Kesson Group Inc., operating as Skooli ("Skooli", "our", "us" or "we") provides an online platform known as SKOOLI that connects tutors with individuals seeking tutoring services accessible through a portal accessed through the Skooli website www.skooli.com, which may, if provided for in the Institution Order (as hereinafter defined) or any statement of work relating thereto, be customized to meet certain criteria, limitations or requirements of the Institution (the "Site"), and includes the ability for Users and Tutors (each as defined below) to interact via the Skooli platform's interface or other methods as may be made available by Skooli from time to time.
You (the “Institution”) desire to make Tutor Services available to certain of your students, employees, representatives or other individuals as may be designated by you from time to time in accordance with the commercial terms set forth in the covering purchase order and any statement of work relating thereto and to which these Institution Terms of Service and any schedules and/or appendices indicated thereon or referenced herein form an integral part (the “Institution Order”).
These Institution Terms of Service govern the Institution Order and access to and use of the Site by the Institution and its designated students (hereinafter “Users”).
(a) “User Account” means the user profile each User will create by registering on the Site in accordance with Skooli’s User Terms of Service and using the credentials linked to the Master Account.
(b) "Content" means all text, graphics, images, software, audio, video, information or other files or materials.
(c) "Institution Content" means any Content that the Institution submits, provides or transmits to Skooli to be made available through the Site or otherwise in connection with any Institution-specific customizations or other aspects of the Site available to Users as may be contemplated by the Institution Order or any statement of work provided by Skooli in respect of the Institution Order.
(d) “Master Account” means the Institution’s account created by entering into the Institution Order under which each User Account created with the User credentials provided to Skooli by the Institution will operate.
(e) "Skooli Content" means Content that Skooli makes available through the Site, including any Content licensed from a third party, but excludes Institution Content, if any.
(f) “Tutor” means a tutoring or educational services provider accessible to Users via the Site.
(g) “Tutor Services” mean any tutoring or educational services that a tutor may provide to a User during a Tutor Session.
(h) “User” means each student, employee, representative or other individual designated by the Institution as a permitted user under the Master Account who seeks, schedules and/or engages in Tutor Services.
Users will be registered through the Master Account and may access individual accounts established by the Institution by logging into an Account designated by the Institution and using credentials authorized by the Institution (which may include using previously generated user information and/or log in credentials on third party or Institution-operated networks or student information systems (SIS)) and the Institution agrees that it will not permit, enable, introduce or facilitate persons who are not communicated to Skooli as being authorized to create a User Account pursuant to the Master Account to have access to the features of the Site and the Tutor Services.
Tutor Services made available pursuant to these Institution Terms of Service are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law unless such registration is completed by a parent or legal guardian for a minor in respect of such minor’s use of Tutor Services. The Institution represents and warrants that all Users will be at least 18 years old and/or that the consent of the parent and/or legal guardian of any User who is under the age of 18 will be obtained and that all registration information submitted in respect of each User is accurate to the best of the Institution’s knowledge. Skooli may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions.
THE INSTITUTION ACKNOWLEDGES AND AGREES THAT, BY PERMITTING ANY USER TO ACCESS A SKOOLI ACCOUNT PURSUANT TO THE INSTITUTION ORDER, ALL SUCH USERS WILL BE REQUIRED TO AGREE TO BE BOUND BY SKOOLI’S USER TERMS OF SERVICE. IF A USER DOES NOT AGREE TO THE USER TERMS OF SERVICE, THEN HE OR SHE WILL HAVE NO RIGHT TO ACCESS OR USE THE SITE OR THE TUTOR SERVICES AND ANY BREACH OF THE USER TERMS OF SERVICE BY SUCH USER MAY RESULT IN SUCH USER’S ACCOUNT BEING TEMPORARILY OR PERMANENTLY SUSPENDED, DISABLED OR TERMINATED WITHOUT PRIOR NOTICE AND WITHOUT ANY REFUND, RECOURSE OR OTHER REMEDY BEING AVAILABLE TO THE INSTITUTION AS A RESULT.
If these Institution Terms of Service have been accepted or agreed to on behalf of a corporation or other legal entity, you represent and warrant that the accepting party have the authority to bind that corporation or other legal entity to these Institution Terms of Service.
