Experfy User Agreement
Last Update Last Update August 1, 2017 , effective August 2, 2017
This Experfy Consulting User Agreement (the “Agreement” or the “Terms”) is a contract between you (the “User”) and Experfy Inc., a Delaware corporation with its principal place of business at Harvard Innovation Launch Lab, 114 Western Avenue, Boston, MA 02134 (“Experfy”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.experfy.com (the “Site”) and related software and services.
Experfy reserves the right to revise this Agreement in its sole discretion at any time by posting the changes on the Site. Changes become effective thirty (30) days after posting. Your continued use of the Site or our services after change become effective shall mean that you accept those changes. You should visit the Site regularly to ensure You are aware of the latest version of the Terms. Notwithstanding the preceding sentences of this section, no revisions to these Terms will apply to any dispute between you and the Company that arose prior to the date of such revision.
This Agreement includes and hereby incorporates by reference the agreements and policies referred to herein, as such agreements and policies may be modified by Experfy from time to time in its sole discretion. In the event of a conflict between such policies and agreements and this Agreement, this Agreement controls. Capitalized terms are defined throughout the Agreement and in Section 12.
You understand that by clicking the “Sign-up” button, or by using the Experfy Consulting Platform, you are agreeing to be bound by this Agreement. If you do not accept this Agreement in its entirety, you may not access or use the Experfy Consulting Platform. If you agree to this agreement on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this Agreement. In that event, “you” and “your” will refer and apply to that entity.
1. The Experfy Consulting Platform
1.1 Purpose of the Experfy Consulting Platform.
The Experfy Consulting Platform allows Clients and Providers to identify each other and enable them to buy and sell Services online. Under this Agreement, Experfy provides services to both Clients and Providers, including curating Clients and Providers, facilitating the formation of contracts between Clients and Providers, and managing disputes related to those contracts. Clients post jobs and invite Providers to apply. Providers create profiles within the closed platform and bid on jobs. If a Client and Provider agree on terms, a Service Contract is formed directly between such Client and Provider subject to the provisions set forth in Section 3 (Service Contract Terms Between Client and Provider). Experfy pays Providers in connection with their delivery of services through the Experfy platform. Experfy collects payment from Clients in connection with their receipt of services through the Experfy platform.
1.2 Eligibility.
The Experfy Consulting Platform is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. User agrees that User is not (a) a citizen or resident of a country in which use or participation is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
2. The Experfy General User Policies
2.1 Experfy Fees.
Experfy charges Providers a fee for the services of connecting them with the Clients that hire them and collecting payment for work. This fee is equal to 20% of Client’s payments. If Provider elects disbursement in foreign currency, Experfy adds a conversion fee of 1.5% to the spot rate quoted by its foreign exchange vendor.
2.2 General User Obligations.
You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You will not engage in any activity that interferes with or disrupts the functioning of the Site. You will not upload or attach an invalid or malicious or unknown file. You will not insert any external links that may be malicious or unknown to you, or used for offering any goods or services other than Services. You agree not to “scrape” or disaggregate data from the Site (whether by manual or automated means), for any commercial, marketing, or data compiling or enhancing purpose, or to copy, re-post or re-use data from the Site for any other service. You agree not to use or provide software (except for general purpose web browsers and email clients, or software expressly licensed by us) or services that interact or interoperate with the Site, e.g. for downloading, uploading, posting, flagging, emailing, search, or mobile use.
2.3 Identity and Account Security.
Experfy reserves the right to validate User information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm the User’s identity. You authorize Experfy, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. Failure to provide information about you and your business when requested is a violation of this Agreement. The User is solely responsible for ensuring and maintaining the secrecy and security of the User’s Experfy account password. User agrees not to disclose this password to anyone (or, in the case of an Agency (as defined below in Section 3), not to disclose this password to anyone who is not a subcontractor of such Agency), and shall be solely responsible under all circumstances for any use of or action taken through the use of such password on the Experfy Consulting Platform. You must notify Experfy Support immediately if you suspect that your password has been lost or stolen. By using your Experfy User account, you acknowledge and agree the Experfy’s account security procedures are commercially reasonable. Furthermore, the User is solely responsible for also ensuring and maintaining the secrecy and security of his or her LinkedIn account, if it is used to login to the Experfy Consulting Platform.
2.4 Disbursements to Providers
Experfy will automatically disburse funds to Providers according to the payment instructions on file with Experfy no more than one month after funds become payable (or within six months, for amounts less than $100). Funds become payable to Providers working on Hourly Contracts following the expiration of the dispute period associated with each work week. Funds become payable to Providers working on Fixed Price Contracts after Clients accept work submitted by a Provider. Clients retain the ability to change the terms of a Fixed Price Contract, including the amount of money owed on a Fixed Price Contract, until they accept the work. Providers may ask Experfy to expedite payments. Experfy reserves the right to refuse any such request and may assess a processing fee in connection with such a request.
2.5 Disintermediation.
Client shall make all payments relating to, or in any way connected with, a Service Contract (including, without limitation, bonuses) through the Experfy Consulting Platform. Any action that encourages or solicits complete or partial payment outside of the Experfy Consulting Platform is a violation of this Agreement. Should a Client or Provider be found in violation of this section of this Agreement, it will owe Experfy an amount with respect to each Service Contract equal to the greater of a) $25,000; or b) five times the applicable fees had the payments been processed through the Experfy Consulting Platform.
2.6 Buyout.
During the period when Services are rendered and for a period of thirty-six (36) months thereafter, Client shall not, alone or with others, directly or indirectly, solicit for its benefit or the benefit of others the employment or Services of any Provider of the Experfy or cause or induce any such person to terminate his or her engagement with the Experfy or its affiliates. Client may pay Experfy a “Buy-Out” fee that is equivalent of 30% of the resource’s annual salary if it wishes to retain the services of the Experfy Provider during the term of the Service Contract or thirty-six (36) months thereafter.
If Services are rendered outside of Experfy during the term of the Service Contract or within thirty-six (36) months thereafter, payments for such Services will not be subject to the Experfy Fees, provided that the Client pays Experfy a “Buy-Out” amount in accordance with the procedure set forth below:
- Prior to contracting outside of Experfy to receive Services from a User identified through the Experfy system, the Client will notify Experfy in writing of its intent to pay the Buy-Out fee in lieu of the Experfy Fees.
- The Client will provide a good faith estimate of the Provider’s hourly rate multiplied by 2000. For example, if the provider’s annual rate were $100 per hour, then the good faith estimate would be $200,000.
- The Client will pay Experfy thirty percent (30%) of the good faith estimate.
2.7 Non-payment.
If Client fails to pay amounts due under this Agreement, whether by cancelling Client’s credit card, initiating an improper chargeback, or any other means, Client’s Experfy account will be suspended, no additional payments will be processed, and any work-in-progress will be stopped. Without limiting other available remedies, Client must reimburse Experfy for amounts due upon demand, plus any applicable processing fees, charges or penalties, plus interest at the lesser of one and one-half percent (1.5%) per month or the maximum allowed by law, plus attorneys’ fees and other costs of collection as allowed by law. In its discretion, Experfy may setoff amounts due against other amounts received from or held for Client, make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution.
2.8 Hold on funds.
In cases of fraud, abuse or violation of this Agreement, all monies due to the Provider may be held and/or reclaimed, not just those from the Contract(s) under investigation.
For Hourly-Rate Contracts only, Clients may dispute hours by not approving Timesheets. Disputes can only address the hours billed, not the quality of the work performed or deliverables. Experfy will promptly investigate the Timesheets to determine, in its sole discretion, whether an adjustment is appropriate. Experfy’s determination shall be final.
