Instructor Agreement

Last Updated: July 19, 2024

This Proko Instructor Terms and Conditions (the “Instructor Terms”) is by and between Proko LLC, a California Limited Liability Corporation (“Proko”, “we”, “us”, or “our”) having a principal place of business at 8963 Complex Drive, Suite B; San Diego, CA 92123 and you, as an instructor of video art courses (“Instructor”, “you”, or “your”).

These Instructor Terms govern your application to, and participation in, our Services as an Instructor and any and all activities related to your use of the Services as an Instructor, including through offering your instructional goods and services through our Services. These Instructor Terms are incorporated by reference into our Terms of Use, the general terms that govern your use of our Services (these Instructor Terms, together with the Terms of Use, the “Agreement”). 

Please read this Agreement carefully before you register as an Instructor with our Services. By registering as an Instructor on our Services, you confirm that you have read this Agreement and accept and agree to be bound and abide by this Agreement.

PLEASE NOTE THAT THESE TERMS CONTAIN AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS. ACCORDINGLY, YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT (INCLUDING IN A CLASS ACTION PROCEEDING) TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS. INSTEAD, YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR, AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW THE SECTION BELOW ENTITLED “ARBITRATION AND WAIVER OF CLASS ACTION” FOR DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH US.

1. DEFINITIONS

   “Course Price” means the actual price paid for access or use of a Video by a Student (as may have been discounted as a result of a Promotion (if any)), not including any sales, use, excise, and value added taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on the purchase of a Video.

   “Instructor Materials” any and all literary works, dramatic works, and audio, visual, photographic, or other works of authorship created by you and used in either an Instructor Provided Video or Proko Original Video, including, without limitation, any and all drawings, paintings, sketches, illustrations, and models. Instructor Materials does not, however, include any Instructor Provided Videos or Proko Original Videos. 

   “Instructor Provided Video” means a final audio or video recording (other than any Proko Original Videos, as defined below) that you provide or otherwise make available on or through the Services under this Agreement to provide instruction to Students, together with all working files produced in creating the foregoing.

   “Net Sales Amount” means the Course Price, less any fees required to be paid to third parties as a result of the Student’s purchase, such as credit card transaction processing fees, foreign currency exchange fees, and wiring fees and less any amounts allowed or credited on returns of the Video by Students.

   “Personal Information” means information to which access was provided to Instructor on or through the Services in the course of Instructor’s performance under this Agreement that identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers).

   “Proko Original Video” means a final audio and video recording created by you, in whole or in part, for Proko as further set forth between you and Proko in a Statement of Work to create such Proko Original Video, together with any working files produced in creating the foregoing. The term “Proko Original Video” does not include any Instructor Provided Videos.

   “Referral Link” a graphic and/or textual link provided to you by Proko that contains a unique identifier used to identify you and used to refer individuals to an Instructor Provided Video available for purchase on or through the Services. 

   “Services” has the meaning set forth in our Terms of Use.

   “Statement of Work” means a statement of work entered into between Proko and Instructor for the creation of Proko Original Video.

   “Student” means any individual who uses the Services or purchases or views a Video for the purpose of obtaining artistic instruction.

   “Video” means either a Proko Original Video or an Instructor Provided Video.

2. INSTRUCTOR REPRESENTATIONS AND WARRANTIES

   As an Instructor, you are responsible for all content that you post.

   1. You represent and warrant that: (a) you shall provide and maintain accurate account information, including your physical address and country, and all financial account information for payments; (b) you own or have the necessary licenses, rights, consents, permissions and authority to authorize Proko to use Instructor Provided Videos as set forth in this Agreement; (c) your Instructor Provided Videos will not infringe or misappropriate any third-party’s intellectual property rights; (d) you have all the required qualifications, credentials, and expertise (including education, training, knowledge, and skill sets) to teach and offer the services that you offer through your Instructor Provided Videos; and (e) you will respond promptly to students and ensure a quality of service that corresponds with the reasonable expectations of the student.
   2. You further represent and warrant that you shall not: (a) post or provide any inappropriate, offensive, racist, hateful, sexist, pornographic, false, misleading, incorrect, infringing, defamatory, or libelous information or content in any Instructor Provided Videos; (b) post or transmit any unsolicited or unauthorized advertising, promotional material, junk mail, or spam through the Services or to any other user of the Services, including to Students or potential Students; (c) use the Services for any commercial purpose other than to provide art-related tutoring, teaching, and instruction services to Students; (d) except as otherwise mutually agreed with Proko in advance, engage in any activity that would require us to obtain licenses from or pay royalties to any third party, including the need to pay royalties for the public performance of any musical work or sound recording; (e) frame or embed the Services or otherwise circumvent the Services; (f) impersonate another person or gain unauthorized access to another person’s account; or (g) interfere or otherwise prevent other Proko instructors from providing their services or courses.

