Update 23 December 2019
This User Agreement (this “Agreement”) is a contract between you (“you” or “User”), “I3 TECHNOLOGY Ltd.” (“EduBirdie,” “we” or “us”) and our affiliates to the extent expressly stated. You must read, agree to, and accept all of the terms and conditions contained in this Agreement to be a User of our website located at https://edubirdie.com (the “Site”) or any part of the rest of the Site (defined in the Site Terms of Service) or the Site Services (defined in the Site Terms of Service ).
Subject to the conditions set forth herein, EduBirdie may, in its sole discretion, amend this Agreement and the other Terms of Service at any time by posting a revised version on the Site. Any revisions to the Terms of Service will take effect on the noted effective date.
YOU UNDERSTAND THAT BY USING THE SITE OR SITE SERVICES AFTER THE EFFECTIVE DATE, YOU AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE IN ITS ENTIRETY, YOU MUST NOT ACCESS OR USE THE SITE OR THE SITE SERVICES AFTER THE EFFECTIVE DATE EXCEPT AS PERMITTED BY THE SITE TERMS OF SERVICE.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION CLAUSE BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND EDUBIRDIE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
1. EDUBIRDIE ACCOUNTS
1.1 REGISTRATION AND ACCEPTANCE
By registering for an account to use the Site or Site Services (an “Account”), by using the Site or Site Services after the Effective Date if you had an Account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service.
To access and use certain portions of the Site and the Site Services, you must register for an Account. Subject to the Site Terms of Service, certain portions of the Site are available to Site Visitors, including those portions before your Account registration is accepted. EduBirdie reserves the right to decline a registration to join EduBirdie, for any lawful reason.
1.2 ACCOUNT ELIGIBILITY
EduBirdie offers the Site and Site Services for your educational, personal, non-commercial purposes only and not for business use. To register for an Account or use the Site and Site Services, you must, and hereby represent that you (a) are an individual 18 years or older who can form legally binding contracts; (b) are legally qualified to enter a binding contract with us; (c) are not prohibited by law from using Site Services; (d) you do not have more than one Account on Site Services; (e) you have not previously been removed from Site Services by us, unless you have our express written permission to create a new Account.
1.3 ACCOUNT PROFILE
To register for an Account to join the Site, you must complete a User profile (“Profile”), which will not be shown to other Users and the public. Your Account might be publicly displayed only where you provide testimonials regarding the use of Site Services. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms (if any) you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, and to correct any such information that is or becomes false or misleading.
1.4 ACCOUNT PERMISSIONS
You agree not to request or allow another person to create an Account on your behalf, for your use, or for your benefit. You may not have more than one account on Site Services. Upon closure of an Account, EduBirdie may close any or all related Accounts.
1.5 IDENTITY AND LOCATION VERIFICATION
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, inter alia. You authorize EduBirdie, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself which includes, but is not limited to, providing official government or legal documents.
1.6 USERNAMES AND PASSWORDS
When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share your username or password with any person. You authorize EduBirdie to assume that any Site usage with your username and password, is performed by you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to the password for your Account. You further agree not to use the Account or log in with the username and password of another User of the Site.
2. PURPOSE OF EDUBIRDIE
The Site is a marketplace where Users can get use of Site Services. Subject to the Terms of Service, EduBirdie provides the Site Services to Users, including hosting and maintaining the Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those Service Contracts. When a User enters a Service Contract, the User uses the Site to invoice and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH EDUBIRDIE
Edubirdie is a platform (or marketplace) where Writers can offer writing services to Users seeking writing services. Writing services may include copy-editing. Copy-editing of your text includes checking the grammar (correction of all grammatical errors), spelling (correction of all spelling errors), punctuation (correction of all punctuation errors), consistency (imposing a consistent style) and textual structure (ensuring that the structure is well organized). Writing services may also include development (any writing apart from ensuring consistent structure), rewriting or critique or evaluation of the text. Users must always cite the Writer who performed the writing services. All Users must acknowledge and agree that they understand that Edubirdie is not and will never be a party to any agreements for writing services between Users and Writers. EduBirdie does not introduce Users to Writers, and vice versa. Through the Site and Site Services, Writers may be notified of Users that may be seeking the services they offer, and Users may be notified of Writers that may offer the services they seek; at all times, however, Users are responsible for evaluating and determining the suitability of any Project and Writer on their own.