2.9 Dispute Resolution Policy.
For Hourly-Rate Contracts only, it is the Client’s responsibility to review Timesheets of every Service Contract on a weekly basis before approving the billing. Once the hours are accepted by the Client, they can no longer be disputed and can only be refunded by the Provider. Disputes can only address the hours billed, not the quality of the work performed or deliverables. Experfy will promptly investigate the Timesheets to determine, in its sole discretion, whether an adjustment is appropriate. Experfy’s determination shall be final.
2.10 Enforcement of Agreement and Policies.
Experfy has the right, but not the obligation, to suspend or cancel your access to the Experfy Consulting Platform if it believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting Experfy’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the Experfy Consulting Platform to you if (a) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, our Users or for Experfy. Once suspended or terminated, you MAY NOT continue to use the Experfy Consulting Platform under a different account or reregister under a new account. If you attempt to use the Experfy Consulting Platform under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts outstanding. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions. When your User account is canceled, you may no longer have access to any parts of the Experfy Consulting Platform, including data, messages, files and other material you keep on Experfy.
3. Service Contract Terms Between Client and Provider.
3.1 Services.
Provider shall perform Services in a professional and workmanlike manner and shall timely deliver any agreed-upon Work Product.
3.2 Agency.
Work performed on Hourly-Rate Contracts under a Provider’s profile must be performed by the Provider represented. If the Provider wishes to subcontract with third parties to perform Services on behalf of the Provider on Hourly-Rate Contracts, the Provider must do so as a legally recognized entity with the ability to hire and/or contract (an “Agency”). Provider and Agency agree and acknowledge that Agency’s employees or contract personnel are not employees of Experfy or Client. Agency is solely responsible for all wages, costs, unemployment insurance, compensation insurance, and expenses of Agency’s employees or contract personnel and has the sole and exclusive right to supervise and control them. Agency acknowledges and agrees that neither it, nor any of its employees or agents, shall have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits of any kind from Experfy or Client.
3.3 Client Payments and Billing.
Client shall pay the agreed-upon amount for time spent (under Hourly-Rate Contracts) or the approved project (under Fixed-Price Contracts) to Experfy. For Hourly-Rate Contracts, Client is billed for hourly Provider Fees on a weekly basis. For payments under Fixed-Price Contracts, Client is billed immediately. For Timesheets that are not approved or disputed by the Client within one week of their submission by the Provider, Experfy will automatically charge the Client’s payment method on file.
3.4 Termination of a Service Contract.
Under Hourly-Rate Contracts, either party may terminate the Service Contract at any time for any or no reason. However, the Client remains obligated to pay for any time the Provider worked prior to termination.
For Fixed-Price Contracts, the Client may terminate at any time but may not recover any payments already made. The Provider may terminate a Fixed-Price Contract at any time if no payment has been made. If a payment has been made on a Fixed Price Contract, the Provider may terminate only with the Client’s consent or after the payment has been refunded.
3.5 Client Deliverables.
Client grants Provider a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the Client Deliverables as necessary for the performance of the Services. Client reserves all other rights and interest, including, without limitation, all Proprietary Rights, in and to the Client Deliverables. Upon completion or termination of the Service Contract, or upon written request by the Client, Provider shall immediately return all Client Deliverables to the Client and further agrees to purge all copies of Client Deliverables and Work Product contained in or on Provider’s premises, systems, or any other equipment otherwise under Provider’s control. Within ten (10) days of Client’s request, Provider agrees to provide written certification to the Client that all Client Deliverables have been returned or purged.
3.6 Work Product.
Our Site contains links to other websites. If you choose to click on a third party link, you will be directed to that third party’s website. The fact that we link to a website is not an endorsement, authorization or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites. These other websites may place their own cookies or other files on your computer, collect data or solicit personal information from you. Other sites follow different rules regarding the use or disclosure of the personal information you submit to them. We encourage you to read the privacy policies or statements of the other websites you visit.
3.7 Worker classification.
Client assumes all liability for proper classification of Providers as independent contractors or employees based on applicable legal guidelines. This Agreement does not create a partnership or agency relationship between Client and Provider. Provider does not have authority to enter into written or oral – whether implied or express – contracts on behalf of Client. Provider acknowledges that Experfy does not, in any way, supervise, direct, or control Provider’s work or Services performed in any manner. Experfy does not set Provider’s work hours and location of work, nor is Experfy involved in determining if the compensation will be set at an hourly or fixed rate or in setting the particular rate for a service contract. Experfy will not provide Provider with training or any equipment, labor or materials needed for a particular Contract. Experfy will not deduct any amount for withholding, unemployment, Social Security, or other taxes as it would in the case of an employee. Client and Provider will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority, in any nation, with respect to Provider’s performance of Services. For Contracts classified as independent contractor relationships, Client may not require an exclusive relationship between Client and Provider. A Provider classified as independent contractor is free at all times to provide Services to persons or businesses other than Client, including any competitor of Client. For Contracts classified as employer-employee relationships, Client will manage the Service Contract through the payrolling program made available on the Experfy Consulting Platform by a third-party payroll provider, where the Provider becomes an hourly employee of such third-party payroll provider and Provider and Client enter into appropriate additional agreements. Client and Provider agree to indemnify, hold harmless and defend Experfy from any and all claims arising out of or related to their Service Contract, including but not limited to claims that Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that Provider was misclassified (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Experfy was an employer or joint employer of Provider, 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.
3.8 Audit Rights
Client and Provider each shall (i) create and maintain records to document satisfaction of its obligations under this Agreement and any Service Contract, including without limitation its payment obligations and compliance with tax laws, and (ii) provide copies of such records to Experfy upon request. Experfy, or Experfy’s advisors or agents, shall have the right, but not the obligation, to routinely, but no more frequently than annually, audit Provider’s operations and records to confirm compliance. Nothing in this provision should be construed as providing Experfy with the right or obligation to supervise or monitor the actual Services performed by Provider.
3.9 Third Party Beneficiary
Experfy is hereby named as a third party beneficiary of each Service Contract.
3.10 General.
Service Contracts shall be governed by Sections 6 (Confidential Information), 11 (General), and 12 (Definitions) of this Agreement, as applicable either directly or by way of analogy.
3.11 Entire Agreement.
The terms and conditions set forth in this Section 3 and any additional or different terms expressly agreed by Client and Provider shall constitute the entire agreement and understanding of Client and Provider with respect to each Service Contract and shall cancel and supersede any other prior or contemporaneous discussions, agreements, representations, warranties, and/or other communications between them.
4. Acknowledgments by User of Experfy’s Role.
4.1 Service Contracts.
User expressly acknowledges, agrees and understands that: (i) the Experfy Consulting Platform is merely a venue where Users may act as Clients or Providers; (ii) Experfy is not a party to any Service Contracts between Clients and Providers; (iii) User recognizes, acknowledges and agrees that User is not an employee of Experfy and that Experfy does not, in any way, supervise, direct, or control User’s work or Services; (iv) Experfy shall not have any liability or obligations under or related to Service Contracts or any acts or omissions by Users; (v) Experfy has no control over Providers or over the Services promised or rendered by Providers; and, (vi) Experfy makes no representations as to the reliability, capability, or qualifications of any Provider or the quality, security or legality of any Services, and Experfy disclaims any and all liability relating thereto.
