Terms of Service
Background. Electives, Inc. (“Electives”) has developed an online platform and marketplace (the “Electives Platform”) for the delivery of live educational classes (“Classes”) to Elective’s customers. The Electives Platform, Classes, and related services are referred to collectively as the “Services”. Electives also provides a public website (the “Site”) to provide information to prospective customers, instructors and class participants and to provide a portal to the Electives Platform for authorized users.
- These Terms of Service (this “TOS”) constitute a legal agreement between Electives and the individual, company or other legal entity (“you,” “your”) using the Site or the Services. By using the Site or the Services, you represent that you have read, understand and agree to all of the provisions in this TOS. If you use the Site or the Services on behalf of an organization, then you agree to this TOS on behalf of that organization, and you represent to Electives that you have the authority to do so. If you do not agree to this TOS, then you must not use the Site or the Service, as applicable.
- If you or the organization you represent has entered into a separate, written customer agreement with Electives, then the provisions of that agreement will take precedence over any conflicting provisions in this TOS for the duration of that agreement as to the subject matter of that agreement.
- If you and Electives have executed an Order (defined below), then Electives agrees to provide the applicable Services to you or your organization (as applicable, “Customer”) in accordance with and subject to each such Order and this TOS.
- If you are an instructor teaching a Class, then the relationship between you, as an instructor, and Electives will also be governed by the Electives, Inc. Instructor Terms and Conditions (provided separately), and the provisions of those Instructor Terms and Conditions will take precedence over any conflicting provisions in this TOS for the duration of your service as an instructor as to the subject matter of the Instructor Terms and Conditions.
Changes to these Terms; Exception. Electives reserves the right to revise this TOS at any time by posting the revised TOS on the Site. The revised TOS will be effective immediately upon posting, with an updated effective date. By using the Site or the Services after any such revised TOS has been posted, you signify your agreement to the revised TOS. Notwithstanding the foregoing, the version of this TOS in effect at the time of any Order shall apply to the Services for the duration of such Order.
Terms Specifically Applicable to the Site.
- The publicly available areas of the Site are provided solely for informational purposes and to allow you to contact Electives to request further information about the Services or about becoming an Electives instructor or, for registered users, to login to your account on the Electives Platform. You agree to use the Site solely for such purposes.
- The Site and its entire contents, features and functionality are owned by Electives and its licensors and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws. You agree not to reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any portion of the Site or any materials on the Site, except as otherwise expressly agreed by Electives.
- You also agree not to use the Site in any manner that could disable, overburden, damage or impair the Site or interfere with any other person’s use of the Site or the Services, or use any robot, spider or other automated means to access, monitor or copy any portion of the site, or introduce any virus, worm, trojan horse, or other malware or harmful technology, attack or attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site.
- If you have established or have been assigned a user account, you agree to maintain the confidentiality of your user account credentials, to notify Electives immediately upon becoming aware of or suspecting any unauthorized use of your user account, and not to allow others to use your login credentials. Electives will not be responsible for any loss or damage arising from unauthorized access to the Site or the Services through your user account.
- If you request information from Electives or otherwise provide information to Electives through the Site, you represent to Electives that all information provided by you is accurate and that you have the right to provide such information.
Terms Specifically Applicable to the Services.
- Orders. From time to time, Customer may request that Electives provide Services to Customer. For each request, Electives and Customer will execute a Services Order Form (each, an “Order”). Each Order shall include the detailed requirements of the Services, including the Class description, scheduling and delivery details and fees. Each Order becomes effective when signed by Electives and Customer.
- Fees. In consideration for the Services, Customer shall pay Electives the fees and expenses set forth in each Order. Payment shall be made in accordance with the terms set forth in the Order. All late payments shall bear interest from the due date until paid at a rate equal to 1.5% per month, or the maximum rate permitted by law. If Customer disputes in good faith any portion of an invoice, Customer shall notify Electives in writing and pay all fees except for the good faith amount disputed.
- Term. As to any Order, the effective date of this TOS commences upon execution of the Order and continues in effect for the duration of such order or until otherwise terminated as set forth herein.
- Termination. As to any Order, either party may terminate this TOS or such Order at any time upon thirty (30) days prior written notice. Orders may not be terminated with less than thirty (30) days notice, but Electives will work in good faith to reschedule any Services as mutually agreed if requested by Customer. As to any Order, either party may terminate this TOS or such Order for material breach if the other party fails to cure such breach within 30 days of receipt of written notice from the non-breaching party specifying the nature of the breach; provided that, with respect to any failure of Customer to pay any fees when due, such cure period shall be 10 days from receipt of notice that payment is overdue. Any provision of this TOS which by its nature must survive termination in order to be effective as to the applicable Order shall survive any such termination.
- Intellectual Property Rights and Licenses. “Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights. Electives and its licensors, as applicable, retain all right, title and interest, including all Intellectual Property Rights, in and to the Electives Platform and all components thereof, Resultant Data (defined below), the Class content and related materials, including any supplemental Class materials Electives provides before or after the Class to enhance learning, and any other materials provided directly by any Class instructor (collectively, the “Class Materials”) and all derivative works (as defined under the U.S. Copyright Act of 1976, as amended) of any of the foregoing. Except as expressly stated in this TOS, neither party will acquire any rights, title or interest in or to any of the Intellectual Property Rights belonging to the other party or its licensors. Electives grants to Customer and its employees a nonexclusive, worldwide, royalty-free, nonsublicensable license during the term of the applicable Order to access and use the Electives Platform and to allow the maximum number of participants set forth in such Order to attend the Class. Customer and its employees may use the Class Materials solely for their personal use and not for any commercial purposes. Customer and its employees shall not share any Class Materials externally, nor shall they make any recording of any Class Materials or copies without Electives’ express written approval.
