User Agreement

Enter your Welcome to the English Conversations with Joe (“ECWJ”) website! We provide live video chat tutoring sessions for students who want to practice their language skills with a native speaker (the “Service”).  This User Agreement (this “Agreement”) applies to users who visit and use the Service (collectively or individually “Students”), whether through our website (the “Site”) or mobile device using the Zoom video conferencing application (the “App”).  Please read this Agreement carefully, as it (among other things) requires (in Sections 20 and 21) you and ECWJ to arbitrate certain claims instead of going to court and requires that there will not be class actions claims, and also provides for your consent to having your video tutoring sessions be recorded and used by ECWJ (in Section 9.4).

By CLICKING ON “I AGREE TO THE USER AGREEMENT AND PRIVACY POLICY” AND REGISTERING FOR A USER ACCOUNT, you acknowledge that you have read, understood, and agree to be bound by this AGREEMENT, INCLUDING THE ARBITRATION AND CLASS ACTION PROVISIONS OF SECTIONS 20 AND 21 AND VIDEO RECORDING PROVISIONS OF SECTION 9.4.  If you do not agree to ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN please do not  CLICK “ACCEPT,” IN WHICH CASE YOU WILL NOT BE ABLE TO USE THE SERVICE.

NOTE TO PERSONS under 18 years of age:  The SERVICE is not FOR persons under the age of 18.  If you are under 18 years of age, then please do not use this Service.

1. Privacy Policy.  ECWJ’s Privacy Policy, found at http://www.Teaching.JoeGouws.com/static/legal/pp.html, is hereby incorporated into this Agreement.  Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

2. Individual Features and Services.  When using the Service or Site, you will be subject to any additional posted guidelines or rules applicable to specific services, offers and features which may be posted from time to time (the “Guidelines”).  All such Guidelines are hereby incorporated by reference into this Agreement.  Please note that additional and/or different conditions and terms of use may apply to media or services provided through one or more of our partners or business associates and you should refer to those before using such services.

3. Modification.  ECWJ may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time, where such Changes will be effective with respect to existing users: (i) thirty (30) days after ECWJ provides notice of the Changes, whether such notice is provided through the Site, sent to the e-mail address associated with your user account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first.  If you provide written notice that you do not accept a proposed Change or decline to expressly agree to a proposed Change, ECWJ may (in its sole discretion) either allow continued use of the Service or Site under the terms and conditions of the existing agreement without the Changes or terminate this Agreement and your use of the Service, Site or App.

4. Ownership; Proprietary Rights.  The Service and Site are owned and operated by ECWJ.  The videos, content, visual interfaces, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Service and Site (“ECWJ Materials”) are protected by copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.  All ECWJ Materials are the property of ECWJ or its subsidiaries or affiliated companies and/or third-party licensors.  All trademarks, service marks, and trade names are proprietary to ECWJ or its affiliates and/or third-party licensors.  Except as expressly authorized by ECWJ, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the ECWJ Materials.

5. Mobile Services.  Use of the Service requires usage of data services provided by your wireless service carrier.  You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the Service.

6. Services.  

6.1 Service Generally. The Service allows you to request and engage in a video chat session on demand with an available native speaker (“Tutor(s)”) for purposes of practicing conversation skills in English (a “Session”).  You agree to only engage in Sessions for your personal, non-commercial purposes and agree not to record, copy, redistribute, broadcast, publicly perform or publicly display any such Session, except as allowed by this Agreement.  

6.2 Tutor Availability. Sessions are subject to Tutor availability, and ECWJ does not guarantee that any particular (or any) Tutor will be available at any given time.  You hereby acknowledge that all Tutors are independent contractors offering their services to you via the Service and are not employees or agents of ECWJ.  ECWJ makes no representation or warranty regarding the results of engaging in a Session, including without limitation that your experience with a Tutor will meet your expectations or goals.  

6.3 Screening of Tutors.  ECWJ screens all Tutors before allowing them to interact with Students by reviewing a 2-5 minute recording of the Tutor speaking in English and requiring the Tutor to fill out an application that includes a biography.  Tutors are also subject to periodic check-ins with ECWJ personnel to ensure continued quality and interest of the Tutor.  You acknowledge that ECWJ has no duty to verify any stated credentials, experience or qualifications of any Tutor, and that ECWJ does not conduct any screening of Tutors other than as expressly set forth in this Section 7.3.  If you wish to register a complaint regarding any Tutor, please contact ECWJ at help@joegouws.com.

7. Payment.

7. 1 Method of Billing.  Students pay per 30 minute session prior to a Session, in accordance to the agreed fee with ECWJ.  ECWJ may also offer use of the Service through other payment plans, such as bundled subscriptions.  To the extent use of the Service is offered through other payment plans, additional terms and conditions (as displayed to you at the time of purchase or contained in an updated version of this Agreement) may apply. Payment will occur through a third party payment system (e.g., PayPal).  All payment terms and conditions are governed by your applicable agreements with the third party payment system.