4.2 Proprietary Rights.
Experfy and its licensors reserve all Proprietary Rights in and to the Experfy Consulting Platform. User may not use the Experfy Consulting Platform except as necessary for the purposes of discharging its obligations under this Agreement and any Service Contract entered into pursuant to this Agreement. Experfy reserves the right to withdraw, expand and otherwise change the Experfy Consulting Platform at any time in Experfy’s sole discretion. User shall not be entitled to create any “links” to the Experfy Consulting Platform, or “frame” or “mirror” any content contained on, or accessible through, the Experfy Consulting Platform, on any other server or internet-based device.
4.3 Experfy’s Compensation.
All Experfy Fees are non-refundable, whether or not Service Contracts were satisfactorily completed.
4.4 Experfy as a Limited Agent
From time to time, a User may ask Experfy to provide a physical or manually signed copy of this Agreement, a Service Contract, or an ancillary document (for example, to enable a User to withdraw payments from User’s foreign bank account). User hereby appoints Experfy as its agent for the limited purpose of executing documents that confirm User’s activities on the Experfy Consulting Platform. Experfy will act on User’s behalf and in a clerical capacity, without in any way restricting Experfy’s rights or expanding Experfy’s obligations under this Agreement or any Service Contract. Each User appoints Experfy as its agent to execute an Act of Acceptance or equivalent instrument on the User’s behalf documenting payments made or to be made to Providers or to Experfy, if another User so requests.
5. Invoices and Payment Methods.
5.1 Formal Invoices and Taxes.
Experfy shall have no responsibility for determining the necessity of or for issuing any formal invoices, or for determining, remitting, or withholding any taxes applicable to Provider Fees. Instead, Provider shall be solely responsible for determining whether it is required by applicable law to issue any formal invoices for the Provider Fees and for issuing any invoices so required. Provider shall also be solely responsible for: (a) determining whether Provider or Experfy is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Provider Fees, and remitting any such taxes or charges to the appropriate authorities on behalf of itself or Experfy, as appropriate; and (b) determining whether Experfy is required by applicable law to withhold any amount of the Provider Fees, notifying Experfy of any such requirement and indemnifying Experfy (either by permitting Experfy to offset the relevant amount against a future payment of Provider Fees or by refunding to Experfy the relevant amount, at Experfy’s sole discretion) for any requirement to pay any withholding amount to the appropriate authorities. Experfy shall have the right, but not the obligation, to audit and monitor Provider’s compliance with applicable tax laws as required by this Section 5.1. Further, in the event of an audit of Experfy, Provider agrees to promptly cooperate with Experfy and provide copies of Provider’s tax returns, and other documents as may be reasonably requested for purposes of such audit.
5.2 Payment Methods.
Client hereby authorizes Experfy to run credit card authorizations on all credit cards provided by Client, to store credit card details as Client’s method of payment for Services, and to charge Client’s credit card (or any other form of payment authorized by Experfy or mutually agreed to between Client and Experfy). Experfy may, in its sole discretion, deviate from its typical billing cycle for Hourly-Rate Contracts and charge Client for any and all Timesheets at any time.
5.3 Not an escrow service
Experfy does not operate an Escrow service. Experfy does have, however, a special, non-compulsory feature, which allows controlled payments to be made with respect to a project to a Provider. Depending on the agreement of the Client and Provider, the Client can create an advance payment which will remain pending until: (a) the Client and the Provider agree that the funds should be released to the Provider; (b) until the Client and the Provider have concluded the process of the dispute resolution (as defined in 2.9); (c) until the Client instructs Experfy to pay a Provider that performed a service for the Client; or (d) until the Client acknowledges that the Provider has completed the service fully and satisfactory.
5.4 Payment Guarantee.
Experfy does not guarantee payment to Providers working on Hourly-Rate Contracts unless its timesheet has been approved by the Client and payment has been made, the time represented is captured online using the Experfy Timesheets software, and the work performed and captured pertains directly to the Service Contract billed (the “Payment Guarantee”). Determination of whether these criteria have been met is at the sole discretion of Experfy. The Payment Guarantee will not apply to Providers or Contracts in violation of this Agreement, where Provider does not meet clear specifications of the Service Contract, where the Provider is aware of or complicit in another User’s violation of this Agreement, or where there is any other involvement in fraudulent activities or abuse of this Payment Guarantee.
6. Confidential Information.
6.1 Confidentiality.
To the extent a Client or Provider provides Confidential Information to the other, the recipient shall protect the secrecy of the Confidential Information with the same degree of care as it uses to protect its own confidential information, but in no event with less than due care, and shall not: (i) disclose Confidential Information to anyone except, in the case of Experfy, to any Client or Provider engaged in a Contract; and (ii) use the Confidential Information, except as necessary for the performance of Services for the relevant Service Contract (including, without limitation, the storage or transmission of Confidential Information on or through Experfy Consulting Platform for use by Provider).
6.2 Return.
If and when Confidential Information is no longer needed for the performance of Services for the relevant Contract, or at the Client’s or Provider’s written request (which may be made at any time at Client’s or Provider’s sole discretion), Client or Provider (as the case may be) shall promptly destroy or return all Confidential Information and any copies thereof contained in or on its premises, systems, or any other equipment otherwise under its control. Each of Client or Provider, as applicable, agrees to provide written certification to the party disclosing the Confidential Information of compliance with this Section 6.2 within ten (10) days after the receipt of disclosing party’s written request to certify.
6.3 Publication.
Without limiting Section 6.1 (Confidentiality), Client and Provider shall not publish, or cause to be published, any Confidential Information or Work Product, except as may be necessary for performance of Services for a Contract.
7. Warranty Disclaimer
EXPERFY MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, WORK PRODUCT, EXPERFY CONSULTING PLATFORM OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPERFY DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 (TERMINATION) STATES USER’S SOLE AND EXCLUSIVE REMEDY AGAINST EXPERFY WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
8. Limitation of Liability.
IN NO EVENT WILL EXPERFY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF EXPERFY TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: (A) U.S. $2,500; AND (B) ANY EXPERFY FEES RETAINED BY EXPERFY WITH RESPECT TO CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR PROVIDER DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS SHALL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
9. Indemnification.
9.1 Proprietary Rights.
Each User shall indemnify, defend and hold harmless Experfy and its subsidiaries, affiliates, officers, agents, employees, representatives and agents (each an “Indemnified Party” for purposes of this Section 9) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, judgment, or adjudication that any Work Product, Services or action or omission by such User infringes Proprietary Rights or other rights of any third party.
9.2 Indemnification by Client.
Each Client shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Client’s use of Services, including without limitation claims by or on behalf of any Provider for Worker’s Compensation or unemployment benefits, or (ii) any Service Contract entered into between such Client and a Provider.
9.3 Indemnification by Provider.
Each Provider shall indemnify, defend and hold harmless the Indemnified Parties from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) arising from or relating to (i) such Provider’s provision of Services, or (ii) any Service Contract entered into between such Provider and a Client.
10. Term and Termination.
10.1 Term.
This Agreement remains in effect until terminated in accordance with Section 10.2 below.
10.2 Termination.
Either party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party (or by terminating or suspending User’s account), provided, that any such termination for convenience shall not affect the validity of any Service Contracts that have been executed prior to termination and this Agreement shall continue to apply with respect to such Service Contracts.
10.3 Consequences of Termination.
Termination shall not relieve Client of the requirement to pay for time spent and expenses incurred prior to the effective date of the termination, which fees and expenses, together with any applicable taxes, shall be charged to Client’s credit card or other form of payment pursuant to Section 5.2 (Payment Methods). Subject to Section 2.9 (Dispute Resolution Policy), Experfy shall pay Provider, in accordance with the provisions of Section 5 (Invoices and Payment Methods), for all time recorded in the Time Logs incurred prior to the effective date of the termination.