The Institution Order and the provision of Tutor Services to the Users is governed by the terms and conditions set forth herein together with Skooli’s applicable policies and the User Terms of Service. THE SITE COMPRISES AN ONLINE MARKETPLACE WHICH FACILITATES THE CONNECTION BETWEEN USERS AND TUTORS FEATURED ON THE SITE. THE INSTITUTION ACKNOWLEDGES AND AGREES THAT THAT SKOOLI DOES NOT HAVE ANY CONTROL OVER THE SPECIFIC PROVISION OF ANY TUTOR SERVICES OR THE CONDUCT OF TUTORS AND OTHER USERS OF THE SITE, AND DISCLAIMS ALL LIABILITY IN THIS REGARD. ANY MEETINGS (VIRTUAL OR OTHERWISE) BETWEEN USERS, TUTORS OR ANY OTHER THIRD PARTIES AND ANY PURCHASES OF TUTOR SERVICES BY THE INSTITUTION ARE AT THE RELEVANT PARTIES' SOLE RISK.
The Institution acknowledges and agrees that:
(a) that the Site is intended only to facilitate the provision of Tutor Services via our online platform and its video and text chat and document collaboration interface;
(b) Skooli itself is not a provider of tutoring services;
(c) Skooli's role is solely to facilitate the availability of the Site and Tutor Services to Users through the marketplace created by the Site; and
(d) Skooli is not a contracting agent or representative of any Tutor. Tutors are independent contractors and are not employees or agents of Skooli.
Skooli agrees to provide continued support for the Site, including to the extent it is customized for the Institution and its Users as set forth in the Institution Order, in accordance with any service level agreement entered into between Skooli and the Institution (a “SLA”). The services contemplated by a SLA shall be performed by Skooli, and the Institution shall be responsible for any payments that may be required under such SLA, for the term of any Institution Order and for so long Users continue to make use of the Site pursuant to the Master Account. Skooli represents and warrants that during the term of any SLA, the Site will continue to be substantially free from programming errors and defects and, subject to the disclaimers set forth in the article titled “No Warranties”, below, available for use by Users. If any programming errors or other defects are discovered during the term of the Institution Order, Skooli shall promptly remedy those errors or defects in accordance with the applicable SLA.
Hours of Tutor Services received by the Users will be accumulated and billed on a monthly basis or as otherwise set forth in the Institution Order. The accumulation of hours or Tutor Services will be subject to Skooli’s Cancellation and No-Show Policy and our Late Policy. Terms of invoice payment are net 15 days. Unless specified otherwise on the Institution Order, all prices are exclusive of, and the Institution shall be solely responsible for and pay, all federal, state, provincial and/or local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax. No sales or use tax shall be added when a valid tax exemption is indicated on the Institution Order by the Institution. In the event the Institution fails to make any payment to Skooli when due, all past due amounts will be subject to a service charge accruing at a rate of 2% per month, calculated daily and compounded monthly (26.82% per annum) or the highest rate permitted by law, whichever is lower. If the Institution is in default for non-payment, then in addition to any other remedies available to Skooli, the Institution agrees to pay and shall indemnify and hold Skooli harmless in respect of such interest together with all of the costs, losses, charges, expenses and liabilities of Skooli related or incidental to its collection efforts or the enforcement of any of its rights in connection with such default (including legal fees).
The Institution acknowledges and agrees to the following:
(a) Skooli acts as a technology service that facilitates the provision of Tutor Services by Tutors to Users through an online marketplace. Skooli does not make editorial or managerial decisions concerning, nor does it otherwise exercise control or supervision over, the provision of Tutor Services, and Skooli will not be held responsible for any Tutor's failure to comply with applicable laws or regulations. Without limiting the terms of the “Limitation of Liability” article below, Skooli is not responsible for the use or exchange of any information, files or goods between Tutors and Users. Further, Skooli does not control and it is not responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Tutors or Users, including, without limitation, the Tutor Services provided or other information made available through the Site.
(b) Users are solely responsible for their interactions with Tutors. The Institution understands that while Skooli professionally screens all Tutors for the purposes of confirming profile data (the “Background Checks”) and endeavours to provide Users with a reliable, safe and secure online environment, Skooli cannot guarantee the accuracy of the Background Checks and the use of the Site by Users and the receipt of Tutor Services is at the risk and discretion of each User and the Institution agrees to encourage all Users to take reasonable precautions in all interactions with Tutors by way of the exercise of caution, discretion, common sense and judgment in, using the Site or receiving Tutor Services and disclosing information, including any personal information to Tutors, the provision of which is not required by the Site or the Tutor Services.