7.2 Refunds.  Purchased minutes are non-refundable, and minutes used for a Session are non-creditable.  In the event you have been mistakenly charged for minutes you did not purchase, you may request a refund. If you purchased minutes through the Site, refunds will be handled by ECWJ.  If you feel you have been charged in error, please contact ECWJ at help@joegouws.com.  A refund request must be received by ECWJ within thirty (30) days of the charge in order to be considered. 

7.3 General.  All fees are non-refundable.  All fees are payable in U.S. dollars except as otherwise agreed with by ECWJ. You also agree to pay ECWJ any costs and expenses incurred by ECWJ, including reasonable attorney’s fees, in recovering any fees due hereunder.

8. Video Chat Sessions

8.1 Hardware and Software.  Engaging in a Session requires compatible hardware and may require the download and installation of specified software.  You are solely responsible for acquiring and installing any such hardware and software and for determining compatibility with your system, and hereby assume all risk and liability associated with such hardware and software.  You acknowledge that it is your responsibility to review and comply with all applicable license agreements and other terms and conditions relating to all software you use in connection with Sessions and the Service generally.

8.2 Prohibited Behavior in Sessions.  In connection with your participation in any Session, you agree not to engage in any activity that would infringe, misappropriate or violate any third party intellectual property rights or that is unlawful, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate.  You agree to engage in Sessions for the sole purpose of practicing your language skills.  You acknowledge that ECWJ does not have any duty to monitor Sessions or have any control over the content of a Session, and that you may be exposed to material that you find objectionable in the course of engaging in a Session and that ECWJ shall have no liability in connection therewith.  ECWJ may, at any time, cancel the Service to any user that in the sole judgment of ECWJ violates this Agreement.  To report any inappropriate activity with respect to a Session, please e-mail ECWJ at help@joegouws.com.  

8.3 False Information by Student.  In connection with your use of the Service, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage ECWJ or any third party; (ii) submit material that is unlawful, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; or (iii) post advertisements or solicitations of business.  ECWJ does not endorse any opinion, recommendation, or advice expressed by Tutors or other students, and ECWJ expressly disclaims any and all liability in connection with such opinions, recommendations or advice.  You understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against ECWJ with respect thereto.

8.4 Recording; Content.  Sessions may be recorded or monitored by ECWJ, through our video chat provider.  You hereby consent to: (i) the monitoring or recording of any Session you engage in, including your likeness therein; (ii) ECWJ copying and using such recordings for any business purpose, including without limitation for purposes of Tutor evaluation, Tutor training, dispute resolution and improving the Service; (iii) such recording being made available to the other party to the Session; (iv) such recording being used by ECWJ for advertising and marketing purposes; (v) such recordings being made available for you to review; (vi) such recording being used or disclosed by ECWJ to the extent required by law or legal process or to the extent ECWJ deems necessary for purposes of enforcing or protecting its rights or the rights of a third party.  You hereby waive any rights of publicity, privacy or other rights under applicable law to the extent such rights could be used to prevent ECWJ from using Session recordings as contemplated hereunder, and hereby grant a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sub-licensable, and transferable license under any intellectual property rights you may have in or to any Session recording or content therein to ECWJ to copy, modify, distribute and use such recording and content for its business purposes or as required by law or legal process.

9. Account Data.  

9.1 Registration.  In order to use the Services, Students must register and create an account through the Site.  Registration requires you to: (i) to provide your name and surname, (i) provide an e-mail address, (iii) indicate your current Country and City of domicile, (iv) indicate your native language, and (v) indicate your gender.  Note that ECWJ does not have access to your payment card information.  You agree that the information you provide, at all times, will be true, accurate, current, and complete.  You also agree that you will ensure that this information is kept confidential, accurate and up-to-date at all times.

9.2 Tutor Notes.  Tutors may take notes specific to you that relate to your fluency, interests, gender, age and other information that may be discussed during the Session.  ECWJ personnel and subsequent Tutors may view, utilize and add to the notes.

10. Trademark Restrictions.  You may not utilize framing techniques to enclose any trademark, logo, or other ECWJ Materials without our express written consent.  You may not use any ECWJ logos, graphics, or trademarks, including as part of any meta tags or any other “hidden text,” without our express written consent, except as permitted in this Agreement.

11. Communications.  Under this Agreement, you consent to receive communications from ECWJ electronically.  We will communicate with you by e-mail or by posting notices on the Site.  You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

12. Availability of Service.  ECWJ may make changes to or discontinue any of the media, products or services available within the Site at any time, and without notice.  The media, products or services on the Site may be out of date, and ECWJ makes no commitment to update these materials on the Site.  

13. Notice.  Except as explicitly stated otherwise, legal notices shall be served on ECWJ by internationally recognized overnight courier and be sent to PO Box 3479, Kenmare, Krugersdorp, 1740, South Africa and shall be served on you to the e-mail address you provide to ECWJ during the registration process.  Notice shall be deemed given to ECWJ upon delivery by the courier, and given to you (if sent by e-mail) 24 hours after the e-mail is sent unless ECWJ is notified that the e-mail address is invalid five (5) days after mailing.

