity may be grounds for termination of your account at our sole discretion and we may refer you to appropriate law enforcement agencies. You agree to maintain accurate and complete contact information in connection with your account, and to update this information promptly in the event it changes.
The Sites allows for you to post reviews of specific Teachers, including a one to five star rating. Reviews are a great way to learn about a Teacher’s Services and reputation, help good Teachers build a strong reputation, or help warn other buyers about a poor experience. By leaving a review, you acknowledge that:
1. Reviews are opinions and not the opinion of ByATeacher, and have not been verified or approved by ByATeacher;
2. You should undertake your own research to be satisfied that a specific Teacher is the right person for a particular Service;
3. Your review will be publicly displayed on the Teacher’s Listing and review pages;
4. ByATeacher has a right to edit, delete, hide modify, copy, distribute and create derivate works of any review you post to the Sites;
5. Reviews may not contain private information, obscene, racist, or harassing language or imagery, or advertising or spam; and
6. Reviews may not be about things outside the Teacher’s control.
Extortion is not allowed on ByATeacher. Any attempt to manipulate reviews through threats, intimidation, or bribery is considered extortion and is strictly prohibited. Shilling is also not allowed on ByATeacher. Shilling is the fraudulent inflation of a Teacher’s reputation by use of an alternate account. The intent of shilling is to make a Teacher look more desirable by increasing the Teacher’s number of transactions and overall review score. Not only does it violate our core value of transparency, but it is considered to be a deceptive business practice by the US Federal Trade Commission. Reviews must reflect the honest, unbiased opinions, findings, beliefs, or experience of the Buyer.
BILLING AND PAYMENT
"Service Fees" means the amounts that are due and payable by a Buyer in exchange for Services from a Teacher. Service Fees are based on a fixed pricing menu available on the Sites, which is subject to change at any time by ByATeacher.
"Admin Fees" means the fee ByATeacher charges for the use of the Sites and related services, which is calculated as a percentage of the applicable Service Fees. The Admin Fees will be displayed on the Sites.
“Equipment Expenses” means any out of pocket expenses agreed to by a Buyer and submitted by a Teacher in connection with providing a Service.
"Total Fees" means collectively the Service Fees, Equipment Fees and any applicable taxes.
Bookings and Financial Terms for Teachers and Buyers:
Users of the Sites communicate and contract directly with one another for Services. ByATeacher will not be a party to any agreement between Users for Services. Users will be required to provide their credit card and bank account details to ByATeacher and/or the Payment Service Provider (“PSP”) retained by ByATeacher to process payments for the Sites. ByATeacher’s current PSP is Stripe. ByATeacher is not a party to any terms of service set by Stripe or any other PSP, and has no obligations or liability to any User or any other party under such terms.
Payment processing services for sellers on ByATeacher are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreement”). By agreeing to these Terms or continuing to operate as a seller on ByATeacher, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ByATeacher enabling payment processing services through Stripe, you agree to provide ByATeacher accurate and complete information about you and your business, and you authorize ByATeacher to share it and transaction information related to your use of the payment processing services provided by Stripe.
ByATeacher does not currently have a required response time for booking requests. However, if you are a Teacher and a booking is requested for your Services via the Sites, you are expected to either confirm or reject the booking request within 48 hours (the “Expected Booking Request Period”), Scheduling and confirming bookings is entirely the Teacher’s responsibility via the messaging feature of the Sites. ByATeacher reserves the right to monitor a Teacher’s responsiveness. Evidence of repeated slow response time is grounds for ByATeacher to suspend or terminate your account on the Sites.
