Terms Of Service

‍TERMS OF SERVICE‍

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These Terms of Service, including any Order Form and other document agreed to by the parties referencing these Terms of Service, (collectively, “Agreement”) are entered into between you (“you” or “your”) and Tech Nest Ventures Inc., and its affiliates (“Company”) and applies to any product, website or service provided by Company, including but not limited to Company’s artificial intelligence grading platform (“Platform”), the Company website available at essaygrader.ai, including subdomains, (“Website”) and any other product or service to which the Agreement applies (collectively, “Service”).

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BY CLICKING “I AGREE” OR SIMILAR CONFIRMATION OR BY USING THE SERVICE YOU ARE AGREEING TO BE BOUND BY THE AGREEMENT.

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IF YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE AUTHORITY TO BIND THE ORGANIZATION TO THE AGREEMENT AND ARE AGREEING TO THE AGREEMENT FOR THAT ORGANIZATION. WHERE YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION, “YOU” AND “YOUR” REFER TO THE ORGANIZATION.

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THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS HOW DISPUTES ARE RESOLVED. PLEASE READ IT AND ALL TERMS CAREFULLY.

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1. DESCRIPTION OF THE SERVICE

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The Platform is a web-based application for managing, monitoring and streamlining the grading process. The Service allows you to utilize artificial intelligence software to efficiently assess and grade uploaded content based upon specified assessment rubrics provided by Company, your school district or educational institution or individually customized by you. 

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2. ACCESS; SUBSCRIPTION

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1. Access and Creation. The Website provides access to: (a) publicly accessible content, such as general information about the Service and Company (“Public Site”); and (b) the Platform through one or more registered account (each, an “Account”) provided by Company at its discretion directly or indirectly through a third party single sign on (for example, Google). Anyone registering for access to the Platform must be at least 18 years old, or the age of majority in their jurisdiction (whichever is older). You represent and warrant that you have the right and authority to enter into this Agreement.

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2. Account Types. Accounts are divided into: (a) individual accounts, for teachers, tutors, and other personal education providers, to individually access and use the Platform for their educational purposes (each, an “Individual Account”); and (b) institutional accounts, for tutoring companies, school districts, educational institutions and other groups or entities that wish to use the Service and provide Platform access to employees or contractors (each, an “Institutional Account”). 

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3. Accounts and Log-in Information. To create, access and use your Account, you shall: (a) provide accurate contact information, including but not limited to your full name, email address and telephone number; (b) ensure your Account log-in information (“Log-in Information”), remains confidential and use commercially reasonable efforts to ensure the security and confidentiality of your Log-in Information; (c) not share your Log-in Information with any other person or entity (except that you may share your Log-in Information with your Institutional Account holder if required as part of its business practices); and (d) be responsible for all activity on the Service that originates from Accounts accessing the Service through your Log-in Information. You represent and warrant that all information provided to Company during Account registration and the onboarding process is correct and complete.

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4. Institutional Account Administration. Institutional Account holders are provided with the ability to manage and create Individual Accounts for each of their eligible institution members (each, a “Member”). Each Member under an Institutional Account will create their own Log-In Information. Institutional Account holders are responsible for ensuring all of their Members’ acceptance to and compliance with this Agreement. Company’s responsibilities do not extend to the internal management or administration of the Service for Institutional Account holders. 

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5. Institutional Account Members. Use of and access to the Platform for each Member under their Individual Account is subject to the terms provided for under the Institutional Account holder’s Subscription or Order Form as well as the terms of this Agreement and any other written agreement between Company and the applicable Institutional Account holder or Member. 

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6. Paid Subscription. If you purchased a paid subscription for the Service, Company hereby grants you a non-transferrable, limited subscription to access paid portions of the Service, pursuant to such paid subscription, in each case subject to the Agreement (“Subscription”). For Individual Accounts, the Subscription provides access to the Platform’s features, which may include higher content upload limits, additional third party integrations and/or other features (collectively, the “Features”) as described in your Subscription terms and/or Order Form. As an Institutional Account Holder, the Subscription permits you to register Members and provide those Members with certain Features under their Individual Accounts, as detailed in your Subscription and/or Order Form.

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7. Free Subscription. As an Individual Account holder, you may sign-up for and the Company may provide you with a free subscription for certain Service Features (“Free Subscription”), in which case the Company grants you a non-transferrable, limited subscription to access the Free Subscription as further described on the Public Site and/or Order Form. Notwithstanding any other provisions of this Agreement, access to the Free Subscription is on an “AS IS” and “WHEN AVAILABLE” basis.