10.4 Survival.
Sections 4 through 12 of this Agreement shall survive any termination thereof.
11. General.
11.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them.
11.2 Side Agreements.
Section 11.1 notwithstanding, Clients and Providers may enter into any supplemental or other written agreement that they deem appropriate (e.g., confidentiality agreement, work for hire agreement, assignment of rights, etc.). The terms and conditions of this Agreement, however, will govern and supersede any term or condition in a side agreement that purports to expand Experfy’s obligations or restrict Experfy’s rights under this Agreement.
11.3 Compliance.
User shall not violate any laws or third party rights on or related to the Experfy Consulting Platform. Without limiting the generality of the foregoing, User agrees to comply with all applicable import and export control laws and third parties’ Proprietary Rights.
11.4 Notices: Consent to Electronic Notice.
You consent to the use of (a) electronic means to complete this Agreement and to deliver any notices pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the Experfy Consulting Platform. Notices hereunder shall be invalid unless made in writing and given (a) by Experfy via email (in each case to the email address that you provide), (b) a posting on the Experfy Site or (c) by you via email to Experfy’s support team or to such other addresses as Experfy may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
11.5 Modifications.
No modification or amendment to this Agreement shall be binding upon Experfy unless in a written instrument signed by a duly authorized representative of Experfy. For the purposes of this Section 11.5, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles.
11.6 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
11.7 Assignability.
User may not assign this Agreement, or any of its rights or obligations hereunder, without Experfy’s prior written consent in the form of a written instrument signed by a duly authorized representative of Experfy (and, for the purposes of this Section 11.7, a written instrument shall expressly exclude electronic communications such as email and electronic notices but shall include facsimiles). Experfy may freely assign this Agreement without consent of User. Any attempted assignment or transfer in violation of this Section will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
11.8 Severability.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
11.9 Dispute Resolution; Arbitration; Personal Jurisdiction and Venue.
If a dispute arises between you and Experfy or any Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, Experfy and our Affiliates agree that we will resolve any claim or controversy at law or equity that arises between us out of this Agreement.
11.9.1 Law and Forum for Disputes.
For incidents of non-payment concerning amounts $7,000 or less may be filed in a Small Claims Court and the Court must be located in Massachusetts if Experfy is one of the parties in the lawsuit. For all other disputes, including non-payment of amounts greater than $7,000, you agree that this Agreement shall be governed by the Federal Arbitration Act and the internal substantive laws of the Commonwealth of Massachusetts, REGARDLESS OF YOUR COUNTRY OR STATE OF ORIGIN OR WHERE YOU ACCESS THE SITE, and regardless of any principle of law that may provide for the application of the law of another jurisdiction. You agree that any claim or dispute you may have against Experfy or an Affiliate must be resolved by a court located in Middlesex County, Massachusetts, or as described in the “Mandatory Arbitration” subsection below. You hereby submit to the exclusive personal jurisdiction of the courts located within Middlesex County, Massachusetts for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, you and Experfy retain the right to seek injunctive or other equitable relief in any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below including any provisional relief required to prevent irreparable harm.
11.9.2 Informal Dispute Resolution.
Before filing a Claim for arbitration or otherwise seeking relief in a court of law, you agree to first contact Experfy to inform its Customer Support team of your complaint and seek resolution. This notice of dispute must include: your name, pertinent account information, a brief description of your dispute, and contact information so that Experfy may evaluate the dispute and attempt to informally resolve it. Experfy will have 60 days from the date of your original complaint to informally resolve the dispute, which if successful will avoid the need for further action.
11.9.3 Mandatory Arbitration and Class Action/Jury Trial Waiver.
For disputes involving non-payment of $7,000 or more and/or any other type of claim, in the unlikely event that Experfy has not been able to resolve a dispute it has with you within 60 days of your original informal claim, we each agree to resolve any Claim by binding arbitration before an arbitrator from Judicial Mediation and Arbitration Services (“JAMS”) located in Boston, Massachusetts under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com.
11.9.4 Starting the Arbitration.
The party wishing to initiate arbitration must submit a written demand for arbitration. If you initiate a claim, you will submit the demand by certified mail to Experfy, Inc., Harvard Innovation Launch Lab, 114 Western Avenue, Boston, Massachusetts, 02134, USA, Attention: General Counsel. If Experfy initiates a claim, Experfy will serve a demand for arbitration upon the Client or Provider by email to the email address on file with Experfy, and may send a copy by certified mail to that Client or Provider’s last known address (or to another address specified by the Client or Provider in its notice of dispute of its informal claim). You agree to service of process in that manner. Any demand for arbitration by either party shall identify the parties to the dispute, describe the legal and factual basis of the dispute, and specifically state the remedy being sought. The demand must be sent within the time limits that would apply to a party’s claim if it were being resolved in a court and not by arbitration. The sent date will be determined by the date of postmark on the envelope in which the demand is mailed.
The arbitrator shall resolve all disputes regarding the timeliness or sufficiency of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief.
11.9.5 Selecting a Neutral Arbitrator.
Selection by Mutual Agreement of the Parties. The Arbitrator shall be selected by mutual agreement of the parties. Unless the parties agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted.
Selection When Parties Cannot Mutually Agree. If the parties have not agreed upon an arbitrator within 30 days of the service of the arbitration demand, then Experfy will file the initiating party’s demand with JAMS. JAMS shall then appoint an arbitrator who shall act under this Agreement with the same force and effect as if the parties had selected the arbitrator by mutual agreement.
The arbitration will be conducted in Boston, Massachusetts (or the nearest JAMS Office to Boston) unless you and Experfy agree otherwise.
Payment. Payment of the fees shall be governed by the organization that administers the arbitration.
11.9.6 How Arbitration Proceedings Are Conducted.
In arbitration, the parties have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses. Any disputes in this regard shall be resolved by the Arbitrator, provided, however, that to the extent discovery and presentation of witnesses and evidence will be limited or unavailable under applicable law if the dispute were brought in court, such limitations shall also apply in arbitration.
All parties will have the right to be represented by an attorney in any arbitration under this Agreement. However, neither party is required to be represented by an attorney. Each party shall pay the fees for his, her or its own attorneys, and any related expenses, including the expenses of witnesses called by such party, depositions, or any other costs that would otherwise be borne by a party were the claims brought in court, subject to any remedies to which that party may later be entitled to under applicable law.
As noted above, the arbitration proceedings will be conducted under the Optional Expedited Arbitration Procedures then in effect for JAMS except as provided herein. Notwithstanding anything in the JAMS rules, the Arbitrator will not have the authority to determine whether this Agreement or any portion of it is enforceable, revocable, or valid. Additionally, nothing in the JAMS rules should be construed or interpreted to allow for class, collective or representative arbitration. If you are unable to access or print the JAMS rules, you may obtain a print out of the rules by requesting one from Experfy’s support team.
11.9.7 The Arbitration Hearing and Award.
The parties will arbitrate their dispute before the Arbitrator, who will confer with the parties regarding the conduct of the hearing and resolve any disputes the parties have in that regard. The Arbitrator will specify whether the arbitration proceeding will be conducted by telephone, online, in person, or solely based upon written submission. The arbitration will not require a personal appearance of the parties or witnesses unless mutually agreed by the parties. Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party, and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, including an award of attorneys’ fees, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented and decided by the Arbitrator. No remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this agreement. Within 30 days after the submission of the briefs or as soon as possible thereafter, the Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the content or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. Further, in the event the Arbitrator makes an award in your favor that is greater than Experfy’s last written offer, Experfy will pay you the greater of the award.