Teachers will be responsible for preparing and submitting an invoice to ByATeacher for each Service they perform for a Buyer within 24 hours following completion of such Service (each, an “Invoice”). Each Invoice will include: (1) the Service Fees for the Service provided, (2) any Equipment Expenses agreed upon by the Buyer and Teacher in connection with the Service, and (3) the Admin Fee that ByATeacher assesses for providing the Sites, which is based on the Service Fees. Following receipt of an Invoice from a Teacher, ByATeacher will deliver a copy of the Invoice to Buyer via the Sites or email. Buyer shall be responsible for paying the Invoice through the Sites within 5 days of receipt of the Invoice. All Service Fees and Equipment Expenses must be paid through the Sites. Please note that the Invoice format contained on the Sites does not separate the Service Fees from the Admin Fees. Instead, the total hourly rate listed on the Invoice for a Service incorporates both the Service Fees and Admin Fee. Upon payment of an Invoice by a Buyer, the PSP will separate out the Service Fees and Admin Fees from the total payment amount. The PSP will deposit the Service Fees and any Equipment Expenses with the Teacher, and will deposit the Admin Fees with ByATeacher. Users of the Sites will be liable for any taxes required to be paid on the Services provided through the Sites (other than any taxes on ByATeacher’s income). ByATeacher reserves the right, in its sole discretion (but not obligation), to place on hold any Service Fees and Equipment Expenses or refund, provide credits or arrange for the PSP to do so.
Each Teacher agrees that payment made by a Buyer through either ByATeacher or its PSP shall be considered the same as payment made directly to the Teacher. Each Teacher agrees that ByATeacher may permit a Buyer to cancel a booking. Buyers may be charged a cancellation fee through the PSP if they book a Service but cancel it before it is completed, based on cancellation policies set by ByATeacher. Each Teacher understands that either ByATeacher or its PSP will accept payments from Buyers as the Teacher's limited payment collection agent, and that such collection agent’s obligation to pay the Teacher is subject to and conditional upon successful receipt of the associated payments from Buyers. ByATeacher does not guarantee payments to Teachers for amounts that have not been successfully received by either ByATeacher or its PSP from Buyers. ByATeacher assumes no liability for any acts or omissions of the Teacher.
You as a Teacher acknowledge and agree that ByATeacher reserves the right, in its sole discretion, to charge you for and collect Admin Fees from you for the creation of Listings. Please note that ByATeacher will provide notice of any Admin Fee collection via the Sites.
The Teachers, not ByATeacher, are solely responsible for honoring any confirmed bookings and providing any Services booked through the Sites. If you, as a Buyer, choose to enter into a transaction with a Teacher for the booking of Services, you agree and understand that you will be required to enter into an agreement with the Teacher and you agree to accept any terms, conditions, rules and restrictions associated with such Services imposed by the Teacher. You acknowledge and agree that you, and not ByATeacher, will be responsible for performing the obligations of any such agreements, that ByATeacher is not a party to such agreements, and that, with the exception of its payment obligations hereunder, ByATeacher disclaims all liability arising from or related to any such agreements. You acknowledge and agree that, notwithstanding the fact that ByATeacher is not a party to the agreement between you and the Teacher, either ByATeacher or its PSP shall act as the Teacher's payment collection agent for the limited purpose of accepting payments from you on behalf of the Teacher. Upon your payment of the Total Fees to either ByATeacher or PSP through the Sites, your payment obligation to the Teacher for the Services is extinguished, and the PSP is responsible for remitting the Total Fees (less the Admin Fees and any taxes in respect of the Service Fees), in the manner described in these Terms.
Buyers and Teachers are encouraged to discuss the estimated number of hours involved in providing a particular Service, so that both the Buyer and the Teacher agree on the range of effort and expense anticipated. Buyer is responsible to pay for the total hours actually spent by Teacher in performing Services for a confirmed booking, regardless of whether they are more or less than the estimated number of hours discussed. Buyers are responsible for communicating with Teachers their time expectations for Services, including whether a specific number of hours should not be exceeded. In the event a Buyer communicates to a Teacher that a specific number of hours should not be exceeded, then the Teacher is expected to stop work when that number of hours is reached, regardless of whether the Services are fully complete at that time. Teachers are further expected to communicate with Buyers on an ongoing basis during the performance of Services, including notifying Buyers in advance and seeking consent to significantly exceed any previously agreed-upon time estimation. As noted above, the Teacher is encouraged to either confirm or reject the booking request within the Expected Booking Request Period. If a Teacher has not responded to a booking request within the Expected Booking Request Period, or is otherwise unresponsive to messages seeking additional information, ByATeacher encourages the Buyer to contact a different Teacher and notify ByATeacher via email@example.com. If a requested booking is cancelled (i.e. not confirmed by the applicable Teacher), any amounts collected by ByATeacher will be refunded to such Buyer, depending on the selections the Buyer makes via the Sites, and any pre-authorization of such Buyer's credit card will be released, if applicable.