YOU ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT EDUBIRDIE IS NOT A PARTY TO THE RELATIONSHIP OR ANY DEALINGS BETWEEN USERS AND WRITERS. Without limitation, Users are solely responsible for (a) ensuring the accuracy and legality of any User content, (b) determining the suitability of Writers for a Service Contract (such as any interviews, vetting, background checks, or similar actions), (c) negotiating, agreeing to, and executing any terms or conditions of Service Contracts, (d) paying for Service Contracts or Writer Services. You further acknowledge, agree, and understand that you are solely responsible for assessing whether to enter into a Service Contract with any Writer and for verifying any information about such Writer except of information attributed to order requirements (such as the Writers rankings made based on Users feedback, amount of finished papers etc.). EduBirdie does not make any representations about or guarantee the truth or accuracy of any User’s or Writer’s listings on the Site; does not verify any feedback or information provided by Users about Writers; and does not vet or otherwise perform background checks on Users or Writers except as those directly provided for hereby. YOU ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT EDUBIRDIE DOES NOT, IN ANY WAY, SUPERVISE, DIRECT, CONTROL, OR EVALUATE WRITERS OR THEIR WORK ITSELF AND RELIES SOLELY ON USERS TESTIMONIALS WHEN MAKING THE WRITERS RANKINGS OR LISTING THEM OTHERWISE, AND IS NOT RESPONSIBLE FOR ANY PROJECT, PROJECT TERMS OR WORK PRODUCT.
EduBirdie makes no representations about and does not guarantee, and you agree not to hold EduBirdie responsible for, the quality, safety, or legality of Writer Services; the qualifications, background, or identities of Users and Writers; the ability of Writrs to deliver Writer Services; the ability of Users to pay for Writer Services; User and Writer Content, statements or posts made by Users and Writers; or the ability or willingness of a User or Writer to actually complete a transaction.
You also acknowledge, agree, and understand that Writers are solely responsible for determining, and have the sole right to determine, which Projects to accept; the time, place, manner, and means of providing any Writer Services; the type of services they provide; and the price they charge for their services or how that pricing is determined or set. You further acknowledge, agree, and understand that: (i) you are not an employee of EduBirdie, and you are not eligible for any of the rights or benefits of employment (including unemployment and/or workers compensation insurance); (ii) EduBirdie will not have any liability or obligations under or related to Service Contracts and/or Writer Services for any acts or omissions by you or other Users; (iii) EduBirdie does not, in any way, supervise, direct, or control any Writer or Writer Services; does not impose quality standards or a deadline for completion of any Writer Services; and does not dictate the performance, methods or process Writer uses to perform services; (iv) Writer is free to determine when and if to perform Writer Services, including the days worked and time periods of work, and EduBirdie does not set or have any control over Writer’s pricing, work hours, work schedules, or work location, nor is EduBirdie involved in any other way in determining the nature and amount of any compensation that may be charged by or paid to Writer for a Project; (v) Writer will be paid at such times and amounts as agreed with a Buyer in a given Service Contract, and EduBirdie does not, in any way, provide or guarantee Writer a regular salary or any minimum, regular payment; (vi) EduBirdie does not provide Writers with training or any equipment, labor, tools, or materials related to any Service Contract; and (vii) EduBirdie does not provide the premises at which Writers will perform the work. Writers are free to use subcontractors or employees to perform Writer Services, in particular, may delegate work on fixed-price contracts or to have hourly contracts for Writer’s subcontractor(s) or employee(s), if such delegation of work is agreed by the Users they are contracted by. If a Writer uses subcontractors or employees, Writer further agrees and acknowledges that this paragraph applies to EduBirdie’s relationship, if any, with Writer’s subcontractors and employees as well and Writer is solely responsible for Writer’s subcontractors and employees.
