Master Service Agreement
Updated August 4, 2021
Pearl has updated our Master Service Agreement (“Agreement”), which is effective as of the date shown above. Disputes about this Agreement and the Services and Websites provided by Pearl are subject to binding arbitration and a waiver of class action rights detailed in Section 18 below.
Trilogy Mentors Inc., dba Pearl (“Pearl,” “we,” “our”) is located and registered in the Commonwealth of Virginia. Pearl offers education management and facilitation tools available online as subscription services (“Subscription Service”) as well as support and professional services (all collectively, the “Services”), and websites, including but not limited to www.tutorwithpearl.com, www.trilogymentors.com, and placetotteach.com (collectively, the “Websites”).
1. Your relationship with Pearl
1.1 Pearl has three different types of end users:
- We call users of the Websites “Site Visitors.”
- We call users who are administrators or account owners of our Subscription Services “Subscribers” (regardless of if they are paid subscribers or free trial accounts).
- We call users within Subscribers’ accounts (e.g., instructors, students, parents, etc.) “Subscriber Account Users.”
We refer to these three types of end users collectively as “Users” or “you” for purposes of this Agreement. Regardless of what type of User you are, this Agreement create a legally binding agreement between you and Pearl and explain the rules governing use of the Services and Websites. If you do not agree to this Agreement, please do not access or use the Services and Websites.
2. Accepting the Agreement
2.2 By accepting this Agreement, you represent that you have the legal power to do so. If you accept this Agreement on behalf of an organization, (a) “you” and “your” will refer to that organization and any individual accessing the Services through your account will be referred to as a “User”; and (b) you understand and agree that the organization will be responsible for ensuring that each of its Users complies with this Agreement.
2.3 You may not use the Services and may not accept the Terms if you are barred from receiving the Services under the laws of the United States or other countries, including the country in which you are a resident or from which you use the Services. If you represent an organization, you will ensure that: (a) your Users do not use the Services in violation of any export restriction or embargo by the United States; and (b) you do not provide access to the Services to persons or entities on any restricted lists.
2.4 If you are under 18 years old, you may not create a Pearl account or use the Services unless your legal guardian has reviewed and agreed to this Agreement. If you are a parent or legal guardian permitting a person under 18 years of age (a “Minor”) to create an account and/or use the Services, you agree to: (i) supervise the Minor’s use of the Services and their account; (ii) assume all risks associated with, and liabilities resulting from, the Minor’s use of the Services and their account; (iii) ensure that the content in the Services and on the Websites are suitable for the Minor; (iv) ensure all information submitted to us by the Minor is accurate; and (v) provide the consents, representations and warranties contained in the Terms on the Minor’s behalf.
3. Provision of the Services by Pearl
3.1 You and each User may access and use the Services during the applicable subscription term, solely in connection with your internal business operations and subject to this Agreement. You may not assign or grant a sub-license of your rights to use the Services, grant a security interest in or over your rights to use the Services, or otherwise transfer any part of your rights to use the Services.
3.2 Pearl may provide implementation, consulting, configuration, integration, training, advisory, development, and other professional services (“Professional Services”) as described in, and subject to payment of the fees specified in, an Order. Any material changes requested or required to be made to the Order will require a change order agreed and signed by the parties. Pearl hereby grants you a right to access and use the goods, products, or other deliverables identified in an Order for Professional Services (“Deliverables”) for your internal business purposes, pursuant to this Agreement.
3.3 Pearl provides technical support for the Subscription Service (“Support”) through its online help center.
3.4 If you choose a trial subscription, during the trial period the Subscription Service is provided “AS-IS” (with no warranties). Pearl will not be liable for any damages related to your use of the Subscription Service during the trial period.
3.5 Pearl warrants that: (a) during the applicable subscription term, the Subscription Service will operate substantially as described in the online documentation; (b) the Support and Professional Services will be performed in a competent and workmanlike manner in accordance with generally accepted industry standards, this Agreement and applicable Order; and (c) the Deliverables will conform to the specifications in the applicable Order. If you believe a Service or Deliverable does not comply with these warranties, you must notify Pearl in writing within 30 days of delivery of the non-conforming Service or Deliverable. As your exclusive remedy and Pearl’s sole liability for breach of these warranties, Pearl will use commercially reasonable efforts to correct the non-conforming Service or Deliverable at no additional charge to Customer within a reasonable time period. These warranties will not apply to any failure caused by a defect in or modification to the applicable Service or Deliverable caused or made by you, any User, or a person acting at your direction.