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8. Modifications; Customizations; Updates. Company reserves the right to modify Features available under the Subscription and Free Subscription on one or more occasions, temporarily or permanently. Company may, without advance notice to you, automatically install or implement customizations, updates, upgrades or new Features to the Service that Company deems to be necessary, reasonable and/or beneficial to you or your use of the Service. Company retains all right, title and interest to any modifications, customizations or updates to the Service, whether or not requested or provided to you pursuant to one or more Work Order.

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9. Professional Services. If you request that the Company provide professional services in connection with your use of the Service, Company shall determine in its sole discretion whether to undertake such professional services and, if Company desires to proceed, provide Customer a work order for such professional services (“Work Order”). The Work Order may contain an estimate of the time required to complete such professional services, associated cost and other applicable terms. Where the request for professional services occurs prior to execution of an Order Form, the terms of a Work Order may alternatively be substituted into an Order Form. Professional services are subject to Customer’s acceptance of the applicable Work Order and any other terms incorporated by reference, including this Agreement. All right title, and interest to the work product resulting from any professional services provided under a Work Order remains Company property. You acknowledge and agree that your right to use or access the resulting product of any Work Order is in the form of a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the resulting product on the same terms as your subscription above.

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10. Third Party Links. The Service may include links to third party websites. Company is not responsible for the content such third party websites and any kind of loss/damage arising out of your access or use thereof. 

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11. Third Party Applications. The Service integrates with third party services (“Third Party Services”), including but not limited to OpenAI, PromptLayer, Pinecone, Dropbox, Google Classroom, and Canvas LMS. The Agreement does not grant any right, title, license or interest in Third Party Services, which Third Party Services may require you to enter into separate agreements to access certain Features of the Service, and which you must determine the suitability of, in your sole discretion. If you use Third Party Services, Company may permit Third Party Services to access Customer Property as required for integration or use with the Service and as further permitted by Company’s Privacy Policy. Integration of Third Party Services relies on third parties permitting Company to integrate the Third Party Services into the Service and such permission and/or integration may conclude at any time without notice or compensation to you. 

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12. Third Party Vendors. Company uses third party vendors and hosting software, including but not limited to Stripe, DigitalOcean and Heroku, to provide the Service to you. You acknowledge and agree that except to the extent required by law, Company shall not be liable or responsible for the acts or omissions of such third party vendors and/or hosting software. You shall comply with all third party vendor terms and policies to access and use the Service and your failure to do so may render the Service inoperable or limit Service functionality.

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3. SUBSCRIPTION FEE

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1. Fee. The current terms of a Subscription or Free Subscription are available at essaygrader.ai/pricing or in your Order Form, as applicable. The price of the Subscription is displayed to you at the time of purchase and may include a monthly, annual or other recurring fee (“Fee”). The Fee is charged on the day of the month or year in which your Subscription commences (or such other date agreed to by the parties) and is charged on a recurring basis until the Subscription is terminated by you or Company pursuant to the Agreement. Company reserves the right to adjust the price of the Fee upon at least 30 days’ notice, such adjustment to take effect on the subsequent Fee billing cycle.

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2. Taxes. The Fee excludes taxes and any applicable duties and charges, which you shall pay. If Company pays or collects taxes on your behalf, you shall pay Company the applicable amount on the same terms as the Fee. You shall indemnify Company for any liability or expense Company may incur, including but not limited to outstanding taxes and any related penalties or interest, in connection with your failure to remit applicable taxes and/or other amounts owed to Company.

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3. Upgrading or Downgrading. You may upgrade your Subscription by paying an additional Fee (prorated to the date of the month or year in which you upgraded and payable on the subsequent Fee billing cycle) or downgrade, upon Company approval of your downgrade request. For monthly Subscription downgrades, a downgraded Fee takes effect on the subsequent billing cycle. For annual Subscription downgrades, Company shall provide a Fee credit pro-rated to the date of your downgrade credited to next billing cycle. For any other billing cycle, please refer to the Order Form for Subscription upgrade and downgrade rules.