2.2 TAXES AND BENEFITS
Writer acknowledges and agrees that the Writer is solely responsible (a) for all tax liability associated with payments received by Writer from Users and through EduBirdie, and that EduBirdie will not withhold any taxes from payments to Writer or act in capacity of Writer’s tax agent in any case; (b) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that Writer is not covered by or eligible for any insurance from EduBirdie; (c) for determining whether Writer is required by applicable law to issue any particular invoices for the Writer Fees and for issuing any invoices so required; (d) for determining whether Writer is required by applicable law to remit to the appropriate authorities any value added tax or any other taxes or similar charges applicable to the Writer Fees and remitting any such taxes or charges to the appropriate authorities, as appropriate; and (e) if outside of the United States, for determining if EduBirdie is required by applicable law to withhold any amount of the Writer Fees and for notifying EduBirdie of any such requirement and indemnifying EduBirdie for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of EduBirdie, Writer agrees to promptly cooperate with EduBirdie and provide copies of Writer’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Writer is engaging in an independent business as represented to EduBirdie.
2.3 USER CONTENT
EduBirdie does not generally investigate any remarks posted by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. The Writers rankings made based on Users feedback are produced by our system automatically without analyzing the substance of testimonials. You are solely responsible for your User Content, including the accuracy thereof, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content if such User Content is legally actionable or defamatory. EduBirdie is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, EduBirdie reserves the right (but is under no obligation) to remove posted feedback or information that, in EduBirdie’s sole judgment, violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of EduBirdie. You acknowledge and agree that you will notify EduBirdie of any error or inaccurate statement in your feedback results and that if you do not do so, EduBirdie may rely on the accuracy of such information.
3. USER RELATIONSHIPS
3.1 SERVICE CONTRACTS
If a User and Writer decide to enter into a Service Contract, the Service Contract is a contractual relationship directly between the User and Writer. User and Writer have complete discretion both with regard to whether to enter into a Service Contract with each other and with regard to the terms of any Service Contract. YOU ACKNOWLEDGE, AGREE, AND UNDERSTAND THAT EDUBIRDIE IS NOT A PARTY TO ANY SERVICE CONTRACT, THAT THE FORMATION OF A SERVICE CONTRACT BETWEEN USERS AND WRITERS WILL NOT, UNDER ANY CIRCUMSTANCE, CREATE AN EMPLOYMENT OR OTHER SERVICE RELATIONSHIP BETWEEN EDUBIRDIE AND ANY WRITER OR A PARTNERSHIP OR JOINT VENTURE BETWEEN EDUBIRDIE AND ANY USER.
With respect to any Service Contract, Users and Writers may enter into any written agreements that they deem appropriate provided that any such agreements do not conflict with, narrow, or expand EduBirdie’s rights and obligations under the Terms of Service, including this Agreement.
3.2 DISPUTES AMONG USERS AND WRITERS
For disputes arising between Users and Writers, you agree to abide by the dispute process of EduBirdie. If the dispute process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge, agree and understand that EduBirdie will not and is not obligated to provide any dispute assistance.
4. EDUBIRDIE FEES
Writers pay EduBirdie a Service Fee for the use of the Site. EduBirdie charges service fees to Sellers for using the Site’s communication services. The Service Fees (to use the Site and Site Services) are paid solely by Writer. When a User pays a Writer for a Project, EduBirdie will credit the Writer Account for the full amount paid and then subtract and disburse to EduBirdie the Service Fee. WRITER HEREBY IRREVOCABLY AUTHORIZES AND INSTRUCTS EDUBIRDIE TO DEDUCT THE SERVICE FEE FROM THE WRITER ACCOUNT AND PAY EDUBIRDIE ON WRITER’S BEHALF.