(c) Skooli reserves the right to contact Users, in compliance with applicable law, in order to evaluate compliance with Skooli’s rules and policies and these Institution Terms of Service. If the Institution or a User has reason to believe that a Tutor has violated the law or is defrauding, threatening or otherwise endangering any User, Skooli urges the Institution and/or the applicable User to immediately contact the police directly for assistance and the Institution agrees to promptly report any such instances to Skooli.
(e) Users are solely responsible for all equipment necessary to access and use the Site and to receive Tutor Services.
(f) The Institution will not access or use the Site nor will it permit any User to access or use the Site or the Tutor Services in any manner that harasses a Tutor or could otherwise interfere with any other party's use or enjoyment of the Site or Tutor Services.
Skooli does not endorse any Tutor or the Tutor Services provided by any Tutor and you and the Users seeking Tutor Services are solely responsible for determining and confirming the identity and suitability of the Tutors with whom Users interact. Subject to the foregoing, if the Institution Order so provides, Skooli will develop a select group of Tutors to provide Tutor Services to the Users (the “Institution Tutors”) based on the stated preferences of the Institution and needs of the Users, in which case the Users will only have access to the Institution Tutors. Skooli is not the agent of any Tutor and will not be responsible for any damages or harm which results from any interactions between the Institution or Users and Tutors or otherwise resulting from any claim that may be made by a User against the Institution as a result of User’s use of the Site or receipt of Tutor Services.
The Institution agrees in respect of the Institution Order and in respect of any User that may use the Site and access the Tutor Services under the Master Account as follows: (i) any legal remedy or liability that the Institution or a User may seek to obtain for the actions or omissions of a Tutor will be limited to a claim against such Tutor; and (ii) you will not attempt to impose liability on, or seek any legal remedy from Skooli with respect to such actions or omissions.
The Site and its Content is protected by copyright, trademark, and other laws of Canada and foreign countries. The Institution acknowledges and agrees that the Site, including all associated intellectual property rights, are the exclusive property of Skooli and its licensors. The Institution will not, nor will you encourage, permit, induce or compel any User or third party to copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site or its Content, or reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the Site or its Content, or remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site.
By making any Institution Content available on or through the Site, you hereby grant the following license to Skooli, which Skooli may exercise solely in connection with the Master Account, including its promotion of Tutor Services to Users, directly or indirectly: a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Institution Content. Skooli does not claim any ownership rights in any Institution Content and nothing in these Institution Terms of Service will be deemed to restrict any rights that you may have to use and exploit any Institution Content.
The Institution acknowledges and agrees that it is solely responsible for all Institution Content that you make available to Skooli through the Site or otherwise. Accordingly, the Institution represent and warrant that: (i) the Institution either is the sole and exclusive owner of all Institution Content that you make available pursuant to the Master Account, whether through the Site or otherwise or you have all rights, licenses, consents and releases that are necessary to grant to Skooli and to the rights in such Institution Content, as contemplated under these Institution Terms of Service; and (ii) neither the Institution Content nor your posting, uploading, publication, submission or transmittal of the Institution Content or Skooli's use of the Institution Content (or any portion thereof) on, through or by means of the Site or otherwise will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation and you agree to indemnify and hold Skooli harmless for any claims of third parties alleging .
The provision of Tutor Services may require use of a third party website or service (each a "Third Party Service"). Users shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required in order to access and receive any Tutor Services. Skooli will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such Third Party Service.
The Site may contain links to third-party websites or resources. You acknowledge and agree that Skooli is not responsible or liable for: (i) the availability or accuracy of such websites or resources to Users or otherwise; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Skooli of such websites or resources or the content, products, or services available from such websites or resources.
THE SITE AND ALL TUTOR SERVICES ARE PROVIDED ON AN "AS IS," "WHERE IS," "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. SKOOLI AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE AND TUTOR SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE SITE AND TUTOR SERVICES. SKOOLI DOES NOT WARRANT THAT THE SITE AND SERVICES WILL MEET THE REQUIREMENTS OF THE INSTITUTION OR USERS, OR THAT THE OPERATION OF THE SITE AND TUTOR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR, SUBJECT TO A SEPARATE SERVICE LEVEL AGREEMENT BETWEEN SKOOLI AND THE INSTITUTION, THAT DEFECTS IN THE SITE WILL BE CORRECTED IN A TIMELY MANNER OR AT ALL, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE.