- Confidentiality. In connection with any Order, each party may receive or have access to documents, records and information of a confidential and proprietary nature to the other party. Each party acknowledges and agrees that such information is an asset of the other party, is not generally known to the trade, is of a confidential nature and must be kept strictly confidential and used only in the performance of such Order and this TOS. Each party agrees that it will not use, disclose, communicate, copy or permit the use or disclosure of any such information to or by any third party in any manner whatsoever except as otherwise directed with the written permission of the other party. This paragraph shall survive any termination of such Order or this TOS as to such Order.
- Personal Information. Customer represents and warrants that it has the right to provide information relating to Class participants, including personal contact information, to Electives and its third party instructors for purposes of delivering the Class and any Class Materials, and Customer further represent and warrants that is has obtained all consents necessary in order to provide such information to Electives. Electives represents and warrants that it shall only use such personal information for purposes of delivering the Class and Class Materials, unless the Class participant expressly consents to receive additional communications from Electives.
- Representations and Warranties; Disclaimer. Each party represents, warrants and covenants to the other that: it is not a party to any oral or written agreement, contract or understanding which would prevent, limit or hinder the performance of any of its obligations under the applicable Order or this TOS as to such Order; it has full power and authority to enter into this TOS as to each Order, and to perform all of the obligations hereunder and thereunder without violating the legal or equitable rights of any third party; and it will not make any disparaging or negative remarks regarding the other party, its employees, officers, directors or products.
- Statistical Information. Notwithstanding anything to the contrary in this TOS, but subject to Electives’ non-disclosure obligations under Section 5(f), Electives may analyze data and information derived by or through Electives’ provision of the Site and the Services and your access to or use of the Site and the Services to provide, evaluate and improve the Site and the Services. In addition, Electives may de-identify and aggregate such data and information with other, similarly de-identified data and information, (collectively, “Resultant Data”), and, provided that your identity and no personal, confidential or proprietary information belonging to you can be reverse engineered or otherwise determined from the inspection, analysis or processing of Resultant Data, use Resultant Data without restriction.
- Disclaimer. THE SITE AND ALL SERVICES ARE PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS, AND USE OF THE SITE AND THE SERVICES IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS TOS, ELECTIVES MAKES NO REPRESENTATION, WARRANTY, COVENANT, OR GUARANTEE, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, COMPLETENESS, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A CLASS OF DEALING, USAGE, OR TRADE PRACTICE.
- Indemnification. You agree to indemnify, defend and hold harmless Electives and its directors, officers, employees and agents from and against all third-party claims, demands, and liabilities, including costs and attorneys’ fees, to which Electives may be subjected by reason of any claim based upon (a) your breach of any representation, warranty or obligation set forth herein, (b) your negligence or willful misconduct, and (c) your and, if you are a Customer, your employees’ participation in any Class.
- LIMITATION OF LIABILITY. IN NO SESSION WILL EITHER PARTY, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR (II) ANY DIRECT DAMAGES IN EXCESS OF ANY AMOUNTS PAID OR PAYABLE UNDER THE ORDER WHICH GIVES RISE TO THE CLAIM IN THE 12 MONTHS PRIOR TO THE CLAIM, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL NOT APPLY TO ANY OBLIGATION RELATING TO CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS, PERSONAL INFORMATION OR INDEMNIFICATION HEREUNDER.
- Disputes. Any controversy or claim arising out of or relating to this TOS, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Boston, MA. The arbitrator shall apply the governing law set forth in this TOS, including any applicable statute of limitations. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this paragraph shall prohibit either party from seeking injunctive or other equitable relief in any court of competent jurisdiction in order to enforce any Intellectual Property Rights.
- Governing Law, Venue, Waiver. This TOS shall be construed and enforced pursuant to the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. Any action, litigation or proceeding of any kind arising from or relating to this TOS that is not subject to arbitration shall be brought in the appropriate state or federal courts for the Commonwealth of Massachusetts having jurisdiction over the claim, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this TOS.
- Notices. All notices, requests, consents, claims, demands, waivers and other communications under any Order or this TOS must be in writing and addressed to the other party at its address set forth in the applicable Order (or to such other address that the receiving party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Any such notice shall be effective only on receipt by the receiving party and when provided in compliance with the requirements of this Section.
- Miscellaneous. This TOS together with any Order, if applicable, constitutes the sole and entire agreement of the parties with respect to the subject matter of this TOS and such Order, if any, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. If any term or provision of this TOS is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this TOS or invalidate or render unenforceable such term or provision in any other jurisdiction. Subject to Section 3, no amendment to or modification this TOS is effective unless it is in writing and signed by an authorized representative of each party. No waiver by either party of any provision of this TOS shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this TOS shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. All rights and remedies provided in this TOS are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. You shall not assign this TOS or any Order without the prior written consent of Electives. Any purported assignment, transfer, delegation or subcontract in violation of this Section shall be null and void. This TOS benefits solely the parties to this TOS and the applicable Order, if any, and their respective permitted successors and assigns, and there are no third party beneficiaries. You acknowledge that the relationship of you to Electives is at all times that of an independent contractor. This TOS does not constitute, and shall not be construed as constituting, an employment relationship between Electives and any persons or as an undertaking by you to hire any person as an employee of Electives. The headings of the Sections and subsections of this TOS are for convenience only and shall not enter into the interpretation of this TOS.