5. PAYMENT TERMS
If User is in “default”, meaning the User fails to pay the Writer Fees or any other amounts when due under the Terms of Service, EduBirdie will be entitled to the remedies described in this agreement and in addition to such other remedies that may be available under applicable law or in such written agreement.
If User is in default, EduBirdie may, without notice, temporarily or permanently close User’s Account and revoke User’s access to the Site and Site Services, including User’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Services (if applicable) through the Site. However, User will remain responsible for any amounts that accrue on any open Projects at the time limitation is put on the User’s Account as a result of the default. Without limiting other available remedies, User must pay EduBirdie upon demand for any amounts owed, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
5.2 PAYMENT METHODS
In order to use certain Site Services, User must provide account information for at least one valid Payment Method.
By providing Payment Method information through the Site and authorizing payments with the Payment Method, User represents, warrants, and covenants that: (a) User is legally authorized to provide such information; (b) User is legally authorized to make payments using the Payment Method(s). When User authorizes a payment using a Payment Method via the Site, User represents and warrants that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement or the other Terms of Service cannot be collected from User’s Payment Method(s), User is solely responsible for paying such amounts by other means.
Because the use of any Payment Method may be limited by applicable law or by written agreement with your financial institution, EduBirdie is not liable to any User or Writer if EduBirdie does not complete a transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method.
5.3 PAYMENT PROCESS
Placing an order on the Site for any job/project is free. However, you must deposit funds after you accept the bid of a Writer. You can also add money to your store balance any time to use this money for new orders. You shall release the agreed fee on completion and delivery of the Writer Services by the Writer and once the outcome of Writer Services is accepted by you; either in installments or in one lump sum on completion of the Service Contract, based on the terms thereof. After the final outcome of Writer Services was uploaded (100% completion is stated in your order) you have 3 days to send us any complaints or revision requests. We send you additional email after 3 days have passed to remind about the payment for the Writer Services performed under Service Contract.
If there are no complaints sent by you using any of the available methods of contact, the money will be released to the writer automatically on the 4th day after the termination of Service Contract. Please, review your order carefully before releasing the full amount of money reserved for the Service Contract. Once the entire agreed sum is received by the Writer, it is deemed that the outcome of Writer Services is complete and is to your satisfaction; therefore, no refund will be possible.
If you do not plan to use Site Services further, we will be allowed to withdraw the money after sending an appropriate request. We ensure fund withdrawal from the User’s account upon request, if such a request is made within a year from the last order date. If you use money from your balance after the request was sent to us, we reserve the right to reject your request and close the ticket. If you have previously cancelled the order and money was returned to your balance, we reserve the right to investigate the reason of cancellation and make a decision to either approve or decline your withdrawal request based on the results of this investigation. If money on your balance has never been used before, we will refund it within 3-10 business days after the request is placed.
Money shall be stored in your personal account for six months following delivery of the last order. User keeps his right to make request regarding the return of unused money to us within six months from the moment of receiving the last order. After expiration of six months, unused money shall be transferred to us on account of paying for operating charges.
A chargeback (being a challenge to a payment that a User files with their card issuer or financial institution), and any subsequent reversal instruction, is made by the payment product issuer or third parties (such as payment processors) and not by us. We are bound to follow such instructions.
You acknowledge and agree that we will be entitled to recover any chargebacks and reversals that may be imposed on us by a payment product issuer or third parties (such as payment processors) on funds paid to you by Writers through the Site, as well as any processing or any other fees whatsoever incurred by us on those chargebacks and reversals.
You agree that we may reverse any such payments made to you, which are subject to chargeback or reversal instruction via your payment product issuer or third parties (such as payment processors). If you initiate any chargeback request or other “Request for Information” or similar process, you expressly agree and consent to us to share any and all information in relation to your agreement of these terms and conditions, in order to defeat any such chargeback request.
