Last Updated: May 25, 2020
Welcome to FSU, provided by FSU HK Limited and its parents, subsidiaries, representatives, and affiliates (collectively “FSU,” “we,” “us,” or “our”). FSU operates an online technology platform (the “FSU Platform”) through which minors in need of online English language instruction (“Students”) and their parents can connect with and receive classes from Teachers in the business of providing such services (“Teachers”).
1. Contractual Relationship
These Terms are an agreement between you and us, and set forth the terms and conditions that govern your access and use of the FSU website within the United States. Should you decide to sign-up to use the FSU Platform as a Teacher, you will need to execute a separate Independent Contractor Agreement with respect to your use of the FSU Platform as a Teacher.
The Terms form a legally binding agreement between you and us. Please take the time to read them carefully. You should print or save a local copy of the Terms for your records. By accessing or using the website, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you will not access or use the website.
IMPORTANT: PLEASE REVIEW THESE TERMS CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE ARBITRATION PROVISION IN SECTION 10 AS IT REQUIRES THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ACCEPTING THESE TERMS, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THESE TERMS, INCLUDING SECTION 10, AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF PROCEEDING TO ACCESS AND USE THE FSU WEBSITE.
3. Using the FSU Website
You are responsible for making all arrangements necessary for you to access the FSU website. If you have not obtained access to the website through authorized means, we cannot guarantee that it can be used normally, and we will not be liable for any subsequent losses.
In order to improve user experience, we may, on occasion, provide updates to the website and related domains and applications. We may include system prompts and in-application announcements to inform you of the software updates or available improvements. If you do not accept such updates or improvements, certain functions of the website and/or the FSU Platform may be restricted or may not function as intended. In order to fully realize the functions of the website and FSU Platform, your equipment may require network access. You understand that you will be required to bear the expenses associated with your equipment and network access.
You acknowledge and agree that your use of the FSU website is at your own risk. FSU provides, and you accept, use of the FSU website on an “AS IS” and “as available” basis, WITHOUT WARRANTY OF ANY KIND. Without limiting the foregoing, FSU hereby disclaims all warranties and conditions of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement. FSU makes no representations about the suitability, reliability, availability, timeliness, and accuracy of the information, products, and/or services available on or through the website for any purpose. FSU also makes no representations, warranties, or guarantees with respect to the actions or inactions of Students, and expressly disclaims all liability for any act or omission by you, Students, or other third-party.
As a condition of your access to and use of the FSU website, you agree not to violate any law, statute, rule, permit, ordinance, or regulation in connection with your use of the website. You further agree not to (i) decompile, reverse engineer, or disassemble the FSU website or FSU Platform; (ii) link to, mirror, or frame any portion of the FSU website or FSU Platform; (iii) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the FSU website or FSU Platform, or unduly burdening or hindering the operation and/or functionality of any aspect of same; or (iv) attempt to gain unauthorized access to or impair any aspect of the FSU website or FSU Platform or its related systems or networks.
4. Changes to the Terms & Website
We may amend these Terms from time to time, including, for instance, when we update the functionality of the website. We will use commercially reasonable efforts to generally notify you of any material changes to these Terms, such as through a notice on the website. However, you should review the Terms regularly to check for such changes. We will also update the “Last Updated” date at the top of these Terms, which reflect the effective date of such Terms. Your continued access to or use of the website after the date of the new Terms constitutes your acceptance of the new Terms. If you do not agree to the new Terms, you will stop accessing or using the FSU website.
We aim to update the website regularly, and may change the content at any time. If the need arises, we may suspend access to our site, or close it indefinitely. Any of the material on our site may be out of date at any given time, and we are under no obligation to update such material.
5. Your Account
It is important that you keep your account password confidential and that you do not disclose it to any third-party. If you know or suspect that a third-party knows your password or has accessed your account, please notify us at email@example.com. You agree that you are solely responsible (to us and to other users) for activity that occurs under your account.
6. Intellectual Property Rights & Content
We respect intellectual property rights and ask you to do the same. As a condition of your access to and use of the FSU website, you agree not to use the website to infringe any intellectual property rights.
As between you and us, all content, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music on and “look and feel” of the FSU website and FSU Platform, and all intellectual property rights related thereto (the “FSU Content”), are either owned or licensed by us. Use of the FSU Content or materials on the website for any purpose not expressly permitted by these Terms is strictly prohibited. Such content may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent. We and our licensors reserve all rights not expressly granted in and to their content.
Subject to these Terms, we grant you a non-exclusive, limited, non-transferable, non-sublicensable, revocable license to access and use the website, and to access the FSU Content through your use of the website, solely for your personal, noncommercial use, in accordance with these Terms, and applicable law, including any applicable intellectual property law. We reserve all rights not expressly granted herein in the website, the FSU Platform, and the FSU Content. You acknowledge and agree that we may terminate this license at any time for any reason or no reason. You further acknowledge and agree that (i) should you decide to sign-up to use the FSU Platform as a Teacher, you will need to enter into a separate Independent Contractor Agreement with FSU, and (ii) you will not be able to access the FSU Platform as a Teacher without a current and active Independent Contractor Agreement.