11.9.8 Class Action and Jury Trial Waiver.
All claims must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this Agreement, you and Experfy are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
11.9.9 Right to Opt-Out of Arbitration and Class Action / Jury Trial Waiver.
Action is required to protect your legal right to sue Experfy in court or to participate in any way in a class action, collective action, private attorney general action or other representative proceeding. You may opt out of the foregoing arbitration and class action / jury trial waiver provision of this Agreement by notifying Experfy in writing within 30 days of the effective date of this agreement or your first visit to the site, whichever is later. Such written notification must be sent to Experfy, 184 Green Street, Suite 1, Cambridge, Massachusetts 02139, USA, Attention: General Counsel and must include: (1) your individual and/or your company profile URL(s) on the Experfy Consulting Platform, (2) your name, (3) address, (4) telephone number, (5) email address, and (6) a clear statement indicating that you do not wish to resolve disputes through arbitration and demonstrating compliance with the 30-day time limit to opt-out of the above arbitration and class action/jury trial waiver provisions.
11.9.10 Severability.
If any clause within this section (11.10) is found to be illegal or unenforceable, that clause will be severed from this section and the remainder of the section will be given full force and effect, except that in the event of unenforceability of the Class Action/Jury Trial Waiver, the entire arbitration agreement shall be shall be unenforceable.
11.9.11 Improperly Filed Claims.
If the Arbitrator determines that a Claim under these provisions was filed for an improper purpose or was frivolous, the Arbitrator shall award the non-offending party liquidated damages in the full amount attorneys’ fees and costs plus an administrative fee based on the time expended on the case.
11.10 Prevailing Language.
The English language version of this Agreement shall be controlling in all respects and shall prevail in case of any inconsistencies with translated versions, if any.
12. Definitions.
12.1
“Agency” means a legally recognized entity with the ability to hire and/or contract.
12.2
“Affiliate” means a wholly-owned subsidiary of Experfy, Inc.
12.3
“Claim” means any controversy, dispute or claim arising out of or relating to this Agreement, including but not limited to a Service Contract.
12.4
“Client” means any User utilizing the Experfy Consulting Platform to request Services to be performed by a Provider. From time to time, Experfy may act as a Client, and the terms and conditions of this Agreement applicable to Clients will apply to Experfy when acting in this way.
12.5
“Client Deliverables” means instructions, requests, intellectual property and any other information or materials that a Provider receives from a Client for a particular Service Contract.
12.6
“Confidential Information” means Client or Provider Deliverables, Work Product, and any other information provided to, or created by, a User for a Service Contract, regardless of whether in tangible, electronic, verbal, graphic, visual or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Provider or Client; (b) subsequent to disclosure hereunder, was lawfully received without restriction on disclosure from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of Confidential Information.
12.7
“Effective Date” means the date of acceptance of this Agreement.
12.8
“Fixed-Price” means a fixed fee agreed between a Client and a Provider, prior to the commencement of a Contract, for the completion of all Services requested by Client for such Contract.
12.9
“Fixed-Price Contract” means a Service Contract for which Client is charged a Fixed-Price.
12.10
“Provider” means any company or individual User utilizing the Experfy Consulting Platform to offer Services to Clients.
12.11
“Provider Deliverables” means instructions, requests, intellectual property and any other information or materials that a Client receives from a Provider for a particular Service Contract.
12.12
“Provider Fees” means: (a) for an Hourly-Rate Contract, an amount equal to the number of hours recorded by Provider in Timesheets, multiplied by the Hourly Rate; (b) for a Fixed-Price Contract, the Fixed-Price; and (c) any bonuses paid or other payments made by a Client for a Service Contract.
12.13
“Hourly Rate” for a Service Contract means, in respect of a Provider, the hourly rate specified for that Provider in the Experfy Consulting Platform.
12.14
“Hourly-Rate Contract” means a Service Contract for which Client is charged based on the Hourly Rate.
12.15
“Indemnified Party” means Experfy and its subsidiaries, affiliates, officers, agents, employees, representatives and agents.
12.16
“Moral Rights” means any rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights.”
12.17
“Experfy Consulting Platform” means the online platform operated by Experfy, including related software and services, that allows Clients and Providers to identify each other and enable them to buy and sell Services online.
12.18
“Payment Guarantee” means the guaranteed payment to Providers once the Provider’s Timesheets have been approved by the Client and payment has been made to Experfy. The time represented is captured online using the Experfy Timesheets software, and the work performed and captured pertains directly to the Service Contract billed.
12.19
“Payment Period” shall mean the one-week period beginning on Monday at 12:00 AM UTC.
12.20
“Pre-Existing IP” means pre-existing software, technology or other intellectual property, whether such pre-existing intellectual property is owned by Provider or a third party including, without limitation, code written by proprietary software companies or developers in the open source community.
12.21
“Proprietary Rights” means any and all rights, title, ownership and interest in and to copyrights, mask works, industrial designs, trademarks, service marks, trade names, trade secrets, patents, and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected.
12.22
“Service Contract” means a particular project or set of ongoing tasks for which a Client has requested Services to be performed by a Provider and the Provider has agreed on the Experfy Consulting Platform.
12.23
“Services” means web development, software development, writing, translation, administrative, marketing, design customer service, sales, data entry, general business services or any other human services.
12.24
“The Site” means our website located at www.experfy.com.
12.25
“Timesheets” refers to Experfy’s online Timesheets software in compliance when with Experfy’s then-current Policies, for the Services performed in respect of a Contract.
12.26
“User” means (1) a person who is a using the Site on his or her own behalf, or (2) a person who is using the Site on behalf of a company or organization.
12.27
“Work Product” means any tangible or intangible results or deliverables that Provider agrees to create for, or actually delivers to, Client as a result of performing the Services on a particular Service Contract, including, but not limited to, configurations, computer programs or other information, or customized hardware, and any intellectual property developed in connection therewith.
Training Terms of Use
Last Update Last Update October 13, 2016 , effective August 1, 2016
1. Introduction.
THIS AGREEMENT BINDS YOU OR THE COMPANY YOU REPRESENT (“YOU,” OR “YOUR”) TO THE TERMS AND CONDITIONS SET FORTH HEREIN IN CONNECTION WITH YOUR USE OF EXPERFY, INC.’S (“OUR”, “WE”, “COMPANY” OR “EXPERFY”) SOFTWARE, MOBILE APPLICATIONS, SERVICES OR OTHER OFFERINGS ON OUR SITE (COLLECTIVELY, OUR “PRODUCTS”). BY USING ANY OF THE COMPANY PRODUCTS OR CLICKING ON THE “SIGNUP” BUTTON, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND DO NOT USE THE COMPANY PRODUCTS. COMPANY’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY COMPANY, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
2. Additional Terms.
Any personal information submitted in connection with Your use of the Products or the Site is subject to Our Privacy Policy, located at www.experfy.com/privacy-policy which is hereby incorporated by reference into these Terms.
If you are an Instructor (as defined below), you are also subject to the Instructor terms and conditions located a www.experfy.com/terms/instructor/ (the “Instructor Terms”), which are hereby incorporated by reference into these Terms. If you are an Instructor and there is a conflict between these Terms and the Instructor Terms, the Instructor Terms will govern.
3. General.
The Products enable students (“Students”) to connect with independent contractor instructors (the “Instructors”) who provide live and recorded instruction, tutoring, and learning services in Our proprietary online classrooms (the “Courses”). Students and Instructors are, collectively, “Users.” The Products include, without limitation, facilitating and hosting Courses and supporting materials, and taking feedback from Users.
