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Terms of Service

KellynKai Terms of Service

Last Updated: December 23, 2022

These Terms of Service constitute a legally binding agreement (the “Agreement”) between you and KellynKai Corporation, its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “KellynKai,” “we,” “us” or “our”) governing your use of the KellynKai application, website, and technology platform (collectively, the “KellynKai Platform”).

PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND KELLYNKAI CAN BE BROUGHT (SEE SECTION 17 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST KELLYNKAI TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A TUTOR OR TUTOR APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.

By entering into this Agreement, and/or by using or accessing the KellynKai Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE KELLYNKAI PLATFORM OR ANY OF THE SERVICES PROVIDED THROUGH THE KELLYNKAI PLATFORM.

The KellynKai Platform

The KellynKai Platform provides a marketplace where persons who seek tuition (“Students”) can be matched with persons who provide tuition. One option for Students is to request a class from tutors. Tutors and Students are collectively referred to herein as “Users,” and the tutoring services provided by Tutors to Students shall be referred to herein as "Tutoring Services." As a User, you authorize KellynKai to match you with a Tutor or Student based on factors such as your desired class time. Any decision by a User to offer or accept Tutoring Services is a decision made in such User’s sole discretion. Each Tutoring Service provided by a Tutor to a Student shall constitute a separate agreement between such persons.

Modification to the Agreement

KellynKai reserves the right to modify the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. KellynKai reserves the right to modify any information on pages referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the KellynKai Platform or Tutoring Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).

Eligibility

The KellynKai Platform may only be used by individuals who have the right and authority to enter into this Agreement, are fully able and competent to satisfy the terms, conditions, and obligations herein. The KellynKai Platform is not available to Users who have had their User account temporarily or permanently deactivated. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account. To use the KellynKai Platform, each User shall create a User account. Each person may only create one User account, and KellynKai reserves the right to deactivate any additional or duplicate accounts.

By becoming a User, you represent and warrant that you are at least 18 years old. Notwithstanding the foregoing, if you are the parent or legal guardian of a 16 or 17-year old minor you may create a KellynKai account for such minor to use the KellynKai Platform subject to the following requirements and restrictions: (a) you ensure that the minor’s use of the KellynKai Platform is limited solely to accessing and using tutoring services, (b) you ensure that the minor’s use of the KellynKai services is done in compliance and acknowledgement of all applicable safety instructions and warnings in this Agreement, any applicable Supplemental Agreements, and the KellynKai App, (c) you ensure that the minor does not request or accept any Tutoring Services unless accompanied by you or an authorized guardian, and (d) you expressly guarantee the minor’s acceptance of the terms of this Agreement. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor.

By creating a KellynKai account for such minor, you hereby give permission and consent to the Agreement on the minor’s behalf, and you shall assume any and all responsibility and liability for the minor's use of the KellynKai Platform as provided by the terms of this Agreement and any applicable Supplemental Agreements. You will be responsible for any breach of the above representations, warranties and/or this Agreement, and/or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor.

Charges

As a student, you understand that the request or use of Tutoring Services may result in charges to you (“Charges”). Pricing may vary based on the type of service you request as described on your market’s KellynKai page. You are responsible for reviewing the applicable KellynKai page or price quote within the KellynKai app and shall be responsible for all Charges incurred under your User account regardless of your awareness of such Charges or the amounts thereof.