3. INTELLECTUAL PROPERTY

   1. Ownership of Instructor Provided Videos. Except for the licenses expressly granted to Proko and its users in this Agreement, Proko acknowledges and agrees that as between you and Proko, all right, title, and interest in and to all Instructor Provided Videos is and shall continue to be owned by you.
   2. Ownership of Instructor Materials. You have and retain sole and exclusive ownership of all right, title, and interest in and to the Instructor Materials. For clarity, Proko does not and will not have, acquire, or claim any right, title, or interest in or to any Instructor Materials, regardless of whether such Instructor Materials are used in connection with the creation of an Instructor Provided Video or a Proko Original Video.
   3. License to Instructor Provided Videos. Subject to the terms and conditions of this Agreement, you hereby grant to Proko a perpetual, non-exclusive, fully transferable, sub-licensable, right and license to reproduce, publicly perform, display, transmit, and distribute the Instructor Provided Videos, including to translate, alter, modify, and create derivative works solely to alter the electronic format and resolution as necessary to provide such Instructor Provided Videos through electronic media for the purposes of providing the Services. Without limiting the foregoing, you retain the right to sell and offer for sale the same or similar instructional courses as the Instructor Provided Videos to individuals, including directly from you or on or through other platforms similar to the Services.
   4. Removing Availability to Instructor Provided Videos. You have the right to remove the availability of all or any portion of your Instructor Provided Videos for new purchases from the Services at any time, provided, however, that any rights provided to Students before availability to such Instructor Provided Videos is removed will continue in accordance with the Terms of Use. You acknowledge and agree that such licenses to Students may be perpetual and that the license provided in Section 3.3 shall continue in perpetuity solely with respect to such Students and, provided, further, that Proko will not permit any new Students to purchase a license to such Instructor Provided Videos after the removal of such Instructor Provided Videos or the expiration or termination of this Agreement.
   5. Updating Instructor Provided Videos. Notwithstanding anything to the contrary in this Agreement, you may, at any time, update any Instructor Provided Videos provided that such updates do not materially diminish the quality and value of the Instructor Provided Videos.
   6. Ownership of Proko Original Video. Subject to Instructor’s retained ownership in the Instructor Materials, all intellectual property rights, including copyrights, in and to the Proko Original Video that are created by you pursuant to Statement of Work shall be owned exclusively by Proko. You agree, that with respect to any such Proko Original Video that may qualify as “work made for hire” as defined in 17 U. S. C. § 101, such Proko Original Video is hereby deemed a “work made for hire” for Proko. To the extent that any such Proko Original Video does not constitute a “work made for hire,” you hereby irrevocably assign, without additional consideration, all right, title, and interest throughout the world in and to the Proko Original Video, including all intellectual property rights therein. You hereby waive, to the extent permitted by law, any and all claims you may now or hereafter have in any jurisdiction to any so-called “moral rights” or other similar rights with respect to the Proko Original Video. Upon Proko’s request you shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Proko to prosecute, register, perfect, or record our rights in or to any Proko Original Video. You hereby appoint Proko as your attorney-in-fact with full irrevocable power and authority to take any such actions and execute any such documents as required in the foregoing sentence if you refuse to do so or, within a period deemed reasonable by Proko, otherwise fails to do so.
   7. Use of Trademarks. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive, non-transferable, and non-sublicensable, royalty-free license during the Term to use the other party’s trademarks, service marks, trade names, logos, domain name or other indicator of source, affiliation, or sponsorship, whether registered or unregistered (each, a “Mark”) solely to market and promote the Video. All uses of the Marks, and all goodwill associated therewith, shall inure solely to the benefit of the party that owns the mark. Each party shall not at any time: (a) challenge, or cause, induce, authorize, or assist any person to challenge, the validity of the other party’s Mark; or (b) take any action in derogation of the other party’s rights in that party’s Marks, including using, licensing, or applying to register any Mark that is identical or confusingly similar to any of the other party’s Marks. If either party acquires any rights in any Mark that is identical or confusingly similar to any Mark of the other party, by operation of law or otherwise, the party acquiring such rights shall and hereby does assign, at no additional cost, all such rights to the other party and its successors, together with all associated goodwill and applications and trademarks for such Mark. In addition to the foregoing, Instructor shall not use any Proko Marks in a way that implies that Proko endorses, sponsors, or approves of any Instructor Provided Videos or in a way that violates any applicable law or in connection with an obscene, indecent, or unlawful topic or material.
   8. Trade Practices. Instructor shall not directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or may reasonably be detrimental to the public or the goodwill or reputation of Proko or any of Proko’s goods and services or Proko’s Marks, including any dissemination, display, or use of any false, misleading, or deceptive representations, depictions, or materials for or in connection with any marketing, promotion, or distribution of any Video.