3.6 The Subscription Service includes the features and functionality applicable to the version selected. Pearl may update the content, functionality, and user interface of the Subscription Service in its sole discretion. Some features and functionality may be available only with certain versions of the Subscription Service. Pearl does not represent or warrant that a particular subscription plan will be offered indefinitely and reserves the right to change or alter the features and options, including volume of transmissions and maximum storage space, in a particular subscription plan without prior notice.
4. Using the Services
4.1 In order to register for and access certain Services, you and each User will be required to provide information. You agree that any registration information given to Pearl, including contact information (e.g., e-mail address) and billing/payment details, will be accurate and kept current.
4.2 You will obtain, maintain, and support all internet access, equipment, and ancillary services needed to access the Services and Deliverables. User accounts are for named individuals and cannot be shared or used by more than one individual at a time. Each User must keep a secure password for accessing the Subscription Service, which must be kept confidential. You will (a) if applicable, obtain from the Users on your account any consents necessary for Pearl to provide the Services; (b) maintain commercially reasonable security standards with respect to use of the Pearl Assets (defined below); and (c) in the event of any unauthorized access to or use of the Services or Deliverables, promptly notify Pearl at email@example.com.
4.3 You are responsible for (a) access to and use of the Subscription Service and Deliverables by the Users on your account and each User’s compliance with this Agreement; (b) the secure transmission of your Content to the Subscription Service, (c) the legality, reliability, integrity, accuracy and quality of the Content, any conclusions drawn or actions taken therefrom, and the means by which you or the Users acquired the Content so that Pearl and its service providers may lawfully use, process, and transfer the Content in accordance with this Agreement; (d) if desired, backing-up your Content outside of the Subscription Service; and (e) if required, providing qualified personnel to timely perform your duties and tasks specified in an Order or as may be reasonably necessary in connection with Pearl’s performance of the Professional Services and providing Pearl with any information, data and other materials that you agree to provide under an Order related to Professional Services.
4.4 You will not and will ensure that each User does not:
(a) license, sublicense, sell, resell, rent, lease, transfer, distribute, provide access, or otherwise commercially exploit, or make the Services or Deliverables available to any third-party except as expressly authorized herein;
(b) copy, modify, translate, adapt, merge, or create derivative works of the Services or Deliverables or disassemble, decompile, reverse engineer or otherwise extract the source code of, or reduce to human-perceivable form, any part of them unless the foregoing restrictions are expressly prohibited by applicable law;
(c) use or access the Services or Deliverables (i) for competitive purposes or (ii) other than in compliance with all applicable laws and regulations (including export control laws and restrictions);
(d) remove or modify any proprietary markings or restrictive legends in the Subscription Service or on the Deliverables;
(e) infringe or misappropriate any Pearl Assets;
(f) attempt to gain unauthorized access to the Services or any portion thereof;
(g) introduce into the Subscription Service viruses, malware, Trojan horses, worms, spyware or other destructive code, or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Subscription Service;
(h) access or attempt to access the Subscription Service by any means other than Pearl’s publicly supported interfaces, including through any automated means (i.e. use of scripts or web crawlers);
(i) probe, scan, or test the vulnerability of any Pearl system or network; or
(j) access, store, create, share, display, publish or transmit any material that is unlawful or related to illegal activity, threatening, deceptive, defamatory, discriminatory, obscene, libelous, an invasive of another’s privacy, or infringes the intellectual property rights of a third-party through the Subscription Service.
(k) store, host, or send unsolicited email (spam) or SMS messages.
5. Your Content
5.1 As between the parties, you own all right, title, and interest in and to the Content in your account, including all intellectual property and proprietary rights therein. Except as expressly set forth herein, Pearl acquires no right, title, or interest from you hereunder in or to your Content. “Content” means the data, information, images, and other content that is uploaded to, imported into or created in the subscription Service by the Users, but does not include Statistical Data (as defined herein).
5.2 You hereby grant Pearl a worldwide, non-exclusive, non-transferable, right to access, use and process the Content: (a) as requested by you or a User; (b) as necessary to manage accounts, provide Support and provide and improve the Services, including to identify, investigate, or resolve technical or security problems with the Services and to detect and protect against fraud; and (c) as required by applicable law, regulation, legal process or enforceable governmental request and to detect and prevent violations of this Agreement.