THE INSTITUTION ACKNOWLEDGES AND AGREES THAT: (A) SKOOLI DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS OR THOSE OF THE USERS; (B) SKOOLI WILL NOT BE RESPONSIBLE FOR ANY OF THE FOREGOING ACTIVITIES; (C) YOU AND THE USERS ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS; AND (D) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SKOOLI OR THROUGH THE SITE OR ANY TUTOR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU UNDERSTAND THAT SKOOLI DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF TUTORS AND THAT SKOOLI MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF TUTORS OR THEIR COMPATIBILITY WITH ANY USERS.
At all times hereafter, termination of the Institution Order notwithstanding, the Institution and Skooli shall each treat as confidential and shall not, without the prior written consent of the other, divulge to any third party or, except to the extent necessary for performance hereunder, make any use of any business or technical information owned or supplied by the other or representatives of the other, or which is disclosed or made available by or on behalf of the other. Each party shall inform its officers, employees, agents and subcontractors who receives any of the above-described information of the provisions of this article, and, if they have not previously entered into a separate agreement dealing with the confidentiality of such information, the receiving party shall require them to agree in writing to be bound by the provisions of this article in the substantially the same manner as the parties are bound hereunder. Information which was legitimately in a party’s possession prior to its disclosure by or on behalf of the other party, or which is or shall become part of the public knowledge or literature from a source, either directly or indirectly shall not be subject to the provisions of this article. Information which shall become available to a party legitimately from a source other than the other shall be released from the provision to the extent necessary to permit such use and disclosure as is authorized by such other source. Neither party shall take advantage of any information which it is obliged to treat as confidential hereunder including for purposes of securing financial gain other than by means of the compensation set out in the Institution Order.
The Institution acknowledges and agrees that it has reviewed and agrees to the Skooli Privacy Policy, which is available at http://skooli.com/privacy, which policy governs Skooli's collection and use of “personal information” (as defined in the Skooli Privacy Policy and/or applicable law).
You agree to defend, indemnify, and hold Skooli, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your breach or violation of these Institution Terms of Service, applicable laws, your access to or use of the Site or Content and any claim made by a third party as a result of your use of the Site or in respect of any Institution Content, including any claim alleging your infringement upon the copyrights, trademarks, trade secrets, patents or other intellectual property rights of such third party.
YOU ACKNOWLEDGE AND AGREE THAT NEITHER SKOOLI NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE AND ITS CONTENT OR FACILITATING THE TUTOR SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE USER TERMS OF SERVICE OR FROM THE USE OF OR INABILITY TO USE THE SITE, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH TUTORS, USERS OR OTHER USERS OF THE SITE OR SERVICES OR OTHER PERSONS WITH WHOM A USER COMMUNICATE OR INTERACT AS A RESULT OF HIS OR HER USE OF THE SITE OR SERVICES WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SKOOLI HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL SKOOLI'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE INSTITUTION TERMS OF SERVICE EXCEED THE AMOUNT OF ALL AMOUNTS THE INSTITUTION HAS PAID IN CONNECTION WITH ALL TUTOR SERVICES RECEIVED VIA THE DURING THE IMMEDIATELY PRECEDING 6-MONTH PERIOD. THE INSTITUTION ACKNOWLEDGES AND AGREES THAT THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SKOOLI AND THE INSTITUTION.
All trademarks, service marks, logos, trade names and any other proprietary designations of Skooli used herein are trademarks or registered trademarks of Skooli. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
If you breach any of these Institution Terms of Service, Skooli will have the right to suspend or disable the Master Account and all underlying User Accounts or terminate these Institution Terms of Service, at its sole discretion and without prior notice to you. In the event Skooli terminates these User Terms of Service for your breach you will remain liable for all amounts due hereunder. Either party may terminate the Institution Order and these Institution Terms of Service for convenience at any time upon 30 days written notice to the other and the Institution shall pay Skooli only for Tutor Services delivered to Users prior to the effective date of such termination, subject to any minimum monthly or other periodic payment requirements set forth in the Institution Order. Either party may terminate the Institution Order and these Institution Terms of Service immediately: (i) upon the gross negligence or wilful misconduct of the other party, or (ii) if the other party has made a general assignment for the benefit of its creditors or a proposal or arrangement under the Bankruptcy and Insolvency Act (Canada) (or any similar legislation in any other applicable jurisdiction), or a petition is filed against the other party under such legislation, which petition is not removed within 30 days or if the other party shall be declared or adjudicated bankrupt or if a liquidator, trustee in bankruptcy, custodian, receiver, manager, or any other officer with similar power shall be appointed of or for the other party or if the other party shall commit an act of bankruptcy or shall propose a compromise or arrangement or institute proceedings to be adjudged bankrupt or insolvent or consents to the initiation of such appointment or proceedings or admits in writing its inability to pay debts generally as they become due. Upon termination for any reason, all User Accounts shall be immediately suspended, provided, however, that Skooli may facilitate the transfer of User Accounts to standard Skooli accounts upon Users completing the necessary enrollment and, if applicable, payment procedure.