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4. Cancellation. For Individual Account holders who are not a Member under an Institutional Account, a Subscription may be cancelled directly through the Platform and is effective immediately. For Institutional Account holders, a Subscription may be cancelled by providing Company at least 60 days written notice to hello@essaygrader.ai, with “Cancellation” as the subject line and your Account information in the email body. Upon your cancellation of a Subscription: (a) you remain liable for all charges accrued under your Subscription or Order Form and shall not receive a refund for any Fee already paid; and (b) access to your Subscription will automatically terminate and all associated data, to the extent held by Company, deleted, except as expressly provided for in the Agreement and Company Privacy Policy.

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5. Payment. You shall provide Company with a form of payment and corresponding payment information (for example, bank account or credit card information) acceptable to Company. If you elect to pay by credit card, you hereby authorize Company, or a third party designated by Company (for example, Stripe) to charge such credit card. By making a payment to Company, you represent and warrant that: (a) you have the legal right to use any credit card(s) or other payment method(s) in connection with your payments to Company; and (b) the information you provide for payment purposes is correct and complete. If paying by credit card, you shall provide a valid credit card and if such credit card changes or expires, or is revoked, disputed, cancelled or not valid for any other reason, Company may suspend your and/or your Members’ use of the Service upon 5 days’ notice or otherwise terminate the Agreement pursuant to Section 4. You shall immediately notify Company of any inaccuracies to payment information. By submitting payment information, you hereby authorize and grant all rights necessary for Company, or any third party acting on Company’s behalf, to automatically charge the Fee on a recurring basis. The Fee excludes applicable taxes, which Company charges as required by the laws of your jurisdiction and that you shall pay pursuant to Section 3.2. 

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6. Failure to Pay. Failure to pay the Fee in a timely manner for a 7-day period shall result in Company ceasing to offer the Service to you until this Agreement is terminated pursuant to Section 4.3(a) or you pay all Fees in arrears. The Company reserves the right to charge interest on any overdue Fee.

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7. Refunds. Unless required by law or in its sole discretion, Company shall not provide a refund for any Fee you have paid. If you believe that you are entitled to a refund, you may request a refund by emailing Company at hello@essaygrader.ai, including “REFUND REQUEST” in the subject line and describing in the body of the email how you qualify for a refund along with any other relevant details of your request.

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4. TERM AND TERMINATION

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1. Term. Unless otherwise specified in writing by Company, this Agreement is effective on the earliest of: (a) in the case of access to the Public Site, the date you first access the Public Site; or (b) if a Subscription or Free Subscription, the earliest of: (i) the date you sign up for a Subscription or Free Subscription; or (ii) the date an Order Form is executed (the “Effective Date”). Subscriptions are automatically renewed on a monthly, annual or other recurring anniversary of the Effective Date unless terminated, suspended or cancelled by you, and you hereby consent to such autorenewal. The Agreement is effective from the Effective Date until terminated (the “Term”). 

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2. Suspension. Company reserves the right to suspend or otherwise restrict access to the Service without notice to you if Company believes you are in breach of any term of the Agreement and for any other reason as detailed in this Agreement or applicable policies/agreements. If access to the Service is restricted or suspended, Company is not liable to you, any Member or any third party for any loss arising from such action. Company may lift a suspension or reverse restricted access in its sole discretion. 

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3. Termination. The Term terminates upon the earliest of:

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1. failure to pay any amount due and owing in a timely manner and failure to remedy non-payment within 7 days after receipt of notice for amounts overdue by 7 days; 

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2. non-compliance with the Agreement and failure to remedy such non-compliance within 10 days after receiving written notice;

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3. at your option, pursuant to Section 3.4; or

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4. immediately, upon Company ceasing to offer the Service, which may occur at any time without notice.

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4. Effect of Suspension, Termination. Upon Subscription suspension or termination, you acknowledge your access to the Service ceases. While Company may store data related to your use of the Service for up to 180 days after the date of termination, it is not obligated to, and, thereafter, may permanently delete all such data, all in accordance with Company’s Privacy Policy. Notwithstanding the foregoing, you acknowledge and agree that you are not entitled to a refund or other compensation of any kind resulting from such suspension or termination, including any losses sustained by the deletion of data associated with the Service, regardless of whether effectuated by you or Company, and that Company shall not be liable to you or any third party for such suspension or termination and any loss related thereto.