5.4 MONEY BACK GUARANTEE
We are authorized to act on behalf of the Writers to assess refund requests on a case-by-case basis as there are usually unique reasons why a refund request is made. Please note, we may require documented proof that the quality of the Writer Services is low (e.g., scanned copy of your instructor’s feedback, plagiarism report, etc.). Should you feel it necessary to make a refund request, we will immediately send your order to “Under investigation” and forward it to our Quality Assurance Department (QA). After comparing their findings with the reasons for dissatisfaction, the necessary corrective actions will be taken. In case the money is reimbursed because of mistakes or some irrelevance to the initial instructions, our QA Department, at its sole discretion, evaluates the quality of the Writer Services and refunds an amount comparable to the percentage of incorrect content in the delivered texts and mistakes present therein.
We provide various methods of contact (i.e. email, telephone, message board, and live chat) to facilitate communication between you, us, and the Writer performing Writer Services. Our Customer Support Center is available to you at any time via any of these methods and will respond to any refund request or other issue promptly. However, if such a request is not received using any of the aforementioned methods within the Refund Period, we will not be obliged to honor or consider the above mentioned request.
Refund Period begins on the date of the Service Contract termination and expires on the last day of the Refund Period.
The period of 3 business days is offered to request a refund in case you were dissatisfied with the Writer Services outcome (”Refund Period”).
In case you are not satisfied with Writer Services, you can submit a refund request according to these Terms within the Refund Period. Once the Refund Period elapses, we will not refund any amounts paid.
1. 100% of the Payment is subject to Refund in the Following Cases:
1.1. You have made an order for Writer Services but did not enter into Service Contract with a particular Writer. You can cancel your order and get a full refund any time before a Writer enters the Service Contract or within 15 minutes after the order is created;
1.2. In case you accidentally pay twice for the same order for Writer Services, we will refund you the second payment after your confirmation*
* If you place two identical orders for Writer Services and pay for both of them, we will assume that you need both orders to be completed and start working on them. Therefore, if any of the orders is paid by mistake, please, make sure you contact us immediately to clarify the situation. Of course, you can cancel any order that you do not need before a Writer enters into Service Contract or within 15 minutes after the order is created;
1.3. If for any other reason the outcome of Writer Services is sent to you after the termination of Service Contract and you do not need it anymore, you can request a full refund (unless the late outcome of Writer Services was downloaded by you). However, in such cases, you cannot use the outcome of Writer Services as it fully belongs to us. We can decide to utilize it at our own discretion and we also reserve the right to publish it online as a sample of the Writers work;
1.4. The research did not align with the initial ** instructions indicated in the Order Form at all (this is a subject to inspect by a Quality Assurance Department specialist and includes cases like off-topic outcomes of Writer Services and outcomes of Writer Services that cannot be used at all);
** Instructions that were listed by you while placing the order before the Writer partly uploaded an outcome of Writer Services or started working on the order.
1.5. The level of plagiarism exceeded 10% as indicated in the plagiarism report provided by Turnitin or any other reliable plagiarism check system. In this case, the money will be returned if there are funds in the account of the Writer.
2. The Payment is Refunded Partly in the Following Cases:
2.1. Up to 70% – if you cancel the order when the Service Contract has been entered by you and the Writer before the termination of the Service Contract when less than half of the term of the Service Contract has passed***;
2.2. Up to 50% – if you cancel the order when the Service Contract has been entered by you and the Writer before the termination of the Service Contract when more than half of the term of the Service Contract has passed***;
*** A Writer has already spent a significant amount of time working on your order and must be compensated.
2.3. Up to 70% – if the outcome of Writer Services is late (delivered after the termination of the Service Contract), but you still have time and would like to use it, we will recalculate the price of Writer Services with a view to the nearest deadline option (i.e. the Service Contract shall be considered extended). The difference in price will be refunded to you.
2.4. Up to 70% if the quality of the outcome of Writer Services is not satisfactory (depends on the amount of mistakes made by the Writer).