If you believe that your copyrighted work has been reproduced in a manner that constitutes copyright infringement and is accessible on the website or FSU Platform, please submit a notification to our copyright agent in accordance with the Digital Millennium Copyright Act, by providing the following information in writing: (A) Identification of the copyrighted work that allegedly has been infringed; (B) Identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the website or FSU Platform; (C) Information for our copyright agent to contact the party alleging infringement, such as an address, telephone number, and, if available, e-mail address; (D) A statement that the party alleging infringement has a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law; (E) A statement that the information in the notification is accurate, and under penalty of perjury, that the party alleging infringement is the copyright owner or the authorized person to act on behalf of the copyright owner; and (F) A physical or electronic signature of a person authorized to act on behalf of the copyright owner of the work that has allegedly been infringed. Please send this notification to our copyright agent at: firstname.lastname@example.org.
You agree to defend, indemnify, and hold harmless FSU, our parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, agents and advisors from any and all claims, liabilities, costs, and expenses, including, but not limited to, attorneys' fees and expenses, arising out of a breach by you or any user of your account of these Terms, or arising out of a breach of your obligations, representation and warranties under these Terms.
8. Limitation of Liability
IN NO EVENT WILL FSU, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS, BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE FSU WEBSITE, OR THESE TERMS, HOWEVER ARISING, INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
YOU ARE RESPONSIBLE FOR ANY MOBILE AND NETWORK CHARGES THAT MAY APPLY TO YOUR USE OF THE WEBSITE OR THE FSU PLATFORM. IF YOU ARE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE ACCESSING THE WEBSITE OR THE FSU PLATFORM.
The website and FSU Platform may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions (“Third-Party Websites”). FSU does not review, monitor, operate and/or control the Third-Party Websites and FSU makes no guarantees, representations and/or warranties as to, and shall have no liability for, the content available on or through and/or the functioning of the Third-Party Websites. By providing access to Third-Party Websites, FSU is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access and/or use of the Third-Party Websites, including providing information, materials and/or other content to the Third-Party Websites, is entirely at your own risk. FSU reserves the right to discontinue links to any Third-Party Websites at any time and for any reason, without notice.
9. Other Terms
9.1 Governing Law. These Terms are governed and construed by the laws of the State of California, except as otherwise provided in the Arbitration Provision.
9.3 No Waiver. Our failure to insist upon or enforce any provision of these Terms shall not be construed as a waiver of any provision or right.
9.4 Security. We do not guarantee that the website or FSU Platform will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to access the website. You should use your own virus protection software.
9.5 Severability. If any provision of these Terms is held to be invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
9.6 Interpretation. Headings and the contents page in these Terms are included for convenience purposes only and shall not affect the interpretation of these Terms.
10. Arbitration Provision / Class Action Waiver
10.1 Arbitration of Claims. In the event of a dispute between you and FSU, you and FSU agree to resolve the dispute through final and binding arbitration, as described in this Section (the “Arbitration Provision”). This Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. § 1, et seq.) and evidences a transaction involving commerce.
This Arbitration Provision applies to any past, existing or future claim, regardless of the date of its accrual, brought by either you or FSU, arising out of or related to: (i) these Terms; (ii) your access to and use of the FSU website (including any attempts by you to sign-up to use or obtain access to the FSU Platform as a Teacher); and (iii) except as otherwise set forth in Section 10.2, Class Action Waiver, below, disputes arising out of or relating to the interpretation or application of this Arbitration Provision, including the validity, enforceability, revocability, conscionability, scope, or breach of the Arbitration Provision, or any portion of the Arbitration Provision, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all such disputes between you and FSU’s officers, agents, employees, fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, all of which are third-party beneficiaries of this Arbitration Provision. FSU International, Inc. is an intended third-party beneficiary of this Arbitration Provision.
This Arbitration Provision does not apply to any claim that may not be arbitrated as provided by governing law. This Arbitration Provision does not apply to claims for workers’ compensation, state disability insurance, or unemployment insurance benefits. In addition, nothing in these Terms or this Arbitration Provision prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in these Terms or this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
The terms of this Arbitration Provision will come into force with your acceptance of these Terms, and through your access and use of the website, and will remain in force during and after all such access and use. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration. THIS ARBITRATION PROVISION REQUIRES ALL SUCH DISPUTES TO BE RESOLVED ONLY BY AN ARBITRATOR THROUGH FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, AND NOT BY WAY OF COURT OR JURY TRIAL, OR BY WAY OF CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION.
