RECITALS
WHEREAS, Client has developed an online platform dedicated to (i) identifying tutoring opportunities to students and pupils at secondary and post-secondary institutions and programs, (ii) connecting tutors who are available to provide online tutoring services to such potential students and pupils, and (iii) allowing payment for tutoring services provided online by tutors to students using the online video features, whether in live or pre-recorded format (the “Platform”);
WHEREAS, Tutor is an individual with expertise in tutoring students and pupils in elementary, secondary and post-secondary environments who wishes to provide tutoring services using the Platform for a fee;
WHEREAS, Client proposes that Tutor use the Platform’s unique “Study Hall” feature to provide Tutor’s online tutoring services, which Study Hall format consists of a number of tutors providing their online tutoring services at established intervals. Within this structure, the Tutor is anticipated to use Tutor’s expertise in a given academic area to create Tutor’s own content and assistance to the students participating in the Study Hall;
WHEREAS, Client wishes that Tutor provide Study Hall services and the Tutor wishes to provide his or her tutoring expertise through Client’s Study Hall Platform in accordance with the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services to Be Performed
Tutor agrees to perform the following services: internet-based remote tutoring services to students (the “Services”) in the Study Hall format described above. Tutor shall provide the Services individually and shall not hire independent contractors, representatives, assistants or other personnel to provide the Services. Tutor shall not use the Platform other than to provide the Services and shall not use the Platform to propose offline tutoring services to students and pupils.
2. Payment
Payment for the services will be provided through the payment system on the Platform. Tutor’s Services will be at the flat rates established by Client and published from time to time on the Platform, except for those Services that are provided outside of the Study Hall format, for which the Tutor and the Student will determine in advance the amount due for each such non-Study Hall session on the Platform. Upon providing tutoring services the Tutor’s payment will be automatically processed via credit card provided by the student to the Client (the “Tutoring Payment”), and the Client will deduct all fees due to the Client in connection with the Tutor and the student’s use of the Platform (the “Client Fee”) directly from the Tutoring Payment. The percentage to be deducted as a Client Fee is 15% and the current Student hourly rate is $16.00 for every ten minute interval spent working with a student. Tutor agrees not to charge students any fees other than through the Platform for the Services rendered to the student on the Platform.
3. Expenses
Tutor shall be responsible for all expenses incurred while performing services under this Agreement. This includes all costs incurred in acquiring teaching supplies, books, content, manuals and subscriptions and includes internet connection fees, taxes, benefits, phone expenses, meals, and all other expenses incurred by the Tutor to provide the Services under this Agreement.
4. Materials and Equipment
Tutor will furnish all materials, equipment, content and tools used to provide the services required by this Agreement.
5. Independent Tutor Status
Tutor is an independent contractor, and Tutor is not, nor shall Tutor be deemed, an employee of Client. In its capacity as an independent contractor, Tutor agrees and represents, and Client agrees, as follows:
(a) Tutor has the right to perform services for others during the term of this Agreement;
(b) Tutor has the sole right to control and direct the means, manner, and method by which the services required by this Agreement, and agrees that all Study Hall tutoring Services will be performed within the structure of the “Study Hall” format that is used on the Platform. Other than complying with the Study Hall format outlined herein, Tutor shall select the methods employed, times the services are provided, and the order in which the services are performed;
(c) The services required by this Agreement shall be performed by Tutor, and Client shall not hire, supervise, or pay any assistants, employees, agents or representatives to help Tutor;
(d) Tutor shall not receive any training from Client in the professional skills necessary to perform the services required by this Agreement; and
(e) Tutor shall not be required by Client to devote full time to the performance of the services required by this Agreement.
Notwithstanding such independent contractor status, Tutor shall not violate any law in providing the Services, nor shall Tutor engage in any acts that would result in any liability to Client for Tutor’s actions or inactions, including in particular any criminal acts or conspiracy to commit any criminal acts, or any lewd, obscene or otherwise objectionable acts, and Tutor shall indemnify and hold harmless Client from any and all such actions and/or attempts to engage therein to the full extent of the law.
6. Business Licenses, Permits, and Certificates
Tutor represents and warrants that Tutor will comply with all federal, state, and local laws in carrying out the services to be performed under this Agreement.
7. State and Federal Taxes
Client will not:
-
withhold FICA (Social Security and Medicare taxes) from Tutor's payments or make FICA payments on Tutor's behalf
-
make state or federal unemployment compensation contributions on Tutor's behalf, or
-
withhold state or federal income tax from Tutor's payments.
Tutor shall pay all taxes incurred while performing services under this Agreement—including all applicable income taxes and self-employment (Social Security) taxes.