You as a Buyer agree to pay ByATeacher or its PSP for the Total Fees for any booking requested in connection with your ByATeacher account if such requested bookings are completed by the applicable Teacher. In order to establish a booking pending the applicable Teacher's confirmation of your requested booking, you understand and agree that ByATeacher or its PSP, on behalf of the Teacher, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card for the Total Fees or (ii) charge your credit card a nominal amount, not to exceed one dollar ($1), or a similar sum, to verify your credit card. As a general rule, ByATeacher or its PSP will not charge a Buyer’s credit card in advance, but will only collect the Total Fees due once ByATeacher receives a final Invoice and confirmation that the Services have been completed from the applicable Teacher. Please note that ByATeacher cannot control any fees that may be charged to a Buyer by his or her bank related to ByATeacher's or its PSP’s collection of the Total Fees, and ByATeacher disclaims all liability in this regard.
In connection with your requested booking, you will be asked to provide customary billing information such as name, billing address and credit card information either to ByATeacher or its PSP. You as a Buyer agree to pay ByATeacher or its PSP for any Services provided to you by a Teacher in connection with your ByATeacher account in accordance with these Terms. You as a Teacher agree that ByATeacher or its PSP may withhold the Admin Fees in accordance with these Terms. You as a Teacher authorize ByATeacher to withhold funds from your account or otherwise seek payment from you in the event you cause any damage to a Buyer or a Buyer’s property as a result of your actions or inactions, as contemplated under “Damage to Users”. You as a Buyer authorize ByATeacher to charge your credit card or otherwise seek payment from you in the event you cause any damage to a Teacher or a Teacher’s property as a result of your actions or inactions, as contemplated under “Damage to Users”.
Cancellations and Refunds:
Our ability to refund the Service Fees and other amounts charged to you will depend upon the unique circumstances surrounding each individual case, as assessed and ultimately determined by ByATeacher. ByATeacher reserves the right to determine when and how a refund will be applied, in its sole discretion.
If, as a Teacher, you cancel a confirmed booking, you agree that ByATeacher may apply penalties or consequences to you or your Listing, including (i) publishing an automated review on your Listing indicating that a reservation was cancelled, (ii) keeping the calendar for your Listing unavailable or blocked for the dates of the cancelled booking, or (iii) imposing a cancellation fee (to be withheld from your future payouts or charged to the bank account on file in your ByATeacher account). You will be notified prior to any such cancellation fee being charged.
In certain circumstances, ByATeacher may decide, in its sole discretion, that it is necessary or desirable to cancel a confirmed booking made via the Sites. ByATeacher may also determine, in its sole discretion, to refund to the Buyer part or all of the amounts charged to the Buyer. You agree that ByATeacher and the relevant Buyer or Teacher will not have any liability for such cancellations or refunds.
If, as a Teacher, your Buyer cancels a confirmed booking or ByATeacher decides that it is necessary to cancel a confirmed booking, and ByATeacher issues a refund to the Buyer in accordance with applicable cancellation policies, you agree that in the event you have already been paid, ByATeacher shall be entitled to recover the amount of any such Buyer refund from you, including by subtracting such refund amount out from any future Service Fees due to you.
Taxes, Worker Classification and Withholdings:
You as a Teacher understand and agree that you are solely responsible for determining (i) your applicable tax reporting requirements, and (ii) the taxes that should be included, and for including taxes to be collected or obligations relating to applicable taxes in Listings. You are also solely responsible for remitting to the relevant authority any taxes included or received by you. ByATeacher cannot and does not offer tax-related advice to any Users.
