eSpok - Language Learning Network -

Terms of Service

Last Revised 25-Feb-2008

1. DEFINITIONS
2. GENERAL PROVISIONS
3. PRIVACY
4. FEES
5. REFUNDS/NO CHARGEBACKS
6. MEMBERSHIP
7. POSTED CONTENT
8. INTELLECTUAL PROPERTY
9. NO THIRD-PARTY BENEFICIARIES
10. LIMITATION OF LIABILITY
11. INDEMNITY
12. REPRESENTATIONS AND WARRANTIES
13. BREACH, REVOCATION AND CANCELLATION
14. SEVERABILITY
15. GOVERNING LAW
16. EXCLUSIVE VENUE
17. DISPUTE FEES AND COSTS

1. DEFINITIONS

1. "Agreement" means the most current version of this terms of service agreement between us and you.
2. "Licensed Materials" means our intellectual property, including but not limited to, our logos, trade names, service marks, trademarks, and tradedress.
3. "Services" means each and every service we offer.
4. "Site" means www.espok.com and all other Uniform Resource Identifier we use to provide our Services.
5. "Student" means an independent service seeker of assistance with learning from a tutor.
6. "System" means all of our software and hardware.
7. "Tutor" means an independent service provider who offers to assist a Student in learning.
8. "We," "us," and "our" means eSpok, LLC, a Florida limited liability company.
9. "You," "your," and "yourself" means any Student, Teacher or other person, organization or business entity that purchases or otherwise seeks to use our Services, as well as their agents, assigns, and successors.

2. GENERAL PROVISIONS

1. Please direct any questions not answered by reading this Agreement to us at support@espok.com.
2. You may not access the Site or utilize our Services if you have not yet reached 21 years of age or are not a natural person utilizing our Services solely for your own personal use.
3. Before you may use any of our Services, you must:
1. read and agree to comply with this Agreement and
2. understand and accept that this Agreement:
1. takes effect the moment you access the Site;
2. contains all terms and conditions of your relationship with us and your use of our Services;
3. may only be amended or modified by us, unless we agree otherwise in writing with you;
4. may be amended or modified by us at any time and all such changes shall take full effect as soon as they are posted on the Site with your continued use of our Services as irrefutable proof of your consent to the terms and conditions of the most current version of this Agreement;
5. is the entire and only agreement between you and us; and
6. shall only terminate under the conditions provided for herein.
4. This Agreement shall in no way create an agency, employee-employer, franchisor-franchisee, joint enterprise, joint venture, or partnership relationship between you and us.
5. Our failure to require your performance of any provision of this Agreement shall not affect our right to require subsequent performance at any time of the same provision.
6. Should we determine, in our sole discretion, that you have violated any provisions of this Agreement or applicable laws, we may, with subsequent notice to you:
1. immediately cancel your account with us;
2. use your personal information to collect all pending and applicable fees and other amounts due;
3. charge you for all administrative costs in connection with any violation by you of any provision of this Agreement; and
4. bring legal action to enjoin violations and/or to collect all damages caused by your violations of this Agreement.
7. We cooperate with law enforcement and any other appropriate authorities and organizations
8. Unless otherwise provided herein, you agree that:
1. all notices from us to you shall be sent to your current email address on file with us and will be deemed immediately delivered even if such email address is no longer valid and
2. all notices from you to us shall be:
1. sent to notice@espok.com and deemed immediately delivered or
2. in writing and delivered by courier or registered mail to [your company address for mail], and shall only be deemed delivered once the letter arrives at our office.



3. PRIVACY
1. Protecting your privacy is very important to us; so we do not sell your personal information and will only use it for obvious, legitimate business purposes.
2. You agree that we may use your personal information to enforce this Agreement, and when complying with an order of a court or other government entity of competent jurisdiction.
3. When you establish an account with us, you are required to provide us with your name, address, telephone, email address and credit card information. We use this information to contact you when necessary, process payment for your use of our Services and to confirm your identity when you contact us.
4. We us clear gifts, cookies, log files, and third parties to create a profile of our users and the information gathered is personally identifiable as belonging to you so that we can better determine what Services and System adjustments will optimize your experience at the Site.
5. The System allows you to purchase our Services online. Paypal processes your payments, and we do not receive your financial information.
6. We may offer you opportunities to communicate with third parties. Please remember that we do not control or guarantee in any way the safety of the content on websites not operated by us and any information that is disclosed in these areas becomes public information, and you should exercise caution when deciding to disclose any personal information.
7. We follow established security procedures to keep your personal information safe from unauthorized third parties.
8. You alone are responsible for maintaining the security of your account access information-i.e., username, password and account-access hints.
9. You alone are responsible for confirming the accuracy of your personal information that we use to contact you. Any email messages we receive that appear to be from the email address we have on file for you shall be deemed to have been sent by you or your duly authorized agent with full authority to act on your behalf.