5.3 If you believe that Pearl, or any User, has violated a copyright, trademark or other intellectual property right you claim in your work, please contact us at firstname.lastname@example.org. Pearl responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA).
5.4 We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement.
6. Multi-User Accounts
6.1 You acknowledge that you retain administrative control as to who is granted access to your account. Each account is controlled by an account owner tied to a specific email address and may also have one or more billing admins and team admins to help manage the account. Pearl is entitled to rely on communications from the account owner and admins when servicing your account. If a person within your organization requests a change to the account owner, we will attempt to contact the account owner for consent, but to the extent that the account owner does not respond to our communications, we will transfer the account owner based on our internal verification methods.
7. Education Accounts
7.1 If you are a school, school district, or related person, entity or organization (such as an administrator or educator who accesses the Services on their behalf) (each a “School”), then this Section applies to you and “you” shall mean the School purchasing the account, as well as its Users.
7.2 You agree (a) to only provide access to the Service to those individuals employed by or enrolled as students in your School or classroom and (b) to be responsible for any Content, communications, and activity that occur under such accounts. Regardless of the account level being utilized, to the extent a School offers or requires access to the Services to Minors, the School will be responsible under this Section 7 for those User accounts.
8.1 Pearl will defend you, your officers, directors and employees (the “Customer Indemnified Parties”) against any claim, demand, suit or proceeding (each, a “Claim”) made or brought against the Customer Indemnified Parties by a third-party alleging that a Subscription Service or a Deliverable infringes or misappropriates such third-party’s intellectual property rights, and will indemnify the Customer Indemnified Parties from any finally awarded damages or settlement amount and reasonable expenses (including attorneys’ fees) to the extent arising from such Claim. Notwithstanding the foregoing, Pearl will not be obligated to indemnify the Customer Indemnified Parties if an infringement or misappropriation claim arises from: (a) the Content; (b) a User’s misuse of a Subscription Service or Deliverable; (c) a User’s use of the Subscription Service or Deliverable in combination with any products, services, or technology provided by a third-party or a modification of the Subscription Service or Deliverable by you or a User, if the Subscription Service or Deliverable or use thereof would not infringe without such combination or modification; or (d) continued use of the Subscription Service or Deliverable after notice by Pearl to discontinue use. If an infringement or misappropriation Claim is made or threatened, Pearl may, in its sole discretion: (i) replace or modify the infringing Subscription Service or Deliverable so that it is non-infringing (but functionally equivalent); (ii) procure the right for you to continue using the Subscription Service or Deliverable; or (iii) notwithstanding Pearl’s obligation to indemnify hereunder, terminate use of the infringing Subscription Service or Deliverable and refund any unused prepaid fees covering the terminated portion of the Subscription Service or Deliverable.
8.2 You will defend Pearl and Pearl’s affiliates, and their respective officers, directors and employees (the “Pearl Indemnified Parties”) against any Claim made or brought against the Pearl Indemnified Parties by a third-party or User (a) alleging your Content infringes or misappropriates any intellectual property rights; (b) related to ownership of your Content; or (c) related to an admin’s actions with respect to your account, and will indemnify the Pearl Indemnified Parties from any finally awarded damages or settlement amount and reasonable expenses (including attorneys’ fees) to the extent arising from such Claim.
8.3 A party seeking indemnification (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) prompt written notice upon becoming aware of any Claim subject to indemnification hereunder (a delay in providing notice does not excuse these obligations unless the Indemnifying Party is prejudiced by such delay) and reasonable cooperation to the Indemnifying Party in the defense, investigation or settlement of any Claim at the Indemnifying Party’s expense. The Indemnifying Party will have sole control of such defense, provided that the Indemnified Party may participate in its own defense at its sole expense. The Indemnifying Party may not settle a Claim without the Indemnified Party’s consent if such settlement imposes a payment or other obligation on the Indemnified Party. This Section states the Indemnifying Party’s sole liability to, and the Indemnified Party’s exclusive remedy for, any claim or action described in this Section.