The Company may modify the Products or discontinue their availability at any time.
You are solely responsible for all service, telephony, data charges and/or other fees and costs associated with Your access to and use of the Products, as Well as for obtaining and maintaining all telephone, computer hardware, and other equipment required for such access and use.
If You elect to access or use Products that involve payment of a fee, then You agree to pay, and will be responsible for payment of, that fee and all taxes associated with such access or use. If You provide credit card information to pay for such fees then You hereby represent and warrant that You are authorized to supply such information and hereby authorize the Company to charge Your credit card on a regular basis to pay the fees as they are due.
If Your payment method fails or Your account is past due, then We may collect fees owed using other collection mechanisms. This may include charging other payment methods on file with us and/or retaining collection agencies and legal counsel. We may also block Your access to any Products pending resolution of any amounts due by You to Company.
All of Your use, access and other activities relating to the Site and the Products must be in compliance with all applicable laws and regulations, including, without limitations, laws relating to copyright and other intellectual property use, and to privacy and personal identity. In connection with Your use of the Products and Site, You must not provide incorrect or knowingly false information; copy, distribute, modify, reverse engineer, deface, tarnish, mutilate, hack, or interfere with the Products or operation of the Site; frame or embed the Site or Products; impersonate another person or gain unauthorized access to another person’s Account; introduce any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Products or operation of the Site; scrape, spider, use a robot or other automated means of any kind to access the Products.
4. General Disclaimer.
The Site is only a marketplace for Instructors and Students. We do not hire or employ Instructors nor are We responsible or liable for any interactions involved between the Instructors and their respective clients. We are not responsible for disputes, claims, losses, injuries, or damage of any kind that might arise out of or relate to conduct of Instructors or Students, including, but not limited to, any Student’s reliance upon any information provided by an Instructor.
We do not control Submitted Content (as defined below) posted on the Site and, as such, do not guarantee in any manner the reliability, validity, accuracy or truthfulness of such Submitted Content. You also understand that by using the Products may expose You to Submitted Content that You consider offensive, indecent, or objectionable. The Company has no responsibility to keep such content from You and no liability for Your access or use of any Submitted Content, to the extent permissible under applicable law.
The Site and Products may give You access to links to third-party Websites (“Third Party Sites”), either directly or through Courses or Instructors. The Company does not endorse any of these Third Party Sites and does not control them in any manner. Accordingly, the Company does not assume any liability associated with Third Party Sites. You need to take appropriate steps to determine whether accessing a Third Party Site is appropriate, and to protect Your personal information and privacy on such Third Party Site.
5. Conduct.
You may only access the Products for lawful purposes. You are solely responsible for the knowledge of and adherence to any and all laws, rules, and regulations pertaining to Your use of the Products. You agree not to use the Products or the Company Content (as defined below) to recruit, solicit, or contact in any form Instructors or potential users for employment or contracting for a business not affiliated with us without Our advance written permission, which may be withheld in Our sole discretion. You assume any and all risks from any meetings or contact between You and any Instructors or other Users of the Products.
6. Specific Obligations of Instructors.
If You are instructing Students in connection with a Course You are an “Instructor” and the following additional terms and conditions apply, and You represent, warrant and covenant that:
- You are subject to the Company’s approval, which We may grant or deny in Our sole discretion;
- You need to visit www.experfy.com and complete the Instructor enrollment form and if You will charge fees for
- Your Courses You will also need to agree to the Instructor terms;
- You will be responsible for all of Your Submitted Content, that You own or have the necessary licenses, rights, consents, and permissions, and have the authority to authorize Company, to reproduce, distribute, publicly perform (including by means of a digital audio transmission), publicly display, communicate to the public, promote, market and otherwise use and exploit any of Your Submitted Content on and through the Products in the manner contemplated by these this Instructor Agreement, and that no Submitted Content shall infringe or misappropriate any intellectual property right of a third party;
- You have the required qualifications, credentials and expertise, including without limitation, education, training, knowledge, and skill sets, to teach and offer the services You offer on and through the Site and the Products;
- You will not post any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory or libelous content;
- You will not upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) through the Products or to any User;
- You will not use the Products for any business other than for providing tutoring, teaching and instructional services to Students;
- You will not engage in any activity that will require Company to obtain any licenses from or pay any royalties to any third party, including, by way of example and not limitation, the payment of royalties for the public performance of any musical works or sound recordings;
- You will not copy, modify or distribute Company Content except as permitted in this Instructor Agreement;
- You will not interfere with or otherwise prevent other Instructors from providing their services or Courses;
- You will maintain Your enrollment and account information, and all such enrollment and account information shall be accurate;
- You shall respond promptly to Users seeking Your services and ensure a quality of service commensurate with the standards of Your industry and instruction services in general;
- You are over the age of 18 or, if not, you are between the ages of 13 and 17 and a third party parent or legal guardian has agreed to these Terms and the Instructor Terms and will assume responsibility and liability for Your performance and compliance hereunder.
7. Specific Obligations of Students using the Site.
If You are a User in search of or participating in a Course, You are a Student and the following additional terms and conditions apply, and You represent, warrant and covenant that:
- You have read, understood, and agree to be bound by the pricing information (see the Pricing section below) before using the Site or registering for a Course;
- You are over the age of 18, or, if not, You will only use the Products with the involvement, supervision, and approval or a parent or legal guardian. Children under the age of 13 may not register for an account or register or purchase Courses.
- You will not upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise) through the Site or the Products;
- You will not post any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, infringing, defamatory or libelous content;
- You will not reproduce, distribute, publicly display, publicly perform, communicate to the public, create derivative works from or otherwise use and exploit any Company Content, the Products or Courses or Submitted Content except as permitted by these Terms or the relevant Instructor as applicable;
- You will not disclose any personal information to an Instructor, and otherwise will assume responsibility for controlling how Your personal information is disclosed or used, including, without limitation, taking appropriate steps to protect such information; and
- You will not solicit personal information from any Instructor or other User.
8. Registration.
To use certain Products, You will need to register and obtain an account, username and password. When You register, the information You provide to us during the registration process will help us in offering content, customer service, and network management. You are solely responsible for maintaining the confidentiality of Your account, username, and password (collectively, Your “Account”) and for all activities associated with or occurring under Your Account. You represent and warrant that Your Account information will be accurate at all times. You must notify us (a) immediately of any unauthorized use of Your Account and any other breach of security, and (b) ensure that You exit from Your Account at the end of each use of the Products. To the extent permissible under applicable law, we cannot and will not be responsible for any loss or damage arising from Your failure to comply with the foregoing requirements or as a result of use of Your Account, either with or without Your knowledge, prior to Your notifying us of unauthorized access to Your Account.
You may not transfer Your Account to any other person and You may not use anyone else’s Account at any time without the permission of the account holder. In cases where You have authorized or registered another individual, including a minor, to use Your Account, You are fully responsible for (i) the online conduct of such User; (ii) controlling the User’s access to and use of the Products; and (iii) the consequences of any misuse.
9. Content, Licenses & Permissions.
All software, technology, designs, materials, information, communications, text, graphics, links, electronic art, animations, illustrations, artwork, audio clips, video clips, photos, images, reviews, ideas, and other data or copyrightable materials or content, including the selection and arrangements thereof is “Content.” Where the Company provides Content to You in connection with the Products, including, without limitation, the Software and the Products and the Site, it is “Company Content.” Content uploaded, transmitted or posted to the Site or through the Products by a User is “Submitted Content.” Content remains the proprietary property of the person or entity supplying it (or their affiliated and/or third party providers and suppliers) and is protected, without limitation, pursuant to U.S. and foreign copyright and other intellectual property laws. You hereby represent and warrant that You have all licenses, rights, consents, and permissions necessary to grant the rights set forth in these Terms to Company with respect to Your Submitted Content and that Company shall not need to obtain any licenses, rights, consents, or permissions from, or make any payments to, any third party for any use or exploitation of Your Submitted Content as authorized in these Terms or have any liability to You or any other party as a result of any use or exploitation of Your Submitted Content as authorized in these Terms.