8. Benefits
Tutor understands that Tutor is not eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Client.
9. Unemployment Compensation
Client shall make no state or federal unemployment compensation payments on behalf of Tutor. Tutor will not be entitled to such benefits in connection with work performed under this Agreement.
10. Workers' Compensation
Client shall not obtain workers' compensation insurance on behalf of Tutor. Tutor will cover any and all workers' compensation insurance to the extent required by law.
11. Insurance
Client shall not provide insurance coverage of any kind for Tutor in connection with the performance of the services on the Client’s behalf. Tutor shall obtain all insurance and maintain such insurance during the entire term of this Agreement.
12. Indemnification
Tutor shall indemnify and hold Client, its subsidiaries, affiliates, employees and representatives, and their directors, officers, employees and agents, from and against any and all claims, losses, costs, liabilities, damages and expenses, whether direct or indirect, which result from or arise in connection with the Services provided under this Agreement, as well as any breach of the provisions hereof or other failure by the Tutor to provide appropriate care in providing the Services. Tutor acknowledges that Tutor shall be solely responsible for establishing the tutoring content, as well as in selecting candidates for the Services. Client has no obligation to Tutor regarding the selection of suitable students or candidates for Tutor’s Services. Client shall bear no liability to Tutor in connection with such selection, as Client provides an online platform alone, with no independent verification of the student population accessing and requesting tutoring services that Tutor may provide.
13. Term and Termination
This agreement will become effective when signed by both parties and will terminate on the earlier of any of the following:
(a) Client may terminate this Agreement immediately upon written notice to Tutor in the event:
-
Tutor materially breaches this Agreement or Tutor breaches any of the Terms and Conditions governing the use of the Platform;
-
Tutor uses the Platform to generate in-person or other services or other sales of any kind to students;
-
Tutor engages in any wrongdoing in connection with providing the Services, including harassment or any misdemeanor involving abuse, fraud, endangerment, sexual or violent conduct, larceny, plagiarism, cheating or other conduct constituting academic dishonesty (completing assignments or tests on behalf of any student or other violation of conduct policies of any school, institution, academy, university, college or other entity).
(b) Either party may terminate this Agreement at any time by giving thirty (30) days' written notice to the other party of the intent to terminate.
14. Entire Agreement
This is the entire Agreement between Tutor and Client. This Agreement supersedes all prior and contemporaneous understandings and agreements, written and oral, with respect to the subject matter hereof.
15. Modifying the Agreement
This Agreement may be modified only by a writing signed by both parties.
16. Resolving Disputes
Any dispute, controversy or claim arising out of or relating to this Agreement or the Tutor’s relationship with the Client or the termination of such relationship, including, without limitation, the validity, interpretation, performance, breach, alleged breach or termination of this Agreement and any discrimination claim, whether under Federal or state law, shall be arbitrated in the City of Boston before one arbitrator mutually agreeable to both parties in accordance with the rules of JAMS then in effect. If the parties to any such controversy are unable to agree upon a neutral arbitrator, then an arbitrator shall be appointed in accordance with such rules. TUTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL FOR ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TUTOR’S RELATIONSHIP WITH THE CLIENT.
17. Confidentiality
Tutor acknowledges that it will be necessary for Client to disclose certain confidential information regarding students to the Tutor, including identity, address, telephone numbers and contact information (“Personal Information”). Tutor agrees that during the term of this Agreement and at any time following its termination that Tutor will hold all such Personal Information in the strictest confidence and shall protect all such Personal Information from unintentional disclosure to any third party. In the event such Personal Information is disclosed, whether unintentionally or due to any acts of any third parties to obtain access to such Personal Information, that Tutor will immediately disclose such breach to the Client upon notice thereof.
18. Tutor’s Proprietary Information.
All tutoring materials developed by Tutor or used by Tutor in connection with the Services (“Tutoring Content”) shall remain the sole property of Tutor. Tutor grants Client a non-exclusive license to the Tutoring Content and such license expressly includes the Client’s worldwide right to use or distribute the Tutoring Content for any purpose in Client’s sole discretion. Such license shall be non-exclusive, irrevocable, perpetual and royalty-free to reproduce and use the Tutoring Content in any medium. Tutor warrants to Client that Tutor either developed and owns all Tutoring Content or has a license or other authorization to use the Tutoring Content in connection with the Services.
19. No Partnership
This Agreement does not create a partnership relationship. Tutor does not have authority to enter into contracts or any other agreements or undertakings on Client's behalf.
20. Assignment and Delegation
Tutor may not assign or subcontract any rights or delegate any of its duties under this Agreement without Client's prior written approval.
21. Applicable Law
This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without giving effect to conflict of laws principles.