9. Billing, Payment and Renewal
9.1 Pearl will bill you in advance for use of the Services on the frequency that you select (monthly or annual).
9.2 Current pricing for non-enterprise accounts are published on the Pearl Website. Pearl reserves the right to modify pricing at any time for renewal terms; provided, that Pearl will notify you or the account admin prior to any price increase affecting that account. If you upgrade to a higher tier of paid account, Pearl will credit any remaining balance from your previous subscription payment to your new tier.
9.3 All payments due are in U.S. dollars unless otherwise indicated on the subscription pricing page, Order, or invoice. Credit card, debit card or other non-invoice forms of payment are due at the beginning of the relevant subscription term. Pearl will charge you for all fees when due. Pearl may enable other forms of payment in the Account Settings page, which may be subject to additional terms. Payments for invoices are due thirty (30) days after the invoice date, unless otherwise specified, and are considered delinquent thereafter.
9.4 Your subscription will automatically renew at the end of each subscription term and you authorize Pearl to charge the credit card, debit card or other non-invoice forms of payment for each renewal. If you wish to change your subscription or cancel your auto-renewal, the account owner or the admin must change the settings in the page provided in the Subscription Service or contact our customer support team prior to the renewal date.
9.5 Billing disputes must be notified to Pearl in writing before the due date. Delinquent payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Pearl in collecting delinquent amounts. If delinquent fees are not paid, Pearl will automatically downgrade your account to a free account and/or suspend or terminate your use of the Services. Downgrading your account may cause the loss of Content, features, functionality or capacity. If you require a purchase order, vendor registration form, or other documentation, such requirement will in no way relieve, affect or delay your obligation to pay amounts when due.
9.6 You are responsible for any taxes, duties, and customs fees associated with the sale of the Services (other than Pearl’s income tax) (collectively “Taxes”), and you will pay Pearl for the Services without any reduction for Taxes. If Pearl is obligated to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide Pearl with a valid tax exemption certificate. If you are required by law to withhold any Taxes from your payments to Pearl, you must provide Pearl with an official tax receipt or other appropriate documentation to support such withholding and reimburse Pearl for such withholding tax.
9.7 Unless otherwise agreed to in an Order, Professional Services will be performed remotely and are provided on a time and materials basis (“T&M”) at the rates set forth in the Order. T&M estimates are not a guarantee that the project will be completed in the estimated number of hours. Actual T&M hours may be more or less. In addition, you will reimburse Pearl for reasonable, documented, out-of-pocket expenses (including all travel costs and expenses) incurred by Pearl in the course of providing Professional Services that are authorized or pre-approved by Customer in writing.
9.8 If you elect to purchase certain Services through a third-party agent (“Procurement Agent”), your obligation for payment to, and relationship with, such Procurement Agent is between you and the Procurement Agent. You will remain liable for the fees payable to Pearl for the Services as well as the other obligations set forth in this Agreement.
9.9 Except as expressly set forth in this Agreement or when required by law, all fees are non-cancellable and once paid are non-refundable, even in the case of unused subscription periods.
10.1 “Confidential Information” means non-public, proprietary, business, technical, security, legal, or financial information that is either marked or identified as Confidential Information or would reasonably be understood to be confidential, including information about products, processes, services, trade secrets, marketing and business plans, client lists, financial information, system architecture, security programs, and intellectual property. For avoidance of doubt, the price you pay for the Services constitutes Pearl’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) the receiving party possesses without a duty to keep confidential prior to acquiring it from the disclosing party; (b) is or becomes publicly available through no violation of this Agreement by the receiving party; (c) is given to the receiving party by a third-party not under a confidentiality obligation to the disclosing party; or (d) is developed by the receiving party independently of, and without reliance on, confidential or proprietary information provided by the disclosing party.
10.2 Each party may be given access to Confidential Information of the other party in connection with this Agreement. The receiving party may only use this Confidential Information as provided for in this Agreement or to exercise its rights hereunder and may only share this Confidential Information with its employees, agents, advisors and service providers who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use the same degree of care, but no less than a reasonable degree of care, as such party uses with respect to its own Confidential Information to protect the disclosing party’s Confidential Information and to prevent any unauthorized use or disclosure thereof. Neither party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third-party. If the receiving party is compelled by law to disclose the other party’s Confidential Information, it will use commercially reasonable efforts to give the disclosing party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
11. Data Security, privacy and your personal information
11.2 Pearl will use data provided in connection with the creation or administration of entity and User accounts solely to set up and maintain such accounts, to inform entities and Users about features of the Services, to provide and maintain the Services, and as necessary to comply with applicable law, regulation, legal process or enforceable governmental requests and to detect and prevent fraud and or violations of this Agreement.