You hereby grant the Company the right and license to reproduce, distribute, publicly perform, offer, market and otherwise use and exploit the Submitted Content on the Site and through the Products, and sublicense it to Instructors and Users for these purposes directly or through third parties.
The Company hereby grants You (as a User) a limited, non-exclusive, non-transferable license to access and use Submitted Content and Company Content, for which You have paid all required fees, solely for Your personal, non-commercial, educational purposes through the Site and the Products, in accordance with these Terms and any conditions or restrictions associated with particular Courses or Products. All other uses are expressly prohibited absent Our express written consent. You may not reproduce, redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, create derivative works of, license, or otherwise transfer or use any Submitted Content or Company Content unless We give You explicit permission to do so. Submitted Content and Company Content is licensed, and not sold, to You. Instructors may not grant You license rights to Submitted Content You access or acquire through the Services and any such direct license shall be null and void and a violation of these Terms.
You agree that We may record all or any part of any Courses (including voice chat communications) for quality control and delivering, marketing, promoting, demonstrating or operating the Site and the Products. You hereby grant the Company permission to use Your name, likeness, image or voice in connection with offering, delivering, marketing, promoting, demonstrating, and selling the Site, Products, Courses, Company Content and Submitted Content and waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection therewith, to the extent permissible under applicable law.
THE COMPANY RESPECTS ALL COPYRIGHT, PRIVACY, DEFAMATION AND OTHER LAWS RELATING TO CONTENT AND INFORMATION AND WILL NOT TOLERATE VIOLATION OF SUCH LAWS. NOTWITHSTANDING THE FOREGOING, THE COMPANY DOES NOT SCREEN THE SUBMITTED CONTENT AND ALL USE OF THE SUBMITTED CONTENT BY YOU IS AT YOUR OWN RISK AND THE COMPANY SHALL HAVE NO LIABILITY FOR SUCH USE. IN PARTICULAR, NO REVIEW OR POSTING OR APPEARANCE OF THE SUBMITTED CONTENT ON THE SITE OR THROUGH THE PRODUCTS IS INTENDED TO ACT AS AN ENDORSEMENT OR REPRESENTATION THAT ANY SUBMITTED CONTENT IS FREE OF VIOLATION OF ANY COPYRIGHT, PRIVACY OR OTHER LAWS OR WILL SUIT A PARTICULAR PURPOSE OR BE ACCURATE OR USEFUL. If You believe that Submitted Content of Yours violates any law or regulation or is inaccurate or poses any risk whatsoever to a third party it is Your responsibility to take such steps You deem necessary to correct the situation. If You believe that Submitted Content of a third party or any Company Content violates any laws or regulations, including, without limitation, any copyright laws, You should report it to the Company.
All rights not expressly granted in these Terms are retained by the Content owners and these Terms do not grant any implied licenses.
Pricing for Paid Courses
Key Definitions
“Base Price” means the course price set by the Instructor.
“Base Currency” means the currency of the Base Price.
“Base Exchange Rate” means a system-wide rate used by the Company for foreign currency conversion and does not include any fee or mark-up by the Company. The rate is established using one or more third parties such as Open Exchange Rates and is fixed periodically (e.g. monthly) to prevent daily price fluctuations. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.
“Sale Price” means the actual sale price for the Course. When the Sale Currency is different from the Base Currency, the Company will determine the Sale Price based on the applicable Base Exchange Rate and Cost Adjustment Factor.
“Sale Currency” means the currency of the sale. This is determined by the country of origin of the User purchasing the Course.
“Cost Adjustment Factor” means applicable local taxes and other fees associated with currency conversions. In regions that use a common currency, e.g., the EU, the Cost Adjustment Factor uses a weighted average of country specific tax rates to ensure the same prices to end customers across the region.
Pricing
Experfy, while taking input from the Instructor, will be solely responsible for determining the Base Price to be charged for a Course, in accordance with the Instructor Terms . In the case of Courses offered on Company’s mobile applications, Company will select the Apple App Store price tier that is closest to the fee set by the Instructor. When the Sale Currency is different than the Base Currency, the Company will determine the Sale Price according to the most recent Base Exchange Rate and applicable Cost Adjustment Factor.
If You are a Student, You agree to pay the fees for Courses that You take, and hereby authorize Us to charge Your credit card for these amounts. We will charge Your credit card monthly for all amounts owed. If Your credit card is declined, You agree to pay Us the fees within thirty (30) days of notification from Us, and pay (at Our discretion) a late payment charge at 1.5% per month, or the maximum permitted by law, whichever is greater.
Taxes
European Union
In the event that the sale or delivery of a Course or any Submitted Content to any Student in the European Union is subject to any value added tax (“VAT”), under applicable law, Experfy will collect and remit the VAT to the competent tax authorities for sales of such Courses or Submitted Content to Students in the European Union. Experfy may at its own discretion increase the Sale Price where Experfy is of the view that VAT may be due and Experfy will have a liability to account for such. You will indemnify and hold Experfy harmless against any and all claims by any tax authority for any underpayment of VAT, and any penalties and/or interest thereon.
All other countries
For sales of any of Courses or Submitted Content in countries other than the European Union, You are responsible for remitting the taxes to the appropriate taxing authority (which may be different to the tax authority in your own location). Experfy is unable to provide you with tax advice and You should consult your own tax advisor.
Rounding Off
Company may, in its sole discretion, round up or round down the Sale Price to the nearest whole functional base unit in which the Sale Currency is denominated (e.g. to the nearest dollar, euro or other supported currency); for example, Company will round up an amount of $101.50 to $102.00, and $101.49 to $101.00.
Some currencies are denominated in large numbers. In those cases, Company may determine the functional base unit in which those currencies are denominated to be 10, 100 or 1,000 of the currency; the corresponding examples for such currencies would be for Company to round up an amount of 1,045 up to 1,050 and 1,044 down to 1,040, or 35,450 up to 35,500 and 35,449 down to 35,400, or 837,500 up to 838,000 and 837,499 down to 837,000.
Foreign Currency
Company’s online platform will default the Sale Currency based on Your geographic location. The currency of any transaction will match the Sale Currency displayed to You on the website. You cannot change Your displayed currency.
Each foreign currency conversion is processed at a foreign currency conversion rate. This rate generally refers to the amount of one currency that must be paid to buy a certain amount of another currency at a given time. For example, if it costs US$125.00 to buy €100.00, the currency conversion rate of US dollars to Euros would be 1.25, and the currency conversion rate from Euros to US dollars would be 0.8. Currency conversion rates will vary from time to time.
Refunds
Refunds may be requested within 7 days of purchase of course. Money back guarantee is void if the participant has accessed more than 25% of the content. If you have any complaints, please contact Experfy Support at [email protected].
10. Trademarks.
The trademarks, service marks, and logos (the “Trademarks”) used and displayed on the Site, in the Products or in any Company Content are Our registered or unregistered Trademarks or of Our suppliers or third parties and are protected pursuant to U.S. and foreign trademark laws. All rights are reserved and You may not alter or obscure the Trademarks, or link to them without Our prior approval.