Each User assumes all liability for proper classification of such User’s workers as independent contractors or employees based on applicable legal guidelines. Users do not have authority to enter into written or oral — whether implied or express — contracts on behalf of ByATeacher. Each User acknowledges that ByATeacher does not, in any way, supervise, direct, or control a Teacher’s work or Services performed in any manner. ByATeacher does not set a Teacher’s work hours or location of work. ByATeacher will not provide any equipment, labor or materials needed for a particular Service – all of which will be handled through agreement of the Teacher and Buyer regarding Equipment Expenses or another similar arrangement.
The Sites are not an employment service and ByATeacher does not serve as an employer of any User. As such, ByATeacher will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your use of a Teacher’s Services.
You agree to indemnify, hold harmless and defend ByATeacher from any and all claims that a Teacher was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Teacher was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that ByATeacher was an employer or joint employer of a Teacher, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.
Company may from time to time provide certain promotional opportunities, sweepstakes, lotteries, and contests to Users. All such promotions will be run at the sole discretion of Company, and can be activated, modified or removed at any time by Company without advance notification and the liability of any of Company’s partners pursuant to such promotional opportunities, sweepstakes, lotteries and contests shall be limited pursuant to the “Limitation of Liability” section of these Terms set forth below.
Damage to Users:
You acknowledge and agree that, as a Teacher, you are responsible for your own acts and omissions with respect to Buyers and Buyers’ premises and property, and are also responsible for the acts and omissions of any individuals whom you invite to, or otherwise provide access to, a Buyer or any premises or property owned or controlled by a Buyer. In the event that a Buyer claims damage and provides evidence of such damage, including but not limited to photographs, you as a Teacher agree to pay the cost of repairing such damage. After being notified of the claim and given forty eight (48) hours to respond, ByATeacher reserves a right to collect payment from you and pursue any avenues available to ByATeacher in this regard, in situations in which you have been determined, in ByATeacher' sole discretion, to have damaged any Buyer or Buyer property or premises. If we are unable to collect payment from you, you agree to remit payment for any damage to a buyer to the applicable Buyer or to ByATeacher (if applicable).
Both Buyers and Teachers agree to cooperate with and assist ByATeacher in good faith, and to provide ByATeacher with such information and take such actions as may be reasonably requested by ByATeacher, in connection with any complaints or claims made by Users relating to Services or any personal or other property controlled by Users, or with respect to any investigation undertaken by ByATeacher or a representative of ByATeacher regarding use or abuse of the Sites.
If you are a Teacher, you acknowledge and agree that, as a Teacher, you are responsible for your own acts and omissions. ByATeacher strongly encourages Teachers to obtain appropriate general liability insurance for all Services they provide through the Sites. Please review any insurance policy that you may have carefully, and in particular please make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy.
IMPORTANT RULES FOR LISTINGS AND SERVICES
If you are a Teacher posting Listings, you understand and agree that ByATeacher does not act as an insurer or as your contracting agent. If a User requests a booking of your Services, any agreement you enter into with such Buyer is between you and the Buyer and ByATeacher is not a party to it. Notwithstanding the foregoing, ByATeacher serves as the limited authorized payment collection agent of the Teacher for the purpose of accepting, on behalf of the Teacher, payments from Buyers for the provision of Services by Teachers (including any fees and/or taxes).
When you create a Listing, you may also choose to impose certain requirements which must be met by the Users who are eligible to request a booking of your Services, such as requiring Users to have a profile picture and a verified phone number before you will confirm any booking request to provide them Services. If you set any such requirements, you are solely responsible for reviewing, verifying and approving the accuracy and sufficiency of such requirements.
You agree that you alone are responsible for ensuring that your Listing accurately represents your qualifications and skills with respect to any Services offered on your Listing. You alone are responsible for the content on your Listing, and you warrant that you will update your Listing to accurately represent your qualifications and skills.
