LAST REVISED ON: JULY 14, 2021
The following Terms of Service (the “Terms”) govern the relationship between the individual agreeing to these Terms (“you” or “your”) and The Book Cubs LLC (“The Book Cubs”) and apply to the email or other documentation provided by The Book Cubs, which is hereby incorporated by reference (the “Services Description” and together with these Terms, the “Agreement”) setting forth the services to be provided by The Book Cubs hereunder (the “Services”) for the student(s) identified therein (the “Student”) and the fees payable by you for the Services (the “Fees”). The Services may include the provision of virtual group tutoring sessions (each a “Group Session”) and exercises and assignments (“Exercises”) for the Student.
BY ENTERING INTO AND ACCEPTING THESE TERMS IN THE MANNER DESCRIBED IN THE SERVICES DESCRIPTION, YOU REPRESENT THAT: (a) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (b) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE BOOK CUBS; (c) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; (d) YOU ARE THE PARENT OR LEGAL GUARDIAN OF THE STUDENT (AS DEFINED BELOW); AND (e) YOU CONSENT TO THE STUDENT’S PARTICIPATION IN THE SERVICES.
1. SERVICES. Subject to the terms and conditions of this Agreement, including payment of all applicable Fees, The Book Cubs will use commercially reasonable efforts to perform the Services during the Term (as defined below). The Book Cubs shall not be responsible for any delays or failures in its performance under this Agreement that result directly or indirectly from any delay or failure of either you or the Student.
2. FEES, EXPENSES AND PAYMENT. In consideration of the Services to be performed under this Agreement, you will pay The Book Cubs the Fees. Fees are payable monthly in advance. You will pay all Fees via the third party platform identified by The Book Cubs (the “Payment and Scheduling Platform”), or such other method identified by The Book Cubs within net 7 days of the date of an invoice being delivered to you via the Payment and Scheduling Platform or such other method as identified by The Book Cubs.
3. OBLIGATIONS OF YOU AND STUDENT. You will ensure that the Student: (a) will treat respectfully and not harass, tease, shame, or otherwise harm any personnel of The Book Cubs or any students participating in Group Sessions; (b) will endeavor to attend and be on time for all Group Sessions and complete all Exercises; (c) has an account on and complies with all obligations related to use of the Third Party Services (as defined below). You: (i) must register for an account on the Payment and Scheduling Platform; (ii) are responsible for ensuring that the Student has all necessary materials for participating in the Services (e.g. printers, paper, pencils, pens, computer or tablet, stable and high-speed internet connection, etc.) other than The Book Cubs Materials (as defined below); (iii) are responsible for providing any consents necessary for the Student’s use of the Third Party Services; and (iv) must provide at least 24 hours’ notice via the Payment and Scheduling Platform in the event that Student will not be able to attend a scheduled Group Session. You acknowledge and agree that you will not be entitled to any refund or rescheduling of any Group Sessions missed by the Student.
4. INTELLECTUAL PROPERTY. The Book Cubs or its licensors retain all right, title, and interest, including all intellectual property rights, in and to the materials, including the Exercises, provided by The Book Cubs hereunder (“The Book Cubs Materials”). The Book Cubs reserves all rights in and to The Book Cubs Materials that are not expressly granted to you or Student in this Agreement. The Book Cubs grants you and Student a non-exclusive, revocable, terminable right to make only those copies of The Book Cubs Materials that are necessary for Student to participate in and receive the Services.
5. THIRD PARTY SERVICES. The Book Cubs utilizes web-based services which are not operated by The Book Cubs, but by third parties in connection with providing the Services (“Third Party Services”). You are responsible for ensuring that the Student has an account on, complies with, and all has necessary consents to use the Third Party Services, including any consents required for the Third Party Service’s collection and use of the Student’s information. The Student’s use of the Third Party Services is subject to separate terms between you and/or the Student and the Third Party Services, and The Book Cubs is not a party to any such terms.
6. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BOOK CUBS PERFORMS THE SERVICES AND PROVIDES THE BOOK CUBS MATERIALS “AS IS” AND MAKES NO WARRANTY, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE ACCURACY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF ANY SERVICES PERFORMED, BOOKCUB MATERIALS PROVIDED, OR RESULTS OR INFORMATION GENERATED HEREUNDER OR ANY DECISIONS OR ACTIONS TAKEN BY COMPANY AS A RESULT OF ANY OF THE FOREGOING, AND THE BOOK CUBS EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) THE BOOK CUBS WILL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION, HOWSOEVER CAUSED, WHICH ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES REGARDLESS OF WHETHER YOU HAVE BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE BOOK CUBS’ TOTAL LIABILITY ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS YOU’VE PAID TO THE BOOK CUBS DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
8. INDEMNIFICATION. You agree to indemnify and hold harmless The Book Cubs and its employees, directors, and agents from any damage, cost, liability, expense, or claim arising our of or relating to any breach of warranty hereunder, any negligence or willful misconduct of Student, or any failure of Student to comply with Section 3(a), (b), or (c).
9. TERM AND TERMINATION. This Agreement will commence on the date that you accept or enter into these Terms in the manner described in the Services Description and will continue for the duration of the term set forth in the Services Description (the “Initial Term”) and will then automatically renew consecutive periods of the same duration as the Initial Term (or such other duration as agreed between you and The Book Cubs) (each a “Renewal Term”) unless either party provides notice of non-renewal prior to the commencement of the next Renewal Term (all Renewal Terms together with the Initial Term, the “Term”). The Book Cubs may increase the amount of the Fees in any Renewal Term upon notice to you. Either party may terminate this Agreement immediately upon written notice if the other party commits a material breach of this Agreement and fails to cure such breach within 10 days of receipt of notice. Email or message through the Payment and Scheduling Platform is sufficient for any notice required by this Section. Upon the termination or expiration of this Agreement you will remit any Fees owed to The Book Cubs hereunder and Sections 2 and 4through 9 will survive.
10.1 Assignment. You will not assign or otherwise transfer its rights and/or obligations under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by The Book Cubs.
10.2 Force Majeure. Except for obligations to pay any Fees, nonperformance of either party will be excused to the extent, and for so long as that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts, orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence.
10.3 Relationship Between the Parties. In all matters relating to this Agreement, you and The Book Cubs act as independent contractors. Neither party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of or act as agent, employee, or represent in any other capacity, the other party.
10.4 Governing Law. This Agreement shall be governed by the laws of the State of California, without regard to choice of law rules, and each party submits and consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California.
10.5 Partial Invalidity; Waiver. If any provision of this Agreement is declared void, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by applicable law, and the unenforceable provision shall be enforced to the fullest extent possible to achieve its intended purposes. A waiver of any provision of this Agreement must be in writing and executed by the party granting the waiver, and a party’s waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default; provided that no failure of either party to exercise any right hereunder or to insist upon strict compliance of the obligations hereunder and no custom or practice of the parties shall constitute a waiver of either party’s right to demand exact compliance with the terms of this Agreement.
10.6 Entire Agreement; Headings; Counterparts. This Agreement constitutes the entire agreement and understanding between you and The Book Cubs with respect to the subject matter hereof, and supersede all prior agreements, arrangements, and undertakings between the parties. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties. Nothing contained in any purchase order will modify or add to the terms of this Agreement.