2.5. Up to 70% if the instructions were not followed fully but some parts of the outcome of Writer Services are still usable.
2.6. Up to 70% if the outcome of Writer Services was delivered after the termination of the Service Contract, but it was downloaded by You.
2.7. Partially refundable VAS – Writer Quality, 1-page Abstract, Progressive Delivery, Essay Outline.
3. No Refund is Possible in the Following Cases:
3.1. If you accept the outcome of Writer Services by releasing money to the Writer;
3.2. In case of timely delivery of the outcome of Writer Services, neither EduBirdie nor Writer will be responsible for failure of the User to download the outcome of Writer Services.
3.3. If you received a low mark (score) as the Writer Services are provided only for your reference;
3.4. If you complain about plagiarism but do not provide us with a valid proof of it (Turnitin report);
3.5. If you simply state that you are not satisfied with the outcome of Writer Services and do not provide a detailed reason for your dissatisfaction;
3.6. If the outcome of Writer Services is late (delivered after the termination of the Service Contract) because you did not provide some required information or materials on time or we could not reach you via contacts provided, then you cannot claim a refund based on lateness. Please, be advised that it is very important to provide valid contact information, including your email address and phone number, so that we could reach you when emergencies occur;
3.7. Non-refundable VAS – VIP Support, Assign the Writer of your Choice, Assign the Writer of Our Choice, 1-page Abstract*, Progressive Delivery*, Essay Outline*;
*- these services can be refunded only in case they were not provided at all by the Writer;
3.8. Such type of paper as Math Problem and other projects requiring calculations or solving Multiple Choice Questions are not subjected to refund as using answers provided by the Writer automatically means their approval by you. However, in case there are less than 50% of correct answers to Multiple choice questions, you will need to send us a proof of the score and can be qualified for a partial refund, the amount of which is decided by Our QA team separately in each case.
6. RECORDS OF COMPLIANCE
Users and Writers will each (a) create and maintain records to document satisfaction of their respective obligations under this Agreement, including, without limitation, their respective payment obligations and compliance with tax and employment laws, and (b) provide copies of such records to EduBirdie upon request. Nothing in this subsection requires or will be construed as requiring EduBirdie to supervise or monitor any User’s or Writer’s compliance with this Agreement, the other Terms of Service, or a Service Contract. You are solely responsible for the creation, storage, and backup of your business records. This Agreement and any registration for or subsequent use of the Site will not be construed as creating any responsibility on EduBirdie’s part to store, backup, retain, or grant access to any information or data for any period.
7. WARRANTY DISCLAIMER
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EDUBIRDIE MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT OR THE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EDUBIRDIE DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EDUBIRDIE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL EDUBIRDIE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EDUBIRDIE ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL EDUBIRDIE, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN EXCESS OF THE AMOUNT THAT YOU HAVE ACTUALLY PAID FOR THE SERVICES IN THE PAST TWELVE MONTHS, OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EDUBIRDIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
In addition to the recognition that EduBirdie is not a party to any contract between Users and Writers, you hereby release EduBirdie, our Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User or Writer, whether it be in law or in equity that exist as of the time you enter into this agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Writer Services provided to User by a Writer and requests for refunds based upon disputes.
You will indemnify, defend, and hold harmless EduBirdie, our Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims and Indemnified Liabilities relating to or arising out of: (a) your use of the Site and the Site Services, including any payment obligations or default incurred through use of the Site Services; (b) any Service Contract you enter into, including, but not limited to, the classification of a Writer as an independent contractor; the classification of EduBirdie as an employer or joint employer of Writer; any employment-related claims, such as those relating to employment termination, employment discrimination, harassment, or retaliation; and any claims for unpaid wages or other compensation, overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker’s compensation benefits, unemployment benefits, or any other employee benefits; (c) your failure to comply with the Terms of Service or the terms of relevant Service Contract; (d) your failure to comply with applicable law; (e) your negligence, willful misconduct, or fraud; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or allegations thereof to the extent caused by you.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User or Writer against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User or Writer.