  • Facilitation of Charges. All Charges are facilitated through a third-party payment processor (e.g., First Data, Stripe, Inc., or Braintree, a division of PayPal, Inc.). KellynKai may replace its third-party payment processor without notice to you. Charges shall only be made through the KellynKai Platform. With the exception of tips, cash payments are strictly prohibited. Your payment of Charges to KellynKai satisfies your payment obligation for your use of the KellynKai Platform and Tutoring Services. KellynKai may group multiple charges into a single aggregate transaction on your payment method based on the date(s) they were incurred. If you don't recognize a transaction, then check your class receipts and payment history.
  • No Refunds. All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the KellynKai Platform, any disruption to the KellynKai Platform or Tutoring Services, or any other reason whatsoever.
  • List Prices. The prices listed on KellynKai website are for scheduled classes.
  • Packages. Starter packages are valid for 6 months from the time of purchase. Enhanced packages are valid for 1 year from the time of purchase.
  • Custom Materials. Additional material fees may apply if we customize material for the student.
  • Extended Classes. If a scheduled class lasts longer than the scheduled class duration, the actual class duration will be used to calculate the tuition. If a scheduled class lasts shorter than the scheduled class duration, the scheduled class duration will be used to calculate the tuition.
  • Rescheduling and Cancellation.  Scheduled classes can be canceled or rescheduled up to 24 hours in advance with no charge. We reserve the right to refuse to reschedule classes within 24 hours.  No-shows or classes canceled within 24 hours will be charged.  Late-shows will be charged from the class scheduled starting time.
  • On-demand classes. The price for on-demand classes is the same or higher than scheduled classes. KellynKai will proceed with an on-demand class only after the student agrees to the price. On-demand classes start when both the student and the tutor arrive in the Classroom App. The class ends when either the tutor or the student ends the class.
  • Coupons. You may receive coupons that you can apply toward payment of certain Charges upon completion of a Class. Coupons are only valid for use on the KellynKai Platform, and are not transferable or redeemable for cash except as required by law. Coupons cannot be combined, and if the cost of your class exceeds the applicable credit or discount value we will charge your payment method on file for the outstanding cost of the Class. Additional restrictions on coupons may apply as communicated to you in a relevant promotion or by clicking on the relevant coupon within the Promotions section of the KellynKai App.
  • Credit Card Authorization. Upon addition of a new payment method for each class request, KellynKai may seek authorization of your selected payment method to verify the payment method, ensure the class cost will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank. Check out our Help Center to learn more.

Payments

If you are a Tutor, you will receive payment for your provision of Tutoring Services pursuant to the terms of the Tutor Addendum, which shall form part of this Agreement between you and KellynKai.

KellynKai Communications

By entering into this Agreement or using the KellynKai Platform, you agree to receive communications from us, including via email, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from KellynKai, its affiliated companies and/or Tutors, may include but are not limited to: operational communications concerning your User account or use of the KellynKai Platform or Tutoring Services, updates concerning new and existing features on the KellynKai Platform, communications concerning promotions run by us or our third-party partners, and news concerning KellynKai and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.

IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO +1-408-759-4601 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE KELLYNKAI PLATFORM OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM KELLYNKAI (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO +1-408-759-4601 FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE KELLYNKAI PLATFORM OR RELATED SERVICES.

Your Information

Your Information is any information you provide, publish or post to or through the KellynKai Platform (including any profile information you provide) or send to other Users (including via in-application video calls, messages, feedback, any email feature, or through any KellynKai-related Facebook, Twitter or other social media posting) (your “Information”). You consent to us using your Information to create a User account that will allow you to use the KellynKai Platform and participate in the Tutoring Services. Our collection and use of personal information in connection with the KellynKai Platform and Tutoring Services is as provided in KellynKai’s Privacy Policy. You are solely responsible for your Information and your interactions with other members of the public, and we act only as a passive conduit for your online posting of your Information. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete. KellynKai may record Information from your video calls and messages for training purposes.  To enable KellynKai to use your Information for the purposes described in the Privacy Policy and this Agreement, you grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, sub-licensable (through multiple tiers) right and license to exercise the copyright, publicity, and database rights you have in your Information, and to use, copy, perform, display and distribute such Information to prepare derivative works, or incorporate into other works, such Information, in any media now known or not currently known. KellynKai does not assert any ownership over your Information; rather, as between you and KellynKai, subject to the rights granted to us in this Agreement, you retain full ownership of all of your Information and any intellectual property rights or other proprietary rights associated with your Information.

Promotions, Referrals, and Loyalty Programs

KellynKai, at its sole discretion, may make available promotions, referral programs and loyalty programs with different features to any Users or prospective Users. These promotions and programs, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with KellynKai. KellynKai reserves the right to withhold or deduct credits or benefits obtained through a promotion or program in the event that KellynKai determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion or program terms or this Agreement. KellynKai reserves the right to terminate, discontinue or cancel any promotions or programs at any time and in its sole discretion without notice to you.

Currently, KellynKai's referral program ("Referral Program") provides you with incentives to refer your friends and family to become new Users of the KellynKai Platform in your country (the “Referral Program"). Your participation in the Referral Program is subject to this Agreement and the additional Referral Program rules.