11.3 Pearl will maintain appropriate administrative, physical, technical and organizational measures to protect the security, confidentiality, and integrity of your Content in accordance with our information security program. Any revisions to our information security program will not diminish our current data security obligations.
11.4 If an enterprise customer is subject to the General Data Protection Regulation, any similar or successor laws or regulations in Europe, or the California Consumer Privacy Act, Pearl’s Data Processing Addendum (“DPA”) applies to the processing of any Customer Personal Data (as defined in Section 1 of the DPA).
11.5 Pearl may utilize subcontractors or SaaS tools in connection with Pearl’s provision of the Services, including processing Content, provided that such third parties are subject to appropriate confidentiality and data security obligations.
12. Other Features of the Services
12.1 The Services facilitate the sharing of information within your organization and potentially outside of your organization. You agree that you are solely responsible for the Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which Pearl may suffer). You must ensure that you have all the rights and permissions needed to use that Content in connection with the Services.
12.2 If you receive any Service free of charge, such Services are made available “AS-IS” without any representations, warranties, support, maintenance or other obligation of any kind. Pearl may terminate your access to, or use of, a free Service at any time.
12.3 Pearl may make new features of the Subscription Service available to your account or certain Users. Notwithstanding any other provision herein, Services released as beta, pilot, limited release, non-production or evaluation (“Beta Features”) are made available to Customer “AS-IS” without any warranty, support, maintenance or other obligation of any kind. Pearl may terminate access to, or use of, a Beta Feature at any time.
13. Pearl Intellectual Property and Proprietary Rights
13.1 As between the parties, Pearl owns all right, title, and interest in and to the Pearl Assets and Pearl Confidential Information, including all intellectual property and proprietary rights therein. Except as expressly set forth herein, Pearl does not convey any rights to you or any User. “Pearl Assets” means (i) the Services, Deliverables and all materials, ideas, and items that are conceived, made, discovered, written, or created by Pearl’s personnel in connection with providing the same (but not any Content or your Confidential Information contained therein); (ii) all Pearl technology, software, data, methodologies, changes, improvements, components and documentation used to provide the Services or made available in connection herewith, and all intellectual property, proprietary rights and underlying source code and object code in and to the foregoing; and (iii) all other intellectual property owned by Pearl and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how.
13.2 You or a User may provide feedback or suggestions about the features, functions, or operation of the Services (“Feedback”). Pearl may freely use and exploit the Feedback (without any obligations or restrictions). You and the Users are not required to provide Feedback and Pearl is not required to use or incorporate Feedback into any of its products or Services.
13.3 Pearl owns all rights to the Statistical Data. Pearl may use the Statistical Data for its own business purposes (such as improving, testing, and maintaining the Subscription Service and developing additional products and services), and from time to time, provided that it does not reveal the identity, directly or indirectly, of any User or entity, may publish Feedback and aggregated Statistical Data. “Statistical Data” means statistical data generated or related to the provision, operation or use of the Subscription Service, including measurement and usage statistics, configurations, survey responses, and performance results.
13.4 Nothing in the Terms gives you a right to use any of Pearl’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
14.1. Unless otherwise specified in an Order, Pearl may identify you as a customer, and may use your name, corresponding trademark or logo, on our website or in our customer list, blogs, and other marketing materials or public communications subject to your published brand guidelines. To request removal of this identification, please notify us in writing at email@example.com, or Pearl’s address found in Section 19 below.
15. Ending your relationship with Pearl
15.1 The Terms will apply until all accounts under your control are closed unless superseded by written agreement between you and Pearl.
15.2 If you want to terminate your subscription and close your account, you may do so by (a) notifying Pearl at firstname.lastname@example.org or (b) cancelling your subscription in the Accounts Settings page and then closing your account, if this option is available to you.
15.3 Either party may terminate the Services if: (a) the other party is in material breach of this Agreement (or has acted in a manner which clearly shows that the party does not intend to, or is unable to comply with, the provisions of the Terms) and fails to cure such breach within 10 days following receipt of written notice from the non-breaching party, except that termination will take effect on notice in the event of a breach of Section 4.5; (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 60 days; or (c) it is required to do so by law.