11. AGREEMENT TERM AND TERMINATION
Unless both you and EduBirdie expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to us. In the event you properly terminate this Agreement, your right to use the Site and Site Services is automatically revoked, and your Account will be closed. EduBirdie is not a party to any Service Contract between Users and Writers. Consequently, the User understands and acknowledges that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users and Writers. If you attempt to terminate this Agreement while having one or more open Projects, you agree that (a) you hereby instruct EduBirdie to close any open contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such Projects have closed on the Site; (c) EduBirdie will continue to perform those Site Services necessary to complete any open Project or related transaction between you and the Writer; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to EduBirdie for any Site Services or such other amounts owed under the Terms of Service and to any Writers for any Writer Services.
Without limiting EduBirdie’s other rights or remedies, we may, but are not obligated to, temporarily or indefinitely revoke access to the Site or Site Services, deny your registration, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or any other provisions of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, otherUsers and Writers, or EduBirdie or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity. If your Account is temporarily or permanently closed, you may not use the Site under the same Account, a different Account, or register under a new Account without EduBirdie’s prior written consent.
You acknowledge, agree, and understand that the value, reputation, and goodwill of the Site depend on transparency of User’s Account status to all Users and Writers, including both yourself and those Writers who have entered into Service Contracts with you. You therefore agree as follows: IF EDUBIRDIE DECIDES TO TEMPORARILY OR PERMANENTLY CLOSE YOUR ACCOUNT, EDUBIRDIE HAS THE RIGHT WHERE ALLOWED BY LAW, BUT NOT THE OBLIGATION, TO: (A) NOTIFY THE WRITERS THAT HAVE ENTERED INTO SERVICE CONTRACTS WITH YOU TO INFORM THEM OF YOUR CLOSED ACCOUNT STATUS, (B) PROVIDE THOSE WRITERS WITH A SUMMARY OF THE REASONS FOR YOUR ACCOUNT CLOSURE. YOU AGREE THAT EDUBIRDIE WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY NOTICE THAT IT MAY PROVIDE TO ANY WRITER REGARDING CLOSED ACCOUNT STATUS OR THE REASON(S) FOR THE CLOSURE.
After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. Without limiting any other provisions of the Terms of Service, the termination of this Agreement for any reason will not release you or EduBirdie from any obligations incurred prior to termination of this Agreement or that thereafter may accrue in respect of any act or omission prior to such termination.
12. DISPUTES BETWEEN YOU AND EDUBIRDIE
12.1 ARBITRATION PROVISION
ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH TERMINATION OR INVALIDITY THEREOF, SHALL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE ELECTRONIC TRANSACTION ARBITRATION RULES OF THE HONG KONG INTERNATIONAL ARBITRATION CENTRE AS AT PRESENT IN FORCE AND AS MAY BE AMENDED BY THE REST OF THIS CLAUSE. THE APPOINTING AUTHORITY SHALL BE HONG KONG INTERNATIONAL ARBITRATION CENTRE. THE PLACE OF ARBITRATION WILL BE IN HONG KONG AT THE HONG KONG INTERNATIONAL ARBITRATION CENTRE (HKIAC). THE DISPUTE WILL BE HELD BEFORE A PANEL OF THREE (3) ARBITRATORS. YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. NEITHER YOU NOR WE WILL PARTICIPATE IN A CLASS ACTION OR CLASS-WIDE ARBITRATION FOR ANY CLAIMS COVERED BY THIS AGREEMENT TO ARBITRATE. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. ANY PROVISION OF APPLICABLE LAW NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE AUTHORITY TO AWARD DAMAGES, REMEDIES OR AWARDS THAT CONFLICT WITH THIS USER AGREEMENT.
12.2 CHOICE OF LAW
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relating to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the Cayman Islands, including its statutes of limitations. You acknowledge, understand, and accept that the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms.