These Institution Terms of Service and any action related thereto will be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflicts of law provisions. The exclusive jurisdiction and venue of any action, including those to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the provincial courts of Ontario located in the city of Toronto, Ontario, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
These Institution Terms of Service, together with the Institution Order and any Schedules, Appendices and/or Service Level Agreements forming a part thereof constitute the entire and exclusive understanding and agreement between Skooli and the Institution regarding the subject matter thereof, and these Institution Terms of Service supersede and replace any and all prior oral or written understandings or agreements between Skooli and the Institution.
You may not assign or transfer these Institution Terms of Service, by operation of law or otherwise, without Skooli's prior written consent, which consent may be delayed or withheld by Skooli in its sole discretion. Any attempt by you to assign or transfer these User Terms of Service, without such consent, will be null and of no effect. Skooli may assign or transfer these User Terms of Service, in its sole discretion, without restriction. Subject to the foregoing, these Institution Terms of Service will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Institution Terms of Service, will be in writing and given in accordance with the contact particulars of the respective parties set forth in the Institution Order. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
The Institution and Skooli agree that any dispute, claim or controversy between you and Skooli, or otherwise arising out of or relating to these Institution Terms of Service or the breach, termination, enforcement, interpretation or validity thereof or the use of the Site or the provision of the Tutor Services to Users (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Skooli are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Skooli otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. Notwithstanding the “General” section, below, if this specific “Dispute Resolution” section is held to be unenforceable, then the entirety of this section will be deemed void, but without affecting the validity of the remainder of these Institution Terms of Service, which will remain in full force and effect. Except as provided in the preceding sentence, this section will survive any termination of these Institution Terms of Service. Any such arbitration contemplated by this section will be administered in accordance with the National Arbitration Rules of the ADR Institute of Canada then in effect, except as modified by this "Dispute Resolution" section. The place of such arbitration shall be Toronto, Ontario, Canada and the language of the arbitration will be English.
The relationship of Skooli to the Institution is that of an independent contractor. Nothing contained herein shall be construed as creating any agency, partnership, joint venture, employment or fiduciary relationship between the parties and neither party shall have authority to bind the other party in any manner whatsoever.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Institution Order or these Institution Terms of Service to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Economic hardship or changes in market conditions are not considered Force Majeure Events. A party affected by a Force Majeure Event shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Institution Order. If a Force Majeure Event prevents Skooli from performance for a continuous period of more than fifteen (15) business days, the Institution may terminate the Institution Order immediately by giving written notice to Skooli.
Notwithstanding anything to the contrary set forth in the Institution Order, the termination of the Institution Order shall not relieve the parties of any obligations that, by their nature, survive such termination, including any claims arising out of performance under the Institution Order, warranties, indemnities, and obligations with respect to confidential information.
The failure of Skooli to enforce any right or provision of these Institution Terms of Service will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Skooli. Except as expressly set forth in these Institution Terms of Service, the exercise by either party of any of its remedies under these Institution Terms of Service will be without prejudice to its other remedies under these Institution Terms of Service or otherwise. Unless otherwise indicated or provided for by an agreement in writing between the parties, any reference to currency in the Institution Order or otherwise shall refer to United States Dollars. Time is of the essence to the performance of the Parties' obligations under this Agreement. If for any reason a court of competent jurisdiction finds any provision of these Institution Terms of Service invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Institution Terms of Service will remain in full force and effect. These Institution Terms of Service shall be binding on the parties hereto, their respective legal representatives, successors and permitted assigns.
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