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5. USE OF THE SERVICE

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1. Authorized Use. During your use of the Service, you may not:

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1. knowingly provide false or inaccurate information to Company;

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2. engage in conduct constituting improper use of the Service, in a manner that exceeds reasonable volume or constitutes excessive or abusive usage;

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3. decompile, disassemble or reverse engineer the Service or otherwise attempt to derive the Service source code or gain unauthorized access to the Service; 

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4. alter, change or circumvent security related aspects of the Service;

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5. export or share versions of the Service (or parts of the Service) outside the Service (including through any project or job postings);

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6. use any automated system (bot, spider, etc.) to access the Service;

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7. knowingly input anything containing a computer virus or any code, file or software program that may harm the Company, the Service or other users;

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8. knowingly reproduce, rearrange, modify, change, alter, translate, create derivative works from, display, perform, publish, or distribute the Service; 

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9. knowingly break, disrupt or attempt to break or disrupt any device used to support the Service or other’s experience of the Service or knowingly exploit a flaw or bug in the Service;

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10. knowingly store or transmit material that is infringing, libelous, unlawful or in violation of any person’s rights or a group of people’s rights;

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11. use the Service to provide information or data to a competitor of Company;

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12. use hate speech, hate terms, racist speech, racist terms or any other words or symbols that signify hate towards any person or group of people, including derogatory comments against women or minorities;

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13. sell, rent, lease, license or sublicense the Service or access thereto, unless expressly permitted by the Company in writing;

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14. promote, encourage or undertake illegal activity or communicate, link to, post, stream, submit or upload content that contains objectionable or offensive conduct through the Service; or

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15. knowingly infringe or violate third-party rights including but not limited to: (i) contractual rights; (ii) copyright, patent, trademark or trade secret rights; (iii) privacy rights; (iv) publicity rights; or (v) confidential information,

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as determined by Company in its sole and absolute discretion. 

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2. Excess Usage. Company reserves the right to monitor and reasonably restrict your ability to use the Service if you are using excessive computing resources impacting performance of the Service for Company and/or other users, as determined by Company acting reasonably. Company shall provide you with prior written notification in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work­around solution prior to restricting your ability to use the Service.

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3. Privacy Policy. Use of the Service is governed by a Privacy Policy detailing how Company collects, uses and/or discloses personal and anonymous data about you. Company Privacy Policy can be found at essaygrader.ai/privacy-policy. By using the Service, you represent and warrant that you have the ability to gather consents to Company’s Privacy Policy from all authorized Members prior to their access and use of the Service. If at any time you disagree with the then-current Privacy Policy, you must immediately cease use of the Service and contact Company at hello@essaygrader.ai.

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6. ARTIFICIAL INTELLIGENCE

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1. AI Disclaimer. Certain aspects of the Service use artificial intelligence (“AI”), which AI features enable machine learning capabilities and predictive analysis to generate outputs (“AI Content”) from specific data inputs within the Service, including by assessing inputs and content you upload under the specific guidelines of a grading rubric (“AI Features”). These AI Features are provided by the Service’s integration with technology provided by OpenAI OpCo, LLC (“OpenAI®”). Company uses commercially reasonable efforts to ensure that data and inputs that Company provides to OpenAI® in providing the Service are de-identified and/or anonymized prior to being shared. By using the Service, you agree that use of the AI Features is permitted by all applicable laws of your jurisdiction. You represent and warrant that you have all necessary right, title and interest to any data inputs used for the AI Features and that any such data inputs provided by third parties are collected, used and shared in accordance with applicable laws, including but not limited to privacy laws. Use of the AI Features are provided on an “AS IS” and “WHEN AVAILABLE” basis.

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2. AI Outputs. AI Content and related outputs the Service generates through AI Features may not be entirely accurate and may produce errors, inconsistencies or other inaccuracies. You acknowledge and agree that any AI Content or other outputs produced by the AI Features do not reflect the beliefs, opinions, or advice of Company or any Company Parties (defined below) personally. AI Content does not constitute legal, financial, medical or any other professional advice. Company disclaims all representations, warranties and covenants as to the accuracy and/or completeness of any AI Content. You are responsible for verifying all AI Content and related outputs for accuracy and completeness and revising or editing such outputs, as may be reasonably required, before sharing them. You retain all right, title and interest to the AI Content produced by the AI Features.