12.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and EduBirdie agree to first notify each other of the Claim. You agree to notify EduBirdie of the Claim and EduBirdie agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and EduBirdie then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or EduBirdie, as applicable, may evaluate the Claim and attempt to informally resolve the Claim. Both you and EduBirdie will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim, which, if successful, will avoid the need for further action.
13.1 ENTIRE AGREEMENT
This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and EduBirdie relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. YOU REPRESENT THAT YOU HAD AMPLE TIME TO REVIEW AND DECIDE WHETHER TO AGREE TO THE TERMS OF SERVICE. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or EduBirdie because of the authorship of any provision of the Terms of Service.
User may not assign the Terms of Service, or any of its rights or obligations hereunder, without EduBirdie’s prior written consent signed by a duly authorized representative of EduBirdie. EduBirdie may freely assign this Agreement and the other Terms of Service without User’s consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service are binding upon, and will inure to the benefit of the successors, heirs, and permitted assigns of the parties.
Unless otherwise stated in this Agreement or the other Terms of Service, should any provision of this Agreements or the other Terms of Service be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of this Agreements or the other Terms of Service, and the application of that provision shall be enforced to the extent permitted by law. Any failure by Edubirdie to enforce this Agreements or the other Terms of Service or any provision thereof shall not waive Edubirdie’s right to do so.
13.4 FORCE MAJEURE
The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
13.5 THIRD PARTY WEBSITES
The Site may contain links to third party websites. The inclusion of any website link does not imply an approval, endorsement or recommendation by us. You agree that you access any such website at your own risk, and that such site is not governed by the terms and conditions contained in this Agreement or the other Terms of Service. We expressly disclaim any liability for these websites. Your browsing and interaction on any other website, including those that have a link on our website, is subject to that website’s own rules and policies.
EduBirdie makes no representations that the Site is appropriate or available for all jurisdictions. Those who access or use the Site from other jurisdictions are entirely responsible for compliance with all applicable foreign; United States federal; state, and local laws and regulations. You represent that you are not: (a) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor (b) located or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria). You also represent and covenant that you will not, directly or indirectly, use the proceeds from the use hereof (if applicable) to lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or in any other manner that will result in a violation of Sanctions by any person. You understand and agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Site and Site Services and your license to use the Site or Site Services will be immediately revoked.
13.7 PROHIBITED JURISDICTIONS
You represent that you are not a resident of the following States within the United States of America: New York; New Jersey; Massachusetts; California; Texas; Florida; Pennsylvania; Nevada; Colorado; Virginia; North Carolina; Washington; Illinois; Oregon; Maine; and, Maryland (the “Prohibited States”). Further, you represent that you are not a resident of the following countries: New Zealand and the Republic of Ireland (collectively with Prohibited States, the Prohibited Jurisdictions”). You acknowledge, understand, and agree that EduBirdie is within our rights to close your account if you use the Site and Site Services while being a resident of the Prohibited Jurisdictions.
Capitalized terms not defined below or above have the meanings described elsewhere in the Terms of Service.
“Fixed-Price Contract” means a Service Contract for which User is charged a fixed fee agreed between a User and a Writer, prior to the commencement of a Service Contract, for the completion of all Writer Services contracted by User for such Service Contract.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to EduBirdie, a bank account linked to your Account, a PayPal account, a debit card, or such other method of payment as EduBirdie may accept from time to time at our sole discretion.
“Project” means an engagement for Writer Services that a Writer provides to a User under a Service Contract on the Site.
“Service Contract” means the relationship between a User and a Writer governing the Writer Services to be performed by a Writer for User for a Project.
“Substantial Change” means a change to the terms of the Terms of Service that reduces your rights or increases your responsibilities.
“Work Product” or “Outcome of Writer Services” means any tangible or intangible results or deliverables that Writer agrees to create for, or actually delivers to, User as a result of performing the Writer Services, including, but not limited to, configurations, computer programs, or other information, or customized hardware, and any intellectual property developed in connection therewith.