10.2 Class Action Waiver. You and FSU mutually agree that, by entering into this agreement to arbitrate, you and FSU both waive your right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective and/or representative action (“Class Action Waiver”). Notwithstanding any other provision of these Terms, this Arbitration Provision, or the JAMS Comprehensive Arbitration Rules & Procedures (discussed below), disputes regarding the validity, enforceability, revocability, conscionability, scope or breach of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid or unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. The Class Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
The parties recognize that controlling law in California holds that the right to pursue private attorney general representative actions on behalf of the State of California pursuant to the California Labor Code may not be waived by a private, pre-dispute agreement, and therefore are not subject to this Class Action Waiver and may be maintained in a court of law. However, to the extent there is any controlling judicial determination providing that the right to pursue private attorney general representative actions on behalf of the State of California pursuant to the California Labor Code may be waived by a private, pre-dispute agreement, the parties agree any such determination shall apply to this Arbitration Provision and Class Action Waiver.
10.3 Arbitration Procedure. The Arbitrator will be selected by mutual agreement of you and FSU. Unless you and FSU mutually agree otherwise, the Arbitrator will be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason you and FSU cannot agree to an Arbitrator, then an Arbitrator will be selected using the strike and rank method from a list of five (5) neutral Arbitrators provided by JAMS. If you and FSU cannot agree to an Arbitrator, and JAMS is unavailable, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court will then appoint an Arbitrator, who will act under this Arbitration Provision with the same force and effect as if the parties had selected the Arbitrator by mutual agreement or through the strike and rank method.
Unless you and FSU agree otherwise, the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”) will apply to the arbitration; however, if there is a conflict between the JAMS Rules and this Arbitration Provision, this Arbitration Provision shall govern. The JAMS Rules are available here: https://www.jamsadr.com/rules-comprehensive-arbitration/. The location of the arbitration proceeding will be no more than 45 miles from and in the same state where you accessed the website, unless each party to the arbitration agrees in writing otherwise. If you no longer reside in the general geographical vicinity from which you accessed the website, you and FSU will agree to a location of the arbitration within 45 miles of where you reside, provided it is within the same state from which you accessed the website and the parties cannot agree to an alternative location.
In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard will be resolved by the Arbitrator. A party, or the Arbitrator, at a party’s request, may subpoena witnesses or documents for discovery purposes or for the arbitration hearing. All claims in arbitration are subject to the same statutes of limitation that would apply in court. A demand for arbitration must be in writing and delivered by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration made by you must be delivered to Legal Department, FSU International, Inc., 301 Howard Street, STE 910, San Francisco, CA, 94105. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
10.4 Attorneys’ Fees and Costs. Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. Costs incidental to the arbitration, including the cost of the Arbitrator and the meeting site (“Arbitration Costs”), will be borne by you and FSU equally, unless otherwise required by applicable law. Any dispute regarding a party’s obligation to pay Arbitration Costs will be determined by the Arbitrator. In the event you contend that, as a matter of law, you are not responsible for payment of any or part of your portion of the Arbitration Costs, you will have no obligation to pay that portion of the contested Arbitration Costs until, and only if, the Arbitrator determines that you are responsible for those costs. If necessary for arbitration of the dispute, FSU agrees to cover the amount of the Arbitration Costs contested by you until such time as the Arbitrator determines payment responsibility. If the Arbitrator determines that you are responsible for any amount of the Arbitration Costs already paid by FSU, you will remit payment of that amount to FSU within thirty (30) days of the Arbitrator’s determination, and if the Arbitrator determines that FSU is responsible for any amount of the Arbitration Costs already paid by you, FSU will remit payment of that amount to you within thirty (30) days of the Arbitrator’s determination.
10.5 Post-Arbitration Procedures. Within thirty (30) days of the close of the arbitration hearing (which period may be extended by stipulation of the parties), any party will have the right to prepare, serve on the other party and file with the Arbitrator a post-arbitration brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies will be limited to those that would be available to a party in his or her or its individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator shall apply controlling law and will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties. A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant to the arbitration.
10.6 Enforcement. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
10.7 Changes. Notwithstanding the provisions in Section 4 of these Terms, regarding your consent to be bound by amendments to these Terms, if we change this Arbitration Provision after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing us written notice of such rejection within 30 days of the date such change became effective, as indicated in the “Last Updated” date above. This written notice must be provided either (i) by mail or hand delivery to: Legal Department, FSU International, Inc., 301 Howard Street, STE 910, San Francisco, CA, 94105, or (ii) by email to email@example.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration Provision. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and FSU in accordance with the provisions of this Arbitration Provision as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
11. California Consumer Rights Notice.
Under California Civil Code Section 1789.3, California users of the website and FSU Platform receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at the contact information set forth at http://www.dca.ca.gov/about_dca/contactus.shtml.
Contact Us. Users in the United States can contact us with questions about our Terms by sending an email to firstname.lastname@example.org.