USER CONDUCT AND OTHER IMPORTANT RULES FOR USE OF THE SITES
You agree that when using the Sites, you will not:
1. Delete, hack, or attempt to change or alter any content or notices;
2. Use any device, software, or routine intended to damage, bypass, modify, circumvent or interfere with the proper functioning of the Sites, servers, or networks connected to the Sites, or take any other action that interferes with any other person’s use of the Sites;
3. Use any automatic or manual device or process to harvest or compile information from the Sites for any reason;
4. Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Sites are based;
5. Introduce into the Sites any malicious or intentionally destructive software routines designed to permit unauthorized access to limit the functionality of computer software or hardware, gain unauthorized access to any other computer system, crack passwords or security encryption codes, or otherwise disable, erase, or harm the Sites or any Site content;
6. Introduce into the Sites any software routine designed to disable a computer program automatically, with the passage of time, or under the positive control of an unauthorized person;
7. Use any content made available through the Sites in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
8. Attempt to access any other person’s information;
9. Post, upload, or transmit photos or video of any third party without express, written permission. By uploading, transmitting, or posting any photo or video on or through the Sites, you represent and warrant that you have express, written permission from all persons appearing in the media for all potential uses by the Sites or ByATeacher of such media;
10. Send any chain letters, junk mail, spam, unauthorized e-mail, or advertisements;
11. Encourage any illegal activities, or post anything that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity;
12. Decrypt, transfer, frame, display, or translate any part of the Sites;
13. Use the information in the Sites to create or sell a similar service or similar information;
14. Post, upload, or transmit any User Content that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, pornographic, profane, indecent, sexually explicit, invasive of another’s privacy, hateful, or intended to offend any person based on a person’s race, ethnic heritage, national origin, sex, sexual orientation or preference, age, physical or mental illness or disability, marital status, employment status, housing status, or religion;
15. Harm minors in any way;
16. Impersonate any person or entity, including, but not limited to, a ByATeacher employee or representative;
17. “Stalk,” harass, or threaten invade the privacy of another User of the Sites; or
18. Collect, store or use personal data about other Users of the Sites.
19. Engage in any Service-related transaction outside the venue of the Sites with another User of the Sites in the event you were first introduced to such User through the Sites.
20. Unless ByATeacher explicitly permits otherwise, offer to provide any Services if you will not actually be providing the Services yourself; or
21. As a Teacher, submit any Listing with false or misleading information, or submit any Listing with Services that you do not intend to honor, or contact any Buyer about making an arrangement for Services outside the venue of the Sites.
Communications with Other Users:
You can use the Sites to communicate directly with other Users. Conversations are a great way for Buyers to ask questions to Teachers about a particular Service. Conversations may not be used for the following activities:
1. Sending unsolicited advertising or promotions, requests for donations, or spam;
2. Harassing or abusing another User;
3. Contacting someone after they have explicitly asked you not to;
4. Interfering with a transaction or the business of another User; or
5. Attempting to arrange business transactions with other Users that take place outside the venue of the Sites.
Interference occurs when a User intentionally interferes with another User’s Listing in order to drive away their business. Interference is strictly prohibited on the Sites. Examples of interference include:
1. Contacting another User to to warn them away from a particular User, Listing or Service;
2. Posting in public areas to demonstrate or discuss a dispute with another User; or
3. Purchasing Services from a Teacher for the sole purpose of leaving a negative review.
Any use of the Sites to harass other Users is strictly prohibited. Similarly, the Sites may not be used to support or glorify hatred toward, or otherwise demean people based upon: race, ethnicity, religion, gender, gender identity, disability, or sexual orientation.
You may receive a User’s email address or other information as a result of entering into a transaction with that User. This information may only be used for ByATeacher-related communications or for ByATacher-facilitated transactions. You may not use this information for unsolicited commercial messages or unauthorized transactions. Without the User’s explicit consent, you may not add any User to your email or physical mailing list or store or misuse any payment information.
Deactivation of Your Account:
We may modify, suspend, or close your account or otherwise stop providing the Sites in whole or in part at any time and for any reason. We will not be liable to you or any third party for suspension or termination of the Sites, your Listing or your account. You will not be able to access any information in your account once your access has been suspended or terminated or the Sites themselves have been shut down. You are responsible for making sure Your Content and other information you desire is properly backed up so you have access to it in the event of loss, corruption, or cessation of the sites, your listing, or termination or suspension of your account. WE DO not export Your Content, your Information, or other data during your use of the sites, or provide Your Content, Information, or other data to you when your account is closed.