4. FEES
1. We may change our fees at any time and the new fees shall take immediate effect.
2. All memberships are monthly and will be automatically renewed one month from the date of your first membership fee payment, unless you notify us at subscription@espok.com at least seven calendar days before your current membership expires that you do not wish to renew your membership.
3. You must purchase points in order to reserve your place in and pay for a virtual class. Points will be reserved once you reserve a place in a virtual class, and they will be transferred to the Tutor if you attend the class or released back to you if you do not attend the class. Points are non-refundable and expire if not used within three years. The maximum duration of each class is one hour.
4. The Tutor decides how many points are needed in order to attend their class. Points are earned on an hourly basis and the Tutor decides how each hour's fee is divided by minutes. If a fraction of a point has been earned, we will round up to the next point, deduct our service fee and credit the balance to the Tutor.
5. If you are in a virtual class and are not satisfied with the Tutor or Student, you must immediately leave the virtual class or you will have to pay the Tutor and for your use of our Services.
6. A $100 administrative fee shall be applied to every chargeback you make on charges for payment to us.
7. We will make three attempts to charge your credit card on file with us for the purpose of collecting all outstanding service fees and then to renew your membership at the current level; your membership will default back to the introductory level if we are unable to collect all outstanding service fees and/or the renewal fee for your current membership level.

5. REFUNDS/NO CHARGEBACKS
1. No fees shall be refunded and all sales are final.
2. You shall not chargeback any fees paid to us, unless you have been the victim of identity theft and provide us with a valid police report. Your failure to comply with this section may result in immediate termination of your use of our Services and your obligation to pay liquidated damages of $100.00 to us for each charge back you make.

6. MEMBERSHIP
1. We may offer you the opportunity to pay for membership at various levels with each level priced differently and granting you the opportunity to make use of a greater number of our Services.
2. Members only pay for their particular membership level and fees at all levels shall be recurring with a $100 administrative fee shall be applied to every chargeback you make on charges for payment to us; see section 4 for more details.
3. We may cancel your membership or lower your membership level if we determine, in our sole discretion, that you have violated the terms of this Agreement.
4. You may cancel your membership by simply writing us at cancel@espok.com, and your cancellation shall take effect twenty-four (24) hours later.

7. CONTENT
1. We may review and delete any content you post on the Site or utilizing our Services or System if we determine, in our sole discretion, that the content violates the rights of others or is otherwise not appropriate for the Site.
2. You hereby agree not to:
1. talk about sex, violence, race with Tutors or Students on our Site;
2. link to any other website for advertising or any other purpose; or
3. to spam others.

8. INTELLECTUAL PROPERTY
1. You may not copy or otherwise attempt to benefit or assist others to benefit, directly or indirectly, from use of out Licensed Materials other than through normal use of the Site.
2. You hereby grant us full rights to copy, display, distribute and otherwise use all content that you post on the Site or otherwise through the use of our Services or System.
3. You hereby grant a limited license to Students, for use of materials you post, within the scope of your teaching them and for private use.

9. NO THIRD-PARTY BENEFICIARIES There shall be no third-party beneficiaries to this Agreement. All assignments are void unless consented to by us in writing.

10. LIMITATION OF LIABILITY
1. You agree that we will not be liable for any harm or loss that may occur in connection with:
1. any act or omission by you or your agent, whether authorized or unauthorized;
2. your use or inability to use our Services;
3. your, messages to and communications with, contact with, or attempts to contact other users of our Services, whether a Student, Tutor or otherwise;
4. public or private information, whether accurate or inaccurate or fraudulent, provided by you, whether a Student, Tutor or otherwise;
5. access delays or access interruptions to our Services;
6. the failure to deliver or erroneous delivery of information;
7. events outside our control;
8. your inappropriate behavior when interacting with others on our Site.
9. your failure to pay us any applicable fees;
10. the actions, orders and judgments of administrative, judicial and other governmental bodies.
11. your failure to pay any and all applicable taxes.
2. We shall not be liable to you or anyone else for delays in or failures to perform our obligations under this Agreement that directly or indirectly result from events or causes beyond our reasonable control including, but not limited to: hardware or software failures, other equipment failures, electrical power failures, labor disputers, strikes, riots, hurricanes, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or administrative bodies, or the non-performance of third parties.
3. We shall not be liable for any direct, indirect, consequential, incidental, special or exemplary damages of any kind, including but not limited to lost: profits, goodwill, use, data or other intangibles whether in contract, tort or negligence even if you we are aware of the possibility or probability of such damages.
4. If we are deemed liable to you by a competent court, our maximum possible liability to you for any reason shall not exceed $100.