4. STUDENT DATA

   1. You acknowledge and agree that, in the course of your use of the Services, you may create, receive, or have access to the Personal Information of Students. Instructor shall comply with the terms and conditions set forth in this Agreement in its creation, collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information and be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information under its control or in its possession by all Instructor personnel.
   2. Instructor agrees and covenants that Instructor shall: (a) keep and maintain all Personal Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure; (b) not create, collect, receive, access, or use Personal Information in violation of law; (c) use and disclose Personal Information solely and exclusively for the purposes for which the Personal Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Personal Information for Instructor’s own purposes, without Proko’s prior written consent; and (d) not, directly or indirectly, disclose Personal Information to any person other than it’s personnel who need to know such information for the performance of their duties.

5. SUSPENSION OF YOUR USE OF THE SERVICES

   Proko may suspend, terminate, or otherwise deny Instructor’s access and use of the Services, without incurring any resulting obligation or liability if: (a) Proko receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Proko to do so; or (b) Instructor has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (c) Instructor is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities or otherwise engages in any conduct that might reflect unfavorably on Proko or the Services or bring Proko into public disrepute, contempt, scandal, or ridicule; (d) this Agreement expires or is terminated; or (e) any course offered by the Instructor falls below Proko’s quality standards or has a negative impact on the Student experience.

6. COURSE PRICING

   1. Instructor Provided Videos. Subject to Section 6.3, when offering Instructor Provided Videos, you can set the Course Price from within the available pricing limits. Alternatively, you may choose to offer the Instructor Provided Videos for free.
   2. Proko Original Videos. Subject to Section 6.3, the Course Price for Proko Original Video will be set by Proko in its sole discretion.
   3. Discounts/Promotions. Notwithstanding anything to the contrary in this Agreement, Proko may, from time to time, offer promotions the purchase of Videos offered on or through the Services, including, without limitation, promotional discount codes, or offering a Video as part of a discounted bundle together with one or more other products and services offered on or through the Services (collectively, “Promotions”). This allows Proko to assist in increasing your revenue potential by enabling Proko to offer the Videos at a compelling discount as part of targeted promotions. When such Promotions are offered, the Course Price will be decreased by the amount of the discount provided by the applicable Promotion. By entering into this Agreement, you hereby consent to Proko offering such Promotions, and acknowledge and agree that the Course Price and your Revenue Share may be decreased as a result of such Promotions.
   4. Referral Links. Proko may make one or more Referral Links available to you in order to promote the Instructor Provided Videos. Your use of any Referral Links is subject to terms and conditions of Proko’s Affiliate Marketing Program, provided, however, that any commission payments described in the Affiliate Marketing Program will not apply to sales of Instructor Provided Videos as a result of the Referral Link and will instead be as described in Section 7.1.
   5. Sales taxes. The prices for Instructor Provided Videos and Proko Original Video are exclusive of taxes. All sales, use, excise, and value added taxes and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on the purchase of any Instructor Provided Videos or Proko Original Video will be added to the Student’s total to purchase the applicable Video.