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3. AI Acceptable Use Policy. By using any of the AI Features, you agree to de-identify and/or anonymize data, content or inputs that include personally identifiable information of students and/or minors before providing such data or inputs on the Service, including but not limited to associated metadata. You also hereby represent and warrant that you will not, nor will you authorize anyone on your behalf to:

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1. misrepresent to anyone that the AI Content or related outputs generated by the AI Features are human-generated;

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2. use the AI Features in a way that violates or infringes upon any third party rights, including but not limited to the rights of students and/or minors under the Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA); or

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3. use the AI Features to offer legal, financial or health advice, to promote political opinions, or to engage in activities that have a high risk of economic harm,

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as determined by Company in its sole and absolute discretion. 

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7. PROPERTY

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1. Company Property. The Service and constituent parts thereof, including but not limited to software, workflow processes, user interface, designs, know-how and other technologies provided by Company are the proprietary property of Company and its licensors, and all right, title and interest therein, including but not limited to all associated intellectual property rights, remain only with Company and its licensors. You may not remove or modify any proprietary marking or restrictive legends in the Service. The Agreement does not convey any right, title or interest in, or constitute the sale of any right to, the Service, Subscription or Account. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are and shall be forever owned by and inure to the benefit of Company, excluding Customer Data. The trademarks, logos, and service marks (collectively, “Trademarks”) displayed on the Service are registered and unregistered marks of Company or are otherwise used in accordance with applicable law. Nothing contained in the Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Trademarks without Company’s written permission. Company reserves all rights unless expressly granted in this Agreement.

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2. Customer Property. You retain all right, title and interest in all information, content and data owned or licensed by you that you provide, upload or share through the Service, (“Customer Property”) subject to any agreement imposed by third party vendors and services. Company may use, access or store Customer Property in order to provide, analyze and modify the Service, and you hereby grant Company a limited and revocable license to Customer Property under all copyright, trademark, trade secret, patent, privacy and publicity rights and any other intellectual or industrial property rights you own or control to use, display, modify, record, translate, transmit or otherwise exploit such Customer Property solely in order to facilitate the provision of Service. You represent and warrant that: (a) all Customer Property you upload to Service is uploaded and/or shared in accordance with applicable laws, including but not limited to the Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA), as applicable, and all other intellectual property and privacy laws; and (b) you have obtained all consents, licenses and rights necessary to license Customer Property to Company prior to providing or sharing any such Customer Property with Company, including but not limited to third party rubrics and submissions.

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3. Third Party Rights. All right, title and interest in and to the third party services including but not limited to copyrights, patents, trademark, trade secrets, trade names, computer code (source and object), are owned by or licensed to the respective third party services providers. The Agreement does not convey any right, title or interest in, or constitute the sale of any right to, the third party services.

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4. Feedback; Survey. Unless otherwise agreed to in writing, Company may, with your consent, use your name, company name, trademarks and other communications in Company marketing and promotional materials for the limited purpose of surveys, reviews, ratings, webinars, testimonials and comments that you provided Company through the Service (“Feedback”). By submitting Feedback, you agree that: (a) your disclosure is voluntary, free, unsolicited, and without restriction; (b) your Feedback does not contain the confidential or proprietary information of third parties, including but not limited to Student Data; and (c) Company is free to use the Feedback without any compensation to you and to disclose the Feedback on a non-confidential basis or otherwise to anyone.

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8. DMCA

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Company complies with the U.S. Digital Millennium Copyright Act (“DMCA”). If you are a copyright owner or representative of the owner and believe that a user has submitted or uploaded material that infringes upon your United States copyrights, you may submit notification in accordance with the DMCA by providing Company with the following information in writing:

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1. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

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2. identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Service (such as the URL(s) of the claimed infringing material);

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3. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;

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4. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

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5. a statement by you, made under the penalty of perjury, that the above information in your notification is accurate and that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and

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6. your physical or electronic signature.

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Please send all written correspondence of alleged infringements to:

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ATTN: Copyright Compliance Department

Voyer Law Corporation

403-134 Abbott Street

Vancouver, British Columbia, Canada

V6B 2K4

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You may also contact legal by email to dmca@voyerlaw.com

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9. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNITY

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1. DISCLAIMER. THE SERVICE IS PROVIDED TO YOU “AS IS” AND COMPANY AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES AND ASSIGNS (COLLECTIVELY, “COMPANY PARTIES”), DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR COMPLIANCE WITH LAWS, TO THE EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, THE COMPANY PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE SERVICE WILL NOT INFRINGE ANY COPYRIGHT, PATENT, TRADEMARK LAW OR OTHER RIGHTS HELD BY A THIRD PARTY. FURTHER AND WITHOUT LIMITING THE FOREGOING, THE COMPANY PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE, SERVICES PERFORMED AND PRODUCTS PROVIDED BY THE COMPANY PARTIES OR OTHER THIRD PARTIES, WILL COMPLY WITH APPLICABLE LAWS WITHIN YOUR JURISDICTION, MEET YOUR REQUIREMENTS, NOT CAUSE DAMAGE TO YOU, YOUR PROPERTY OR PROPERTY OF OTHERS, OR THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, CONTINUOUSLY AVAILABLE, ERROR FREE OR WILL NOT HARM YOUR COMPUTER OR MOBILE DEVICE OR RESULT IN LOST DATA. THE COMPANY PARTIES MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES REGARDING: (A) YOUR SATISFACTION WITH THE SERVICE; (B) THAT THE SERVICE WILL ALWAYS BE AVAILABLE AND ERROR FREE; OR (C) THAT THE COMPANY WILL PROMPTLY RESPOND TO ANY INQUIRIES OR SUBMISSIONS. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY THE COMPANY PARTIES WILL CREATE ANY WARRANTY AND YOU SHALL NOT RELY EXCLUSIVELY UPON SUCH ADVICE OR INFORMATION. YOU BEAR THE ENTIRE RISK AS TO THE PERFORMANCE, OPERATION AND QUALITY OF THE SERVICE. 

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2. LIMITATION OF LIABILITY. THE COMPANY PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM, LOSS OR DAMAGE OF ANY KIND ARISING OUT OF OR RELATING TO THE SERVICE OR THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION DIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, PERSONAL INJURY OR DEATH AND ANY AND ALL OTHER TANGIBLE AND INTANGIBLE DAMAGES OR LOSSES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TERMS OR WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES AND, IF ANY DISCLAIMER OR LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE, VOID OR DOES NOT FULLY SHIELD THE COMPANY PARTIES FROM LIABILITY, YOU AGREE THAT THE COMPANY PARTIES’ MAXIMUM AGGREGATE LIABILITY IN ANY CASE WHATSOEVER WILL BE THE TOTAL AMOUNT PAID BY YOU TO THE COMPANY IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE HARM IN QUESTION. ANY CLAIM THAT YOU MAY HAVE AGAINST THE COMPANY PARTIES MUST BE COMMENCED NO LATER THAN 12 MONTHS AFTER THE DAY ON WHICH THE CLAIM IS DISCOVERED OR OUGHT TO HAVE BEEN DISCOVERED BY YOU.

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3. Indemnity. You shall indemnify, defend and hold the Company Parties harmless from and against any claim, liability, demand, injury, damage, cost, loss or expense, including reasonable attorneys’ fees, in connection with your use and access to the Service or Third Party Services, personal injury or death arising while using or accessing the Service or Third Party Services, or your violation of the Agreement or any law or regulation (including but not limited to privacy laws). You shall not settle any claim without the Company’s advance written consent unless such settlement releases the Company Parties unconditionally. Company reserves the right to, at its expense, assume control of the claim.

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10. DISPUTE RESOLUTION

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1. Initial Dispute Resolution. Most disputes between you and Company can be resolved without resort to legal action. If you have any dispute with Company, you agree that prior to taking any formal legal action you shall contact Company at hello@essaygrader.ai, and provide a brief, written description of the dispute and your contact information. You and Company agree to use commercially reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

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2. Binding Arbitration. If the parties cannot come to a resolution within 30 days after the time an informal dispute resolution is initiated, you agree that any disputes or claims between you and Company, including the Company Parties, shall be resolved by confidential, final and binding arbitration to be conducted in Toronto, Ontario and administered by the Toronto Commercial Arbitration Society (“TCAS”). The arbitration shall be commenced and conducted in accordance with the TCAS’s Model Rules (the “Rules”). Your arbitration fees and your share of the arbitrator’s compensation shall be governed by and, where appropriate, limited by the Rules. By agreeing to arbitration, you understand that you are waiving the right to sue in court or have a jury trial for all claims, except as limited by applicable law. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS LIMITED BY APPLICABLE LAW. THE PARTIES AGREE THAT THIS SECTION 10.2 SHALL NOT APPLY TO: (I) DISPUTES CONCERNING INTELLECTUAL PROPERTY, ALLEGATIONS OF THEFT, PIRACY, VIOLATION OF PRIVACY LAWS OR USE OF THE SERVICE IN VIOLATION OF THIS AGREEMENT; OR (II) CLAIMS FOR INJUNCTIVE RELIEF.