11. INDEMNITY
1. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US AND OUR MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES OR COSTS, INCLUDING ALL ATTORNEY FEES, COLLECTION FEES AND COURT COSTS, RELATED TO ANY DEMAND OR LITIGATION IN ANY WAY RELATED TO:
1. YOUR USE OF OUR SERVICES;
2. YOUR INTERACTIONS OR ATTEMPTS TO INTERACT OR MEET WITH OTHER USERS OF OUR SYSTEM OR SERVICES;
3. YOUR BREACH OF THIS AGREEMENT;
4. INACCURATE OR FRAUDULENT INFORMATION PROVIDED BY YOU OR ANOTHER USER OF OUR SYSTEM OR SERVIES;
5. THE CANCELLATION OF YOUR MEMBERSHIP OR LOWERING OF YOUR MEMBERSHIP LEVEL; OR
6. INFRINGEMENT OF ANY THIRD-PARTY RIGHTS ARISING ARISING FROM YOUR USE OF OUR SERVICES.

12. REPRESENTATIONS AND WARRANTIES
1. You represent and warrant that:
1. all information you provide to us is accurate and you will update your information within ten (10) calendar days after it becomes inaccurate;
2. you will not directly or indirectly infringe the legal rights of third parties or our Licensed Materials; and
3. none of your agreements with us are entered into in bad faith and none of the information or documents your provide to us contain fraudulent or otherwise inaccurate information.
4. you are at least 21 years of age and are legally competent to enter into this contract.
2. We make no representations or warranties of any kind in connection with this Agreement.
3. With regard to the Site and our Services
1. We expressly disclaim all warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
2. We do not warrant that our Services will meet your requirements be uninterrupted or error free.
3. We do not warrant that Tutors have the ability, knowledge or training to teach and we are not responsible for the quality of any Tutor or course.
4. We do not make any warranties or representations regarding use, correctness, accuracy, or reliability.
4. You agree that:
1. you use the Site and our Services at your own risk;
2. you use our Services on an "as-is" and "as-available" basis and at your own risk and discretion and risk;
3. you alone are responsible for any damage to your hardware and software or loss of data in any way related to your use of the Site or our Services;
4. neither we nor our members, officers, employees or agents shall have any liability to you; and
5. no advice or information, whether oral or written, obtained by you from us shall create any warranty not expressly stated in this Agreement.

13. BREACH, REVOCATION AND CANCELLATION.
1. Unless otherwise provided herein, any breach of this Agreement by you must be remedied within five (5) calendar days after we send email notice of the breach to you.
2. Such notice shall be deemed delivered when sent to the e-mail address then on record with us.
3. If you fail to cure the breach within such period, we will have no further obligation to you and may terminate your membership and/or seek any other remedy available at law or in equity including but not limited to obtaining an injunction or specific performance.
4. Except as otherwise specified in this Agreement, notice of our actions pursuant to this Agreement will usually be provided to you within fifteen (15) calendar days following the taking of such action.
5. In the event that you breach any provision of this Agreement, you agree that we may immediately terminate your use of our Services and System.
6. In the event such a breach occurs by you, we may post on the Site that you have violated our terms and conditions of service.
7. In the event we determine that you have or continue to violate this Agreement:
1. We reserve the right to prosecute civil and/or criminal actions against you for any abusive behavior you engage in regarding your use of our Services and System; and
2. You will also be subject to legal, administrative, and technical fees in a reasonable amount for damages incurred by us for any violations of this Agreement.

14. SEVERABILITY
1. In the event that one or more provisions of this Agreement is deemed unenforceable or invalid, the unaffected provisions of this Agreement shall continue in effect, and the unenforceable or invalid provisions shall be amended or replaced by us with a provision that is valid and enforceable and which achieves, to the greatest extent possible, the objectives and intent of the original provisions.

15. GOVERNING LAW
1. This Agreement shall be governed by the federal laws of the United States and the laws of the State of Florida, without regard to any conflict of laws provisions.

16. EXCLUSIVE VENUE
1. Any actions relating to or arising out of this Agreement or any use of our Services that include us as a party shall be brought exclusively in the federal and state courts for Miami-Dade County, Florida, USA, and you consent to the exercise of personal jurisdiction over you by these courts in all such actions.
2. You agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts of your domicile and Miami-Dade County, Florida, USA.

17. DISPUTE RELATED FEES AND COSTS
1. If we reasonably decide to retain an attorney or collection agency to enforce this Agreement, the prevailing party will be entitled to an award of all reasonable fees and costs, regardless of whether a judgment is rendered or suit is ever filed.