Accessibility of Sites:
From time to time the Sites may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic update, maintenance procedures or repairs; or (iii) causes beyond the control of ByATeacher. Access to the Sites is provided over various facilities and communications lines beyond ByATeacher’ control.
You are responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical, Internet and other physical requirements necessary for your use of the Sites.
Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Sites on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection sites while accessing or using the Sites, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. You understand that the Sites are provided over the Internet and mobile networks, so the quality and availability of the Sites may be affected by factors outside our control. We do not guarantee that the Sites will be compatible or operate with your Mobile Provider’s service plans, with any particular Mobile Device, or other piece of hardware, software, equipment, or device you install on or use with your Mobile Device. We are not responsible if the Sites are unavailable or if you cannot download or access the content on the Sites, for any compatibility or interoperability issues, or for any communication system failure which may result in the Sites being unavailable.
DISCLAIMER OF WARRANTIES
USE OF THE SITES IS ENTIRELY AT YOUR OWN RISK.
IF YOU CHOOSE TO USE THE SITES, POST ANY LISTINGS OR USER CONTENT, OR PARTICIPATE AS A BUYER OR TEACHER IN ANY SERVICES ARRANGEMENT, YOU DO SO AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT BYATEACHER DOES NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS OR VERIFY ANY LICENSES, QUALIFICATIONS OR OTHER EVIDENCE OF ELIGIBILITY OF ANY USER, INCLUDING, BUT NOT LIMITED TO, TEACHERS AND BUYERS, BUT MAY CONDUCT SUCH CHECKS OR VERIFICATIONS IN ITS SOLE DISCRETION. THE SITES AND SERVICES, INCLUDING ALL CONTENT, ITEMS, LISTINGS, FUNCTIONS, AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITES, ARE PROVIDED ON AN "AS IS" "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. NEITHER BYATEACHER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITES OR USER 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 TERMS, FROM THE USE OF OR INABILITY TO USE THE SITES OR USER CONTENT, FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, OR FROM YOUR LISTING OR BOOKING OF ANY SERVICES VIA THE SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BYATEACHER 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. BYATEACHER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. BYATEACHER MAKES NO WARRANTY THAT THE SITES, ANY SERVICES, OR ANY USER CONTENT (INCLUDING, BUT NOT LIMITED TO, THE LISTINGS), WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BYATEACHER MAKES NO WARRANTY REGARDING THE QUALITY OF ANY LISTINGS, SERVICES, USERS OR USER CONTENT, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SITES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BYATEACHER OR THROUGH THE SITES OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, INCLUDING, BUT NOT LIMITED TO, ANY TEACHERS OR BUYERS. YOU UNDERSTAND THAT BYATEACHER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITES OR TO REVIEW ANY SERVICES. BYATEACHER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITES, OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITES, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY BYATEACHER. NOTWITHSTANDING BYATEACHER’S OR ITS PSP’S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF TEACHERS FOR THE PURPOSE OF ACCEPTING PAYMENTS FROM BUYERS ON BEHALF OF TEACHERS, BYATEACHER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY TEACHER OR OTHER THIRD PARTY.
LIMITATIONS OF LIABILITY
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE TEACHERS PURSUANT TO THESE TERMS, IN NO EVENT WILL BYATEACHER’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LISTING OR BOOKING OF ANY SERVICES VIA THE SITES, OR FROM THE USE OF OR INABILITY TO USE THE SITES, OR USER CONTENT AND IN CONNECTION WITH ANY LAND OR INTERACTIONS WITH ANY OTHER USERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE SITES AS A BUYER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A TEACHER, THE AMOUNTS PAID BY BYATEACHER TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BYATEACHER AND YOU. IF WE ARE FOUND TO BE LIABLE DESPITE THE LIMITATIONS ABOVE, IN NO EVENT SHALL BYATEACHER BE LIABLE FOR ANY DAMAGES RELATING TO THIS AGREEMENT GREATER THAN ONE THOUSAND U.S. DOLLARS ($1000), TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. 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.