Restricted Activities

With respect to your use of the KellynKai Platform and your participation in the Tutoring Services, you agree that you will not:

  1. impersonate any person or entity;
  2. stalk, threaten, or otherwise harass any person, or carry any weapons;
  3. violate any law, statute, rule, permit, ordinance or regulation;
  4. interfere with or disrupt the KellynKai Platform or the servers or networks connected to the KellynKai Platform;
  5. post Information or interact on the KellynKai Platform or Tutoring Services in a manner which is fraudulent, libelous, abusive, obscene, profane, sexually oriented, harassing, or illegal;
  6. use the KellynKai Platform in any way that infringes any third party’s rights, including: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
  7. post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of the KellynKai Platform or any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
  8. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the KellynKai Platform;
  9. “frame” or “mirror” any part of the KellynKai Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other website for any purpose;
  10. modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the KellynKai Platform;
  11. rent, lease, lend, sell, redistribute, license or sublicense the KellynKai Platform or access to any portion of the KellynKai Platform;
  12. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the KellynKai Platform or its contents;
  13. link directly or indirectly to any other websites;
  14. transfer or sell your User account, password and/or identification, or any other User's Information to any other party;
  15. discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation;
  16. violate any of the Referral Program rules if you participate in the Referral Program; or
  17. cause any third party to engage in the restricted activities above.

Tutor Representations, Warranties and Agreements

By providing Tutoring Services as a Tutor on the KellynKai Platform, you represent, warrant, and agree that:

  1. You possess a teacher’s license and are authorized and medically fit.
  2. You will not attempt to defraud KellynKai or Students on the KellynKai Platform or in connection with your provision of Tutoring Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Fares or other payments for the class(s) in question and take any other action against you available under the law.
  3. You will not discriminate against Students with disabilities and agree to review KellynKai's Anti-Discrimination Policies.
  4. You agree that we may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
  5. You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the Tutoring Services.
  6. You will pay all applicable federal, state and local taxes based on your provision of Tutoring Services and any payments received by you.

Intellectual Property

All intellectual property rights in the KellynKai Platform shall be owned by KellynKai absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the KellynKai Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of KellynKai. KellynKai shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

KELLYNKAI and other KellynKai logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of KellynKai in the United States and/or other countries (collectively, the “KellynKai Marks”). If you provide Tutoring Services as a Tutor, KellynKai grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the KellynKai Marks solely on the KellynKai stickers/decals, KellynKai Amp, and any other KellynKai-Branded items provided by KellynKai directly to you in connection with providing the Tutoring Services ("License"). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without KellynKai’s prior written permission, which it may withhold in its sole discretion. The KellynKai logo (or any KellynKai Marks) may not be used in any manner that is likely to cause confusion, including but not limited to: use of a KellynKai Mark in a domain name or KellynKai referral code, or use of a KellynKai Mark as a social media handle or name, avatar, profile photo, icon, favicon, or banner. You may identify yourself as a Tutor on the KellynKai Platform, but may not misidentify yourself as KellynKai, an employee of KellynKai, or a representative of KellynKai.

You acknowledge that KellynKai is the owner and licensor of the KellynKai Marks, including all goodwill associated therewith, and that your use of the KellynKai logo (or any KellynKai Marks) will confer no interest in or ownership of the KellynKai Marks in you but rather inures to the benefit of KellynKai. You agree to use the KellynKai logo strictly in accordance with KellynKai’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that KellynKai determines to nonconforming or otherwise unacceptable.

You agree that you will not: (1) create any materials that use the KellynKai Marks or any derivatives of the KellynKai Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by KellynKai in writing; (2) use the KellynKai Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the KellynKai Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair KellynKai’s rights as owner of the KellynKai Marks or the legality and/or enforceability of the KellynKai Marks, including, challenging or opposing KellynKai’s ownership in the KellynKai Marks; (4) apply for trademark registration or renewal of trademark registration of any of the KellynKai Marks, any derivative of the KellynKai Marks, any combination of the KellynKai Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the KellynKai Marks; (5) use the KellynKai Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.

You agree you will not rent, lease, lend, sell, or otherwise redistribute the KellynKai app, or manufacture, produce, print, sell, distribute, purchase, or display counterfeit/inauthentic KellynKai apps or other KellynKai Marks or (including but not limited to signage, stickers, apparel, or decals) from any source other than directly from KellynKai.

Violation of any provision of this License may result in immediate termination of the License, in KellynKai’s sole discretion, a takedown request sent to the appropriate ISP, or social media platform, and/or a Uniform Domain-Name Dispute-Resolution Policy Proceeding (or equivalent proceeding). If you create any materials (physical or digital) bearing the KellynKai Marks (in violation of this Agreement or otherwise), you agree that upon their creation KellynKai exclusively owns all right, title and interest in and to such materials, including any modifications to the KellynKai Marks or derivative works based on the KellynKai Marks or KellynKai copyrights. You further agree to assign any interest or right you may have in such materials to KellynKai, and to provide information and execute any documents as reasonably requested by KellynKai to enable KellynKai to formalize such assignment.