15.4 In addition, Pearl may terminate your subscription and/or close your account, for any or no reason, by giving you 30 days’ written notice to your email address on file and providing a pro rata refund for any prepaid, unused subscription fees for the Services.
15.5 Pearl reserves the right to suspend access to the subscription Service if (a) you have undisputed amounts more than 10 days past due; (b) Pearl reasonably determines that you or any Users on your account are in breach of this Agreement; or (c) Pearl reasonably determines that you or any Users on your account are using the Subscription Service in a way that creates a security vulnerability, may disrupt others’ use of the Subscription Service, or have misappropriated or infringed Pearl’s or another third-party’s intellectual property or proprietary rights. Pearl will only suspend access to the extent, and for the duration, necessary to address the violation and will promptly restore access once the issue has been resolved. Pearl will not suspend access if Customer is (reasonably and in good faith) disputing a charge and cooperating in resolving the dispute. You acknowledge and agree that if Pearl disables access to your account, you may be prevented from accessing the Services, your account details, or any files or other Content contained in your account.
15.6 Upon termination of the Services, (a) Pearl will disable your account and each User’s access to the paid Services; (b) you will pay any accrued but unpaid fees prior to the effective date of termination; (c) each party will return and make no further use of, or destroy, any Confidential Information belonging to the other party, subject to (d); and (d) Pearl will delete all Content in accordance with its automated deletion schedule and back-up policy. Notwithstanding the foregoing, if Users maintain free accounts after cancellation of a paid account, information and Content in those free accounts will not be deleted until such accounts are permanently deleted and the free accounts will remain subject to this Agreement. When this Agreement end, all legal rights, obligations and liabilities that you and Pearl have benefited from, been subject to, have accrued, or which must survive in order to give proper effect to their intent, shall be unaffected by this cessation, and the provisions of Section 17 shall continue to apply to such rights, obligations and liabilities indefinitely.
15.7 If your paid account is downgraded or canceled for any reason, your information and Content may be deleted after 30 days. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
15.8 A Site Visitor may terminate its use of the Websites at any time by ceasing further use of the Website. Pearl may terminate your use of the Websites and deny you access to the Websites in our sole discretion for any reason or no reason, including for violation of this Agreement.
16. Exclusion of Warranties
16.1 Nothing in this Agreement, including Sections 16 and 17, shall exclude or limit Pearl’s warranty obligations or liability for losses which may not be lawfully excluded or limited by applicable law. Only the limitations which are lawful in your jurisdiction will apply to you and Pearl’s liability will be limited to the maximum extent permitted by law.
16.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Pearl MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND REGARDING ANY NON-Pearl APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE. Pearl DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, BE ERROR-FREE, BE SECURE, OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME, OR THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED.
17. Limitation of Liability
17.1 TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (REGARDLESS OF THE BASIS OR TYPE OF CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR ANY LOST PROFITS, REVENUES OR DATA, BUSINESS INTERRUPTION, DEPLETION OF GOODWILL, COVER, OR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. EACH PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAID OR PAYABLE BY YOU HEREUNDER WITHIN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OR (B) $200.00.
17.2 Pearl will not be liable for any loss or damage which may be incurred by you as a result of (i) any changes which Pearl may make to the Services or any features within the Services; (ii) your failure to keep your password or account details secure and confidential; or (iii) your failure to back up your Content.
17.3 Pearl, its affiliates and its sponsors are neither responsible nor liable for any direct, indirect, incidental, consequential, special, exemplary, punitive or other damages arising out of or relating in any way to your use of the Service. Your sole remedy for dissatisfaction with the Service is to stop using the Service.
17.4 The parties acknowledge and agree that the limitations of liability, disclaimer of warranties, and any exclusion of damages included herein represent an allocation of risk between the parties (including the risk that a remedy may fail of its essential purpose) which is reflected by the fees paid.
18. Changes to the Terms
18.1 Pearl may make changes to the Terms from time to time. When these changes are made, Pearl will make a new copy of the Terms available at https://www.tutorwithpearl.com/terms.
18.2 You understand and agree that if you are on a free account and you use the Services after the date on which the Terms have changed, Pearl will treat your continued use of the Services as acceptance of the updated Terms. If you have a paid account, the new Terms will apply upon your renewal.