11. Warranty Disclaimer.
THE PRODUCTS, SITE, COMPANY CONTENT, SUBMITTED CONTENT, COURSES, AND ANY OTHER MATERIALS MADE AVAILABLE ON OR THROUGH THE SITE OR THE PRODUCTS ARE PROVIDED “AS IS,” WITHOUT ANY WARRANTIES OF ANY KIND AND, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY HEREBY DISCLAIMS ALL SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, FREEDOM FROM ERRORS, SUITABILITY OF CONTENT, OR AVAILABILITY.
12. Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE HEREUNDER UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT OR NEGLIGENCE, FOR ANY LOSSES, UNLESS SUCH LOSSES WERE REASONABLY FORESEEABLE AT THE TIME YOU AGREED TO THIS TERMS. THE COMPANY’S TOTAL LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNTS PAID IN CONNECTION WITH THE COURSES OR PRODUCTS UNDER WHICH SUCH LIABILITY AROSE. THIS SECTION 12 DOES NOT EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY FOR FRAUD, FOR DEATH, OR FOR PERSONAL INJURY RSULTING FROM NEGLIGENCE, OR FROM ANY OTHER LIABILTY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
13. Indemnification.
You hereby indemnify, defend and hold harmless the Company, and its affiliates, officers, directors, agents, partners, employees, licensors, representatives and third party providers from and against all reasonably foreseeable losses, expenses, damages, costs, claims and demands, including reasonable attorneys’ fees and related costs and expenses, due to or arising out of Your breach of any representation or warranty hereunder. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You under this Section 13, and in such case, You agree to fully cooperate as reasonably required with such defense and in asserting any available defenses.
14. Termination.
We may terminate Your use of the Products or Site immediately without notice for any breach by You of these Terms or any of Our applicable policies, as posted on the Site from time to time. We may discontinue offering any Product, Course, or Content at any time (which will terminate Your right to offer these Courses if You are an Instructor). You may terminate Your use of the Site or the Products at any time, either by ceasing to access them, or by contacting us at [email protected] (but if You are an Instructor then Students enrolled in Your Courses prior to termination shall continue to have access to them for the duration of the Course). We have no obligation to retain any of Your Account or Submitted Content for any period of time beyond what may be required by applicable law. Upon termination, You must cease all use of the Site, Products and Content. Any accrued rights to payment and Sections 4, 5, 10-15 and all representations and warranties shall survive termination.
15. Electronic Notices.
By using the Products or communicating with Company, You agree that Company may communicate with You electronically regarding security, privacy, and administrative issues relating to Your use of the Products or these Terms. If Company learns of a security system’s breach, Company may attempt to notify You electronically by posting a notice on the Products or sending an email to You. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to Company at [email protected].
16. Miscellaneous.
- Entire Agreement. These Terms and any policies applicable to You posted on the Site constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter.
- Severability. If any provision of these Terms is found to be illegal, void or unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions of these Terms.
- Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Company to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
- Notice. Any notice or other communication to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail.
- No Agency. Nothing in these Terms shall be construed as making either party the partner, joint venture, agent, legal representative, employer, contractor or employee of the other. Neither the Company nor any other party to this Agreement 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.
- These Terms and Your use of the Site and the Products shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles.
Instructor Agreement
Last Update Last Update October 13, 2017 , effective December 22, 2017
Key Definitions
- “Base Price” means the price at which the course is advertised.
- “Base Currency” means the currency of the Base Price.
- “Base Exchange Rate” means a system-wide rate used by the Company for foreign currency conversion and does not include any fee or mark-up by the Company. The rate is established using one or more third parties such as Open Exchange Rates and is fixed periodically (e.g. monthly) to prevent daily price fluctuations. Accordingly, the Base Exchange Rate may not be identical to the applicable market rate in effect at the specific time a foreign currency conversion is processed.
- “Sale Price” means the actual sale price for the Course. When the Sale Currency is different from the Base Currency, the Company will determine the Sale Price based on the applicable Base Exchange Rate and Cost Adjustment Factor.
- “Sale Currency” means the currency of the sale. This is determined by the country of origin of the User purchasing the Course.
- “Cost Adjustment Factor” means applicable local taxes and other fees associated with currency conversions. In regions that use a common currency, e.g., the EU, the Cost Adjustment Factor uses a weighted average of country specific tax rates to ensure the same prices to end customers across the region.
- “Net Amount” means the amount actually received from Students for Your Course, less refunds paid, credit card processing fees, discounts, and applicable sales or other taxes (if any), and any amounts paid in connection with Marketing Programs that You participate in.
License to Experfy
You will jointly develop this course with Experfy and give exclusivity to Experfy for its sale and distribution in perpetuity. You hereby grant Experfy the right and license to reproduce, distribute, publicly perform, offer, market and otherwise use and exploit the Submitted Content through the Experfy platform, and sublicense it to Users for these purposes directly or through third parties.
You hereby grant Experfy permission to use Your name, likeness, image or voice in connection with offering, delivering, marketing, promoting, demonstrating, and selling the Platform offerings and courses.
Pricing
Depending on the market segment, Experfy will be responsible for determining the Base Price charged to Students for Your Courses and the appropriate marketing channels. The Company will handle billing and other fee interaction with Users. When the Sale Currency is different than the Base Currency, Experfy will determine the Sale Price according to the most recent Base Exchange Rate and applicable Cost Adjustment Factor.
Courses Sold Individually
Experfy will pay You fifty percent (50%) of the Net Amount received for Your Course that are sold individually and within a Certification Track that charges a one-time fee. The Net Amount equals the amount actually received from Students for Your Course, less any refunds paid, credit card processing fees, discounts, and applicable sales or other taxes (if any). The Net Amount will typically be based on the Base Price, but Company reserves the right to increase or decrease the Base Price in connection with the Company’s marketing and promotional efforts (including through Marketing Programs).
Courses Sold Within a Subscription Package
When Experfy sells a monthly or an annual subscription package in which your course is included, your share of the revenue will be determined by a formula that takes into account three variables: (1) course price; (2) number of minutes watched, and (3) the percentage of revenue split between You and Experfy.
For, both, courses sold individually or within a subscription package, You authorize the Company to perform the appropriate calculations, and pay You your share of the Net Amount as indicated above.
Courses Sold Through Experfy’s iOS App
In the case of Courses offered on Experfy’s iOS application, Experfy will select the Apple App Store price tier (from the App Store Pricing Matrix available at http://www.equinux.com/us/appdevelopers/pricematrix.html) that is closest to the Base Price of the course.
Instructor Perks and Marketing
As a perk, Experfy may give free access to Courses to select instructors who publish their Courses on the Experfy training platform.
Experfy’s marketing team may choose to showcase a small number of videos from Your Course on YouTube and other sites for free to promote Your Course.
Experfy may also provide free access to a limited number of users who agree to review Your course.
Course Cancellations
Experfy may, at its sole discretion, cease the marketing and distribution of any Course. During such a circumstance, the Instructors will receive the Net Amount from all payments due and any Users who have paid for the Course may continue to have access to all Course materials, unless the Course violates any copyright laws.
Payment to Instructors
Users are entitled to refunds pursuant to Our general Terms of Service and You agree that Company may deduct such refunds from subsequent amounts owed to You. Company will issue remit to You any amounts remaining after the foregoing deductions and adjustments, in US dollars, via Stripe, check, PayPal, or other means deemed appropriate by Experfy. Payment will be made within thirty (30) days of the end of the month in which the fee for a Course was received. You are responsible for providing Company with all identifying and tax information necessary for the payment of amounts due.