KellynKai respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the KellynKai Platform infringe upon your copyrights, please view our Copyright Policy for information on how to make a copyright complaint.

Disclaimers

The following disclaimers are made on behalf of KellynKai, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.

KellynKai does not provide tutoring services, and KellynKai is not a tutoring carrier. KellynKai is not a common carrier or public carrier. It is up to the Tutor to decide whether or not to offer a class to a Student contacted through the KellynKai Platform, and it is up to the Student to decide whether or not to accept a class from any Tutor contacted through the KellynKai Platform. We cannot ensure that a Tutor or Student will complete an arranged tutoring service. We have no control over the quality or safety of the tutoring that occurs as a result of the Tutoring Services.

The KellynKai Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the KellynKai Platform and/or the Tutoring Services, including the ability to provide or receive Tutoring Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

We do not warrant that your use of the KellynKai Platform or Tutoring Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the KellynKai Platform will be corrected, or that the KellynKai Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the KellynKai Platform or Tutoring Services.

We cannot guarantee that each Student is who he or she claims to be. Please use common sense when using the KellynKai Platform and Tutoring Services, including looking at the photos of the Tutor or Student you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretense, and we do not accept responsibility or liability for any content, communication or other use or access of the KellynKai Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Tutor or Student prior to engaging in an arranged tutoring service.

KellynKai is not responsible for the conduct, whether online or offline, of any User of the KellynKai Platform or Tutoring Services. You are solely responsible for your interactions with other Users. By using the KellynKai Platform and participating in the Tutoring Services, you agree to accept such risks and agree that KellynKai is not responsible for the acts or omissions of Users on the KellynKai Platform or participating in the Tutoring Services.

You are responsible for the use of your User account and KellynKai expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account or you suspect any other breach of security, you agree to notify us immediately.

It is possible for others to obtain information about you that you provide, publish or post to or through the KellynKai Platform (including any profile information you provide), send to other Users, or share during the Tutoring Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the KellynKai Platform or through the Tutoring Services. Please carefully select the type of information that you post on the KellynKai Platform or through the Tutoring Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).

Opinions, advice, statements, offers, or other information or content concerning KellynKai or made available through the KellynKai Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the KellynKai Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the KellynKai Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.

KellynKai advises you to use the KellynKai Platform with a data plan with unlimited or very high data usage limits, and KellynKai shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the KellynKai Platform.

This paragraph applies to any version of the KellynKai Platform that you acquire from the Apple App Store. This Agreement is entered into between you and KellynKai. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the KellynKai Platform. KellynKai, not Apple, is solely responsible for the KellynKai Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.

State and Local Disclosures

Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.kellynkai.com/terms/disclosures. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.

Indemnity

You will defend, indemnify, and hold KellynKai including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the KellynKai Platform and participation in the Tutoring Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Tutors and Students, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the KellynKai Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; and/or (4) any other activities in connection with the Tutoring Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.

Limitation of Liability

IN NO EVENT WILL KELLYNKAI, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “KELLYNKAI” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE KELLYNKAI PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE KELLYNKAI PLATFORM, THE TUTORING SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE KELLYNKAI PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE TUTORING SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT KELLYNKAI HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. 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.

Term and Termination

This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to KellynKai; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10(a) through (i) of this Agreement. In addition, KellynKai may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Tutoring Services under applicable law, rule, permit, ordinance or regulation; (2) you fall below KellynKai’s star rating or cancellation threshold; (3) KellynKai has the good faith belief that such action is necessary to protect the safety of the KellynKai community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to KellynKai’s reasonable satisfaction prior to KellynKai permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to KellynKai’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.

DISPUTE RESOLUTION AND ARBITRATION AGREEMENT

(a) Agreement to Binding Arbitration Between You and KellynKai.

YOU AND KELLYNKAI MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with KellynKai ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided below, this Arbitration Agreement applies to all Claims (defined below) between you and KellynKai, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and KellynKai’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement.

Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND KELLYNKAI. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the KellynKai Platform, the Tutoring Services, KellynKai promotions, gift card, referrals or loyalty programs, any other goods or services made available through the KellynKai Platform, your relationship with KellynKai, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, background checks performed by or on KellynKai’s behalf, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by KellynKai, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by KellynKai and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.

BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND KELLYNKAI ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.

(b) Prohibition of Class Actions and Non-Individualized Relief.

YOU UNDERSTAND AND AGREE THAT YOU AND KELLYNKAI MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND KELLYNKAI BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST KELLYNKAI, WHICH ARE ADDRESSED SEPARATELY IN SECTION 17(C).

The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.

Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction 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 the Class Action Waiver is unenforceable with respect to any Claim or any particular remedy for a Claim (such as a request for public injunctive relief), then that Claim or particular remedy (and only that Claim or particular remedy) shall be severed from any remaining claims and/or remedies and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims or remedies to the fullest extent possible.

(c) Representative PAGA Waiver.

Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and KellynKai agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 (“PAGA”), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, including under the California PAGA, both you and KellynKai agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative PAGA Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this representative PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative PAGA Waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement; and (iii) any such representative PAGA or other representative private attorneys general act claims must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any Claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the representative PAGA Waiver is unenforceable with respect to those Claims, the Parties agree that litigation of those Claims shall be stayed pending the outcome of any individual Claims in arbitration.

(d) Rules Governing the Arbitration.

Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement.

As part of the arbitration, both you and KellynKai will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.

The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Students or Tutors, but is bound by rulings in prior arbitrations involving the same Student or Tutor to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.

(e) Arbitration Fees and Awards.

The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:

  1. If KellynKai initiates arbitration under this Arbitration Agreement, KellynKai will pay all AAA filing and arbitration fees.
  2. With respect to any Claims brought by KellynKai against a Tutor, or for Claims brought by a Tutor against KellynKai that: (A) are based on an alleged employment relationship between KellynKai and a Tutor; (B) arise out of, or relate to, KellynKai’s actual deactivation of a Tutor’s User account or a threat by KellynKai to deactivate a Tutor’s User account; (C) arise out of, or relate to, KellynKai’s actual termination of a Tutor’s Agreement with KellynKai under the termination provisions of this Agreement, or a threat by KellynKai to terminate a Tutor’s Agreement; (D) arise out of, or relate to, Payments (as defined in this Agreement, including KellynKai’s commission or fees on the Payments), tips, or average hourly guarantees owed by KellynKai to Tutors for Tutoring Services, other than disputes relating to referral bonuses, other KellynKai promotions, or consumer-type disputes, or (E) arise out of or relate to background checks performed in connection with a user seeking to become a Tutor (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Tutor Claims”), KellynKai shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by KellynKai pursuant to the fee provisions above). However, if you are the party initiating the Tutor Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Tutoring Services to Students, unless a lower fee amount would be owed by you pursuant to the AAA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 17(e)(3), the term “Tutor” shall be deemed to include both Tutors and Tutor applicants who have not been approved to teach.
  3. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
  4. At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
  5. Although under some laws KellynKai may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, KellynKai agrees that it will not seek such an award unless you are represented by an attorney or the arbitrator has determined that the claim is frivolous or brought for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure 11(b)).
  6. If the arbitrator issues you an award that is greater than the value of KellynKai’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (k) below, then KellynKai will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.

Unless you and KellynKai agree otherwise, any arbitration hearings between KellynKai and a Student will take place in the county of your billing address, and any arbitration hearings between KellynKai and a Tutor will take place in the county in which the Tutor provides Tutoring Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. Your right to a hearing will be determined by the AAA Rules.

(g) Exceptions to Arbitration.

This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction; (2) a representative action brought on behalf of others under PAGA or other private attorneys general acts, to the extent the representative PAGA Waiver in Section 17(c) of such action is deemed unenforceable by a court of competent jurisdiction under applicable law not preempted by the FAA; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; (4) claims that may not be subject to arbitration as a matter of generally applicable law not preempted by the FAA; and (5) individual claims of sexual assault or sexual harassment in connection with the use of the KellynKai Platform or Tutoring Services. Where these claims are brought in a court of competent jurisdiction, KellynKai will not require arbitration of those claims. KellynKai's agreement not to require arbitration of these claims does not waive the enforceability of any other provision of this Arbitration Agreement (including without limitation the waivers provided in Section 17(b)), or of the enforceability of this Arbitration Agreement as to any other dispute, claim, or controversy.

Nothing in this Arbitration Agreement 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 (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.

(h) Severability.

In addition to the severability provisions in subsections (b) and (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.