RELEASE AND INDEMNIFICATION
You agree to release, defend, indemnify, and hold ByATeacher and its affiliates and subsidiaries, and their 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 (a) your access to or use of the Sites, any Services, or any User Content, or your violation of these Terms; (b) Your Content and Physical Likeness; (c) your (1) interaction with any other User, (2) booking of any Services, or (3) creation of a Listing; and (d) the Services, including but not limited to any injuries, death, losses, or damages (compensatory, direct, incidental, consequential or otherwise), of any kind arising in connection with or as a result of any Services. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
It is ByATeacher’ policy to respect the intellectual property of others and to respond quickly to notices of alleged infringement. ByATeacher will terminate the access of all Users who infringe the intellectual property rights of others. Likewise, any apparent infringement of ByATeacher’s intellectual property rights by any User will result in the immediate termination of that User’s access to the Sites.
If ByATeacher removes or disables access to User Content or Third Party Content according to these Terms, ByATeacher may, in its discretion, provide the Content Contributor with a copy of the notification which prompted removal or disabled access to the User Content or Third Party Content. However, ByATeacher reserves the right to withhold access to and/or not replace the User Content or Third Party Content unless ordered to do so by a court or other tribunal of competent jurisdiction.
REPORTING COPYRIGHT INFRINGEMENT
If you believe someone is using your copyrighted work without your permission on any of the Sites, you may contact our Designated Copyright Agent using the following contact information:
Attn: Copyright Agent
700 Colorado Blvd #255 Denver, CO 80206
We will respond to claims of copyright infringement reported to our Designated Copyright Agent, identified above, in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws. Notices of copyright infringement must include the following required information:
1. Your address, telephone number, and email address;
2. A description of the copyrighted work that you claim has been infringed;
3. A description of where the alleged infringing material is located;
4. A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
5. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
6. A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
ByATeacher makes no representations whatsoever about any other website that you may access though the Sites. When you access a non-ByATeacher website, please understand that it is independent from ByATeacher, and that ByATeacher has no control over the content on that website. In addition, a link to a non-ByATeacher website does not mean that ByATeacher endorses or accepts any responsibility for the content, or the use, of the linked website. You must ensure that whatever you select for your use or download from that website is free of items such as viruses, worms, trojan horses, and other items of a destructive nature, and that such use or download complies with copyright and other applicable laws.
The e-mail address you provide during the account registration process will be used for all Site-related communications to you. We may also send you messages via your account for the Sites. It is your responsibility to monitor these messages and respond in an appropriate manner. Our Sites may contain links or forms that can be used to contact us so you can comment, make a complaint, make suggestions, and ask questions. You represent and warrant that any information you enter into the Sites is correct and applies only to you and that you will keep your e-mail address and other information about you in your account up-to-date.
You can contact us through your account or by e-mail. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or by our posting notices to your account. You agree that you are able to print the communications for your records. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may choose to get legal notices in paper form through the mail if you tell us you do not want legal notices sent electronically. If you choose to request a paper form, legal notices will be sent to you in paper form by postal mail or as otherwise permitted or required by law. All other communications not required by law to be in paper form will be sent electronically. To tell us you do not want legal notices sent electronically, and for any other notices under this Agreement, send the notice to: firstname.lastname@example.org.
CHOICE OF LAW AND VENUE
THIS SECTION AFFECTS YOUR RIGHTS, PLEASE READ CAREFULLY BEFORE AGREEING TO THESE TERMS BY USING OUR SITES.
These Terms are entered into in the State of Colorado, U.S.A., and are governed by the laws of the State of Colorado, U.S.A., exclusive of its choice of law rules. YOU AND WE EACH AGREE TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE COUNTY OF DENVER IN THE STATE OF COLORADO, U.S.A., FOR ALL DISPUTES RELATING TO THESE TERMS. EACH PARTY WAIVES ANY JURISDICTIONAL, VENUE, OR INCONVENIENT FORUM OBJECTIONS TO SUCH COURTS. In any action to enforce these Terms, the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the Terms are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.