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3. CLASS ACTION WAIVER AND PROHIBITION. YOU AGREE THAT ANY ARBITRATION OF A DISPUTE OR CLAIM SHALL BE LIMITED BETWEEN COMPANY PARTIES AND YOU INDIVIDUALLY. TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION SHALL BE JOINT WITH ANY OTHER AND YOU HAVE NO RIGHT OR AUTHORITY TO: (A) ARBITRATE A DISPUTE OR CLAIM ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS-ACTION PROCEDURES; AND TO (B) RAISE A DISPUTE OR CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO HAVE ANY DISPUTE OR CLAIM RESOLVED AS A PLAINTIFF OR MEMBER OF A CLASS ACTION.

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11. GENERAL

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1. No Joint Relationship/Independent Contractor Relationship. Nothing in the Agreement shall be construed to create any joint partnership, joint venture, employer-employee or agency relationship between you and Company, unless expressly provided for in a separate written agreement between you and Company incorporating terms of the Agreement.

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2.  Governing Law. The Agreement, Terms of Service, Privacy Policy and any other applicable policies of Company (“Company Policies”) are governed by the laws of the province of Ontario, without reference to principles of conflicts of laws. The parties irrevocably attorn to the jurisdiction of the appropriate provincial and federal courts of the province of Ontario to hear any proceedings related to the Company Policies.

3. Severability and Waiver. If any provision of the Company Policies is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law with remaining provisions of the Company Policies in full force and effect. No failure or delay by a party in exercising any right, power or remedy under the Agreement constitutes a waiver thereof. 

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4. California Consumer Notice. Under California Civil Code Section 1789.3, California users of an electronic commercial service are entitled to know that they may file grievances and complaints with the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

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5. Export Compliance; UN Convention Disclaimer. U.S. and foreign export control laws regulate the export and re-export of technology originating in the United States and other foreign countries. You agree to abide by all export control laws and regulations as applicable and will not transfer, directly or indirectly, by electronic transmission or otherwise, the Service from any countries or foreign nations in violation of such laws or regulations. You shall comply with the export laws and regulations of the applicable jurisdictions in which you provide, access or use the Service. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.

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6. Force Majeure. Except for any payment obligations, neither you nor the Company shall be liable for failure to perform any obligation under the Agreement to the extent such failure is caused by a force majeure event (including acts of God, pandemics (including government-imposed recommendations and restrictions due to a pandemic or epidemic), natural disasters, war, civil disturbance, action by a government entity, strike, and other causes beyond reasonable control). The party affected by the force majeure event shall provide notice to the other party within a commercially reasonable time and shall use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event shall be performed as soon as reasonably possible when the force majeure event concludes.

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7. Assignment. Company may assign the Agreement, without your consent or notice to you. You cannot assign, transfer or pledge the Agreement, in whole or in part, without the prior written consent of Company.

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8. Survival. Sections 3.7, 4.4, 5.3, 7, 9, 10 and 11 survive termination of the Agreement.

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9. Currency. Unless otherwise stated, all references to a sum of money or fees in the Agreement are expressed in lawful money of the United States of America and $ refers to USD. 

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10. Entire Agreement. The Agreement, together with the Company Policies and any other agreed upon documents linked to or referenced in this Agreement, including but not limited to any Order Form, constitute the entire agreement between you and Company with respect to the subject matter hereof and supersedes any prior and contemporaneous oral or written agreements, proposals, communications, representations or undertakings provided. 

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11. Priority of Agreements. In the event of a conflict between these Terms of Service and any other agreement between you and Company, including but not limited to any Order Form or Work Order, these Terms of Service control.

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12. Updates. Company reserves the right, in its sole discretion, to modify the Agreement at any time (each, an “Update”) and shall make each Update available through the Website and/or email notification to you. You are deemed to accept any Update by continuing to use the Service unless you terminate the Service. Unless Company states otherwise, an Update is automatically effective 30 days after such Update is made available on the Website, except in such case where an Update is immaterial to any of your legal rights or legal obligations of Company and Update is made only to correct a grammar, formatting or typographical inaccuracy and in such case, an Update is effective immediately after it is made available on the Website.

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