14. Member Disagreements.  You alone are responsible for your involvement with Tutors or other Students.  ECWJ reserves the right, but has no obligation, to monitor disagreements between you and Tutors or other Students.

15. Violations; Termination.  You agree that ECWJ, in its sole discretion and for any or no reason, may terminate this Agreement, any member or customer account (or any part thereof) you may have at the Service or your use of the Site, and remove and discard all or any part of your account at any time.  ECWJ may also in its sole discretion and at any time discontinue providing access to the Site, or any part thereof, with or without notice.  You agree that any termination of your access to the Service or Site or any account you may have or portion thereof may be effected without prior notice, and you agree that ECWJ shall not be liable to you or any third-party for any such termination.  ECWJ does not permit copyright infringing activities on the Site, and reserves the right to terminate access to the Service or Site, and remove all content submitted, by any persons who are found to be repeat infringers.  Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service may be referred to appropriate law enforcement authorities.  These remedies are in addition to any other remedies ECWJ may have at law or in equity.

16. Disclaimers; No Warranties. The service, site and any third-party, media, software, services, or applications made available in conjunction with or through the service are provided “as is” and without warranties of any kind either expressed or implied.  To the fullest extent permissible pursuant to applicable law, ECWJ, and its suppliers, licensors and partners, disclaim all warranties, expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. ECWJ, and its suppliers, licensors and partners, do not warrant that the features contained in the service or site will be uninterrupted or error-free, that defects will be corrected, or that the service or site or the servers that make them available is free of viruses or other harmful components. ECWJ, and its suppliers, licensors and partners, do not warrant or make any representations regarding the use or the results of the use of the Service or Site in terms of correctness, accuracy, reliability, or otherwise.  You (and not ECWJ nor its suppliers, licensors or partners) assume the entire cost of any necessary servicing, repair, or correction.  You understand and agree that you download, or otherwise obtain media, material, or other data through the use of the Service or Site at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from such material or data. Certain state laws do not allow limitations on implied warranties or 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 might have additional rights.

17. Indemnification; Hold Harmless.  You agree to indemnify and hold ECWJ, and its affiliated companies, and its suppliers, licensors and partners, harmless from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of the Service or Site, violation of the rights of any other person or entity, or any breach of this Agreement. ECWJ reserves the right, at our own expense, to assume the exclusive defence and control of any matter for which you are required to indemnify us and you agree to cooperate with our defence of these claims.

18. Limitation of Liability and Damages.  Under no circumstances, including, but not limited to, negligence, shall ECWJ or its affiliates, contractors, employees, agents, or third party partners, licensors or suppliers, be liable to you for any special, indirect, incidental, consequential, or exemplary damages that result from your use or the inability to use the ECWJ materials on the service, the service itself, or any other interactions with ECWJ, even if ECWJ or a ECWJ authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, ECWJ’s liability will be limited to the extent permitted by law. In no event shall ECWJ‘s or its affiliates, contractors, employees, agents, or third party partners or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to these terms or your use of the service (whether in contract, tort, warranty, or otherwise) exceed the greater of: (a) the total amounts you have paid to ECWJ hereunder during the six (6) months preceding the date of the claim and (b) fifty (50) U.S. dollars. These limitations shall also apply with respect to damages incurred by reason of any products or services sold or provided to you by third parties other than ECWJ and received by you through or advertised on the service or received by you through any links provided on the service.

19. Arbitration.  Any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought by either party is less than $10,000 shall be resolved via binding non-appearance-based arbitration initiated through an association determined at the time. In any such arbitration, the parties and the appointed association must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; (c) the arbitrator may award injunctive or declaratory relief only in favour of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim; and (d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Agreement shall prevent either party from seeking remedies in small claims court of competent jurisdiction.  

20. Class Action Waiver.  You further agree that any claims subject to arbitration under section 19 must be made in your individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.

21. Miscellaneous.  This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa, without giving effect to any principles of conflicts of law.  You agree that any action at law or in equity arising out of or relating to this Agreement or the Service that is not subject to mandatory arbitration under Section 19 shall be filed only in the courts in and for Johannesburg, Gauteng and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.  A provision of this Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision.  The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same.  A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement.  If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.  This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by ECWJ without restriction.  Sections 1, 2, 5, 6, 8.4 and 10 through 21 will survive any termination of this Agreement.  The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.  This is the entire agreement between us relating to the subject matter herein and shall not be modified except in writing, signed by both parties, or by a change to this Agreement or Guidelines made by ECWJ as set forth in Section 3 above.

22. More Information; Complaints.  The services hereunder are offered by ECWJ, with e-mail: help@joegouws.com.

ECWJ User Agreement_(02012019)_(1) (a).docx

ActiveRSA 02012019v.1