(i) Tutor Claims in Pending Settlement.

If you are a member of a putative class in a lawsuit against KellynKai involving Tutor Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your Tutor Claims in that particular class action. Instead, your Tutor Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.

(j) Opting Out of Arbitration for Tutor Claims That Are Not In a Pending Settlement Action.

As a Tutor or Tutor applicant, you may opt out of the requirement to arbitrate Tutor Claims defined in Section 17(e)(3) (except as limited by Section 17(i) above) pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in KellynKai’s Terms of Service where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with KellynKai. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this Arbitration Agreement with respect to Tutor Claims, you may opt out of arbitration with respect to such Tutor Claims, other than those in a Pending Settlement Action, by notifying KellynKai in writing of your desire to opt out of arbitration for such Tutor Claims, which writing must be dated, signed and delivered by electronic mail to support@kellynkai.com.

In order to be effective, (A) the writing must clearly indicate your intent to opt out of this Arbitration Agreement with respect to Tutor Claims that are not part of a Pending Settlement Action, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email containing the signed writing must be sent within 30 days of the date this Agreement is executed by you. Should you not opt out within the 30-day period, you and KellynKai shall be bound by the terms of this Arbitration Agreement in full (including with respect to Tutor Claims that are not part of a Pending Settlement Action). As provided in paragraph 17(i) above, any opt out that you submit shall not apply to any Tutor Claims that are part of a Pending Settlement Action and your Tutor Claims in any such Pending Settlement Action shall continue to be governed by the arbitration provisions that are contained in the applicable KellynKai Terms of Use that you agreed to prior to the effective date of this Agreement.

Cases have been filed against KellynKai and may be filed in the future involving Tutor Claims. You should assume that there are now, and may be in the future, lawsuits against KellynKai alleging class, collective, and/or representative Tutor Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of Tutor Claims with KellynKai under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against KellynKai in an individual arbitration, except for the Tutor Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any Tutor Claims under this Arbitration Agreement.

(k) Optional Pre-Arbitration Negotiation Process.

Before initiating any arbitration or proceeding, you and KellynKai may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and KellynKai. A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.

Confidentiality

You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to KellynKai’s business, operations and properties, information about a User made available to you in connection with such User’s use of the Platform, which may include the User’s name, pick-up location, contact information and photo (“Confidential Information”) disclosed to you by KellynKai for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties, and you agree not to store separate and outside of the KellynKai Platform any User Information obtained from the KellynKai Platform. As a Tutor, you understand that some of Student Information you receive may be protected by federal and/or state confidentiality laws, such as the Health Information Portability and Accountability Act of 1996 ("HIPAA"), governing the privacy and security of protected (patient) health information. In the event that you know a Student, you should not disclose to anyone the identity of the Student or the location that you picked up, or dropped of the Student as this could violate HIPAA. You understand that any violation of the Agreement's confidentiality provisions may violate HIPAA or state confidentiality laws and could result in civil or criminal penalties against you. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of KellynKai in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to KellynKai with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by KellynKai or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of KellynKai; becomes known to you, without restriction, from a source other than KellynKai without breach of this Agreement by you and otherwise not in violation of KellynKai’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to KellynKai to enable KellynKai to seek a protective order or otherwise prevent or restrict such disclosure.

Relationship with KellynKai

As a Tutor on the KellynKai Platform, you acknowledge and agree that you and KellynKai are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and KellynKai expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and KellynKai; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind KellynKai, and you undertake not to hold yourself out as an employee, agent or authorized representative of KellynKai.

KellynKai does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Tutoring Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the KellynKai Platform. You retain the option to accept or to decline or ignore a Student’s request for Tutoring Services via the KellynKai Platform, or to cancel an accepted request for Tutoring Services via the KellynKai Platform, subject to KellynKai’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, KellynKai shall have no right to require you to: (a) display KellynKai’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying KellynKai’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Tutoring Services or otherwise engage in other business or employment activities.

General

Except as provided in Section 17, this Agreement shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret this Agreement and is not intended to create any other substantive right to non- Californians to assert claims under California law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by KellynKai, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to KellynKai shall be given by certified mail, postage prepaid and return receipt requested to KellynKai Corporation, Santa Clara, CA 95051. Any notices to you shall be provided to you through the KellynKai Platform or given to you via the email address or physical you provide to KellynKai during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and KellynKai with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

If you have any questions regarding the KellynKai Platform or Tutoring Services, please contact us through our Help Center.

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