7. PAYMENTS; REVENUE SHARE

   1. Revenue Share. Except as otherwise mutually agreed between Instructor and Proko in writing, Instructor will receive portion of the Net Sales Amount for each Video sold to a Student as follows: (a) for Instructor Provided Videos, the sum of ninety-five percent (95%) of the Net Sales Amount for purchases made as a result of a Student’s use of a Referral Link for the Instructor Provided Video, and seventy percent (70%) of the Net Sales Amount otherwise; and (b) for Proko Original Videos, the sum of fifty percent (50%) of the Net Sales Amount (collectively, the “Revenue Share”). Subject to the rest of this Section 7, Proko shall make any Revenue Share payments promptly after the end of the month in which we receive payment of the Course Price from the applicable Student.
   2. Taxes. Revenue Share amounts and other sums payable by Proko to Instructor are exclusive of all other taxes. Instructor shall provide any identifying information or tax documentation (such as a US W-9 or W-8) necessary for Revenue Share payments, and Proko may, but is not otherwise required to, withhold appropriate taxes from Instructor’s payments. Proko further reserves the right to withhold payments or impose other penalties if Proko does not receive proper identifying information or tax documentation from Instructor. Instructor shall be solely responsible for any and all taxes imposed on Instructor’s income.
   3. Receiving Payments. Instructor represents and warrants that the financial account information provided to Proko is true, accurate, and complete. Instructor is solely responsible for determining if it may be paid by a U.S. Company. Proko reserves the right to not pay any Revenue Share in the event of identified fraud, violations of intellectual property rights, violation of law, or other violations of this Agreement. In the event Proko cannot settle funds into Instructor’s payment account after the period of time set forth by Instructor’s state, country, or other government authority in its unclaimed property laws, Proko may process the funds due to Instructor in accordance with Proko’s legal obligations, including by submitting those funds to the appropriate government authority as required by law.
   4. Refunds and Processing Fees. The transaction processing fees will be split between Instructor and Proko in the same proportion as the Revenue Share for the applicable sale. For example, if the Revenue Share for a sale is 70% to the Instructor, the Instructor will bear 70% of the transaction processing fee for that sale, and Proko will bear 30%. In the event of a refund to a Student: (a) The Instructor's Revenue Share for the refunded purchase will be deducted from future payments to the Instructor. (b) The transaction processing fees associated with the original purchase and the refund will be split between Instructor and Proko in the same proportion as the Revenue Share for the applicable sale, consistent with the split of the original transaction processing fees. (c) If the refund occurs in a different payment period from the original sale, the deductions will be applied to the next Revenue Share payment.

8. EXPORT COMPLIANCE

   Instructor represents and warrants that he/she is not restricted from using the Services under U.S. sanctions or export laws (as an individual or as an officer, director, or, or controlling shareholder of any entity on whose behalf you use the Services). Instructor shall notify Proko immediately, but in no event longer than twenty-four (24) hours, if Instructor becomes subject to such a restriction; provided, however, that in such an event Proko will have the right to immediately terminate this Agreement with no further obligations or liability to you (but without prejudice to any outstanding obligations to Proko, if any). Instructor shall not use the Services to conduct or facilitate any transaction with any other individual known to be subject to such a restriction. Instructor may not remove, export, or allow the export or re-export of the Services (or any product thereof, including any technical data or Video) outside the U.S. in violation of any restriction, laws, or regulations of the U.S. or any other applicable country.

9. TERM; TERMINATION

   1. Term. The term of this Agreement (the “Term”) commences on the first day that you are accepted as an Instructor and continues thereafter in perpetuity, unless and until sooner terminated as expressly provided herein.
   2. Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement, Proko may terminate this Agreement or any Statement of Work, by written notice to Instructor effective as of the date specified in such notice, if Instructor materially breaches this Agreement or such Statement of Work and such breach either: (a) cannot be cured; or (b) being capable of cure, remains uncured ten (10) days after Instructor receives written notice thereof.
   3. Termination for Bankruptcy. Either party may terminate any and all of this Agreement or any Statement of Work, effective immediately, by written notice to the other party if the other party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (c) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, if such proceeding is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   4. Termination for Convenience. Either party, in its sole discretion, may terminate this Agreement at any time, without cause and without causing any breach or incurring any additional obligation, liability or penalty, by providing at least thirty (30) days’ prior written notice to the other party.
   5. Affect of Termination. Upon any expiration or termination of this Agreement, (a) Proko may disable all Instructor access to the Services; (b) subject to Section 3.3, availability of Instructor Provided Video for new purchases by Students will be removed; and (c) Instructor shall no longer be eligible to receive any Revenue Share. Proko shall use commercially reasonable efforts to make any remaining payments that are owed to instructor promptly after the effective date of any termination pursuant to Section 9.2.