19. General legal terms
19.1 Unless otherwise specified in an Order, the Services are provided by, and you are contracting with, Trilogy Mentors Inc., and references to “Pearl”, “we”, “us”, and “our” are references to Trilogy Mentors Inc., located at 1717 E Cary St, Richmond, VA 23223, United States. This Agreement, and your relationship with Pearl under the Terms, shall be governed by the laws of the State of Virginia without regard to its conflict or choice of laws rules.
19.2 The parties agree that most disputes can be resolved without resort to litigation. If you have any dispute with us, you agree that before taking any formal action you will contact us at email@example.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account). Except for the Excluded Disputes (defined below), the parties agree to use their best efforts to settle any dispute directly through consultation with each other, and good faith negotiations shall be a condition to either party initiating an arbitration (the “Cooperative Resolution Process”). If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time the Cooperative Resolution Process is initiated, then either party may initiate binding arbitration as the sole means to resolve any dispute subject to the terms set forth below.
19.3 Any dispute, controversy, or claim relating to, connected with, or arising out of the subject matter of this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), shall be determined by arbitration in Richmond, Virginia before one arbitrator. Judgment on an award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any demand for arbitration under this Agreement shall be made before the statute of limitations applicable to such claim has expired. In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages.
19.4 The parties agree that an arbitrator shall not have authority to conduct class arbitration of any Dispute. You and Pearl each agree that any arbitration or court action to resolve any Dispute will take place on an individual basis without resort to any form of class, consolidated, or representative action (the “Class Action Waiver”). YOU UNDERSTAND AND AGREE THAT THE CLASS ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION FOR ANY DISPUTE, INCLUDING CONSUMER DISPUTES AND BUSINESS DISPUTES. If any court or arbitrator determines that the Class Action Waiver is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate Disputes.
19.5 The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision or of any other right or provision. To the extent the arbitration provisions herein are void or unenforceable, and for all Excluded Disputes, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, Richmond, Virginia, or the Commonwealth of Virginia to resolve any Dispute. Any legal or arbitration proceeding will be in the English language.
19.6 Notwithstanding the parties’ decision to resolve all Disputes through arbitration, the following Disputes may be brought in any court of competent jurisdiction: (a) disputes relating to or arising from misappropriation, infringement, validity and/or enforceability of a party’s intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights), (b) any action by a party seeking entry of a temporary restraining order, preliminary injunctive relief, or permanent injunctive relief, or (c) any claims that, as a matter of law, the parties cannot agree to arbitrate (collectively, the “Excluded Disputes”).
19.7 This Agreement constitute the whole legal agreement between you and Pearl related to the use of the Services and supersede all prior or contemporaneous representations, agreements or understandings (written or verbal) relating to the subject matter hereof. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void and of no effect. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
19.8 You agree that Pearl may provide you notices by email, regular mail, or postings on the Services. You may provide notice to Pearl by emailing firstname.lastname@example.org.
19.9 Each party acknowledges that any breach, threatened or actual, of Sections 5.1, 10 and 13 may cause irreparable injury to the other party for which there may not be an adequate remedy at law. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it, without the requirement of posting a bond.
19.10 The parties are independent contractors. This Agreement does not create or imply any agency, partnership, or franchise relationship. This Agreement is intended for the benefit of the parties and not any third-party. Neither party has the authority to assume or create any obligation on behalf of the other party.
19.11 Neither party is liable for delay or default hereunder if caused by conditions beyond its reasonable control, including natural disasters, acts of God, hacker attacks, acts of terror or war, riots, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures.
19.12 Neither the rights nor the obligations arising under this Agreement are assignable or transferable by either party without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, and any attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, Pearl may assign this agreement (including all Orders) without the consent of the other party to a successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets in aggregate or related to your Services. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
19.13 Where Pearl has provided you with a translation of the English language version of the Terms, you agree that the translation is provided for your convenience only and that the English language version of the Terms will govern your relationship with Pearl. If there is any contradiction between the English language version of the Terms and a translation, the English language version shall take precedence.
19.14 The failure of Pearl to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. The Terms constitute the entire agreement between you and Pearl and govern your use of the Service, superseding any prior agreements between you and Pearl (including, but not limited to, any prior versions of the Terms of Service).