10. INDEMNIFICATION

    Instructor agrees to defend, indemnify and hold harmless Proko, its affiliates, licensors, other instructors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement, including, but not limited to, your Video.

11. LIMITATIONS OF LIABILITY

    EXCEPT FOR ANY OBLIGATION TO PAY REVENUE SHARE, IN NO EVENT WILL PROKO, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDERHAND LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, AND INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA (INCLUDING ANY CONTENT), AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

12. ARBITRATION AND WAIVER OF CLASS ACTION

    YOU AND PROKO ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

    The arbitration will be administered by the Judicial Arbitration and Mediation Services, Inc. (JAMS) under the JAMS Comprehensive Arbitration Rules and Procedures. The Comprehensive Arbitration Rules and Procedures are available online at jamsadr.com/rules-comprehensive-arbitration/ then in effect, except as modified by this Section 12. The Federal Arbitration Act will govern the interpretation and enforcement of this section.

    The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.

    You agree to an arbitration on an individual basis. IN ANY DISPUTE, NEITHER YOU NOR PROKO WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST EITHER OF THE PARTIES OR OTHER THIRD PARTIES IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

    This arbitration clause shall survive the termination of this Agreement. If any portion of this arbitration provision is held to be illegal or otherwise unenforceable, the remainder of this arbitration provision will still apply.

13. GOVERNING LAW AND JURISDICTION

    All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). If, for any reason, arbitration (as set forth in Section 12) is unavailable or otherwise proceeds in court other than in arbitration, any legal suit, action or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and/or County of San Diego, although Proko retains the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. The parties irrevocably and unconditionally waive any objection to venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.

14. MISCELLANEOUS

    1. Changes to this Agreement. Proko may revise and update this Agreement from time to time in its sole discretion. If Proko makes any material change to this Agreement, it will notify Instructor using prominent means, including through sending an email notice to the email address specified in Instructor’s account or by posting a notice on the Services. All changes are effective immediately when posted unless otherwise specified, and apply to all use of the Services thereafter. Instructor’s continued use of the Services following the date that the changes to this Agreement becomes effective constitutes acceptance by you to those changes.
    2. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
    3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing. If sent to Proko, such Notice shall be addressed at the addresses set forth on the first page of these Instructor Terms (or to such other address that may be designated by Proko from time to time in accordance with this Section). If sent to Instructor, such Notice shall be addressed to the address set forth in Instructor’s account. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally or internationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day (as determined by the commercial banks in San Diego, California, USA) if sent after normal business hours of the recipient; or (d) on the third (3rd) day after the date mailed, by certified or registered mail (in each case, return receipt requested, postage pre-paid). Notwithstanding the foregoing, day-to-day communications and notifications under this Agreement may be made through other reliable means, including through email.
    4. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    5. Entire Agreement. These Instructor Terms, together with Proko’s Terms of Use, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter. These Instructor Terms only apply to the extent you use the Services as an instructor and not in any other capacity. To the extent these Instructor Terms apply to your use of the Services, in the event of any inconsistency between the statements in the body of these Instructor Terms, any applicable Statement of Work (unless otherwise explicitly stated in such Statement of Work), and Proko’s Terms of Use, the statements in the body of these Instructor Terms shall control.
    6. Waiver. No waiver by Proko of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Proko. No waiver by Proko shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure by Proko to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    7. Relationship of the Parties. Nothing herein shall be construed to create an agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between you and Proko. Instructor shall be independent contractor pursuant to this Agreement. Instructor shall not have any express or implied right, power, or authority to assume or create any obligations on behalf of or in the name of Proko or to bind Proko to any contract, agreement, or undertaking with any third-party.
    8. Survival. The expiration or termination of this Agreement for any reason will not release either party from any liabilities or obligations set forth herein which (a) the parties have expressly agreed will survive any such expiration or termination; or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. In addition to the foregoing, upon termination or expiration of this Agreement, the parties’ respective obligations under Section 1, Section 3, Section 4, Section 7, Section 8, Section 9.5, Section 10, Section 11, Section 12, and this Section 14.8 shall survive such expiration or termination, and Section 2 shall survive for a period of one (1) year following such expiration or termination.
    9. Assignment. Due to the personal nature of the performance to be rendered by Instructor, Instructor shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Proko’s prior written consent. Proko may freely align its rights and obligations under this Agreement at any time.