TOM™
TUTOR TERMS AND CONDITIONS

These Terms and Conditions for Tutors (“Agreement”) are entered into by and between Tutoring Online Marketplace, LLC (“TOM”) and you (“you” or “Tutor”). For purposes of this Agreement, any services provided by TOM through the Site to you shall be included in “use” of the Site. You and TOM may also be referred to individually as a “Party” and, collectively, as the “Parties.”

IT IS ESSENTIAL THAT YOU READ THESE TERMS AND CONDITIONS
OF SERVICE AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.

THESE TERMS AND CONDITIONS MAY CHANGE FROM TIME TO TIME.
YOUR CONTINUED USE OF THIS SITE AFTER TOM MAKES CHANGES IS

DEEMED TO BE ACCEPTANCE OF THOSE CHANGES, SO PLEASE CHECK THESE

TERMS AND CONDITIONS POLICY PERIODICALLY FOR UPDATES.

YOUR USE OF THIS SITE INDICATES YOU HAVE READ AND
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT.

WHEREAS, TOM has developed, owns and operates the platform known as TUTORINGTOM.COM and such other related online and physical sites as TOM may create and partner with (collectively, the “Site”) which provides individuals (each, a “Student”) and individuals to assist Students in understanding various subject matters and improving their skills (each, a “Tutor”) an opportunity to connect with one another; and

WHEREAS, the Site gives Students an opportunity to obtain tutoring in a variety of subjects at different levels by posting his/her needs and receiving proposals from and/or inviting specific Tutors based on the profile of each Tutor, and then interviewing prospective Tutors to aid in making a final choice.

THEREFORE, the Parties agree as follows:

1 DEFINITIONS

In addition to terms defined throughout this Agreement, the following terms shall have the meanings indicated.

“Affiliate” means a person, natural or legal, that (a) is owned or controlled, directly or indirectly, by a Party, (b) owns or controls, directly or indirectly, a Party (c) is under common control as a Party or (d) is a familial relative of a Party.

“Engagement” means an agreement between a Tutor and a Student for either a Session or a Series.

“Intellectual Property Rights” means TOM’s sole and exclusive ownership of all trademarks, copyrights, patents, coding and programming, and trade secrets created or used in connection with the Site, TOM or its business.

“Link” means an online video connection provided by TOM to the Tutor and Student to conduct a Session.

“Placement Fee” means the fee charged by TOM, which is Twenty Percent (20%) of the Tutor Fee, for each Engagement.

“Posting” means a description placed on the Site by a Student (or a parent/guardian) that may include the Student’s age, subject matter needing tutoring and grade level, time availabilities and the rate the Student desires to pay for a Tutor. If the Student is a minor, the Student’s registration will include a validation statement by the Student’s parent or guardian that he/she is aware of and approves the Posting, and has agreed to be responsible for all payments due in accordance with the terms and conditions of the Site.

“Scheduled Start Time” means the time agreed upon by a Tutor and Student for the commencement of a Session.

“Series” means more than one Session paid for together as a package.

“Services” means the work of a Tutor in tutoring a Student.

“Session” means a single period during which a Tutor provides the Services to a Student via a Link.

“Session Comments” means the notes and reviews a Tutor or a Student makes with respect to a specific Session.

“Student” means the person who is requesting and will receive the Services. If the Student is a minor, references to Student shall include such Student’s parent(s) or legal guardian(s).

“Tutor” means the person providing the Services. If the Tutor is a minor, references to Tutor shall include such Tutor’s parent(s) or legal guardian(s).

“Tutor Fee” means the amount upon which you and a Student agree will be paid for a Session or Series.

2 REGISTRATION

There is no cost for you to apply for an account and register as a Tutor. TOM reserves the right to review and approve or reject, in its sole and absolute discretion, each application. Your application includes a consent to permit TOM or its authorized agent to do a background check on you and/or verify the contents of your application at no charge to you; provided, however, nothing herein shall require TOM to do a background check or verify the contents of your application. Upon acceptance of your application by TOM, you will be registered as a Tutor on the Site.

Your application for registration as a Tutor may include your personal information, background, experience, subjects you would like to teach, your time availability, languages spoken and desired Tutor Fee. If you are under 18 years of age, your parent or guardian must acknowledge and validate the registration, and agree to these terms and conditions on your behalf.

There is no cost for a Student to register or make a Posting (or be registered and have a Posting made by a parent or guardian). If the Student is a minor, the credit card used to pay for the Sessions will be that of a parent or guardian of such Student. Postings may include the Student’s age, subject matter needing tutoring and grade level, time availabilities and the rate the Student desires to pay for a Tutor.

3 PERSONAL INFORMATION

As described more fully in the TOM Privacy Policy…

YOUR PERSONAL AND CONTACT INFORMATION WILL NEVER BE PUBLICLY AVAILABLE ON OR THROUGH THE SITE.

If you choose to provide personal contact information to a Student, that is your choice.

HOWEVER,

(a) it is a violation of these terms and conditions to provide Services to any person you meet on or through the Site other than through a Link; and

(b) TOM cannot provide any of the benefits described in these and terms and conditions with respect to any Services provided other than through a Link; and

(c) violation of these terms and conditions may, in the sole and absolute discretion of TOM, result in your temporary suspension from being able to access the Site and/or Students, actual or potential, or termination of this Agreement resulting in permanent loss of access to the Site and/or Students, actual or potential.

4 GETTING STUDENTS

4.1 Procedure

Once approved by TOM, your profile will be available on the Site for Students to browse or search by various criteria such as subject matter and such other criteria or filters as TOM may add.

Students can invite any Tutor he, she or the parent(s) think might be appropriate to interview.

Additionally, you will be able to browse Postings and make an offer to such Student.

Once communication has been initiated by either you or the Student, if you both want to communicate, you may do so through the Site.

4.2 Requirements

You must have:

(a) a Stripe account linked to the Site;

(b) a computer or similar device that has a touch screen and camera/microphone;

(c) a Zoom account with recording capability;

(d) a stable Internet connection; and

(e) a stylus (optional but preferred).

5 CONDUCTING A SESSION

5.1 Commencement

Upon you and a Student agreeing that you will provide Services to the Student:

(a) the credit card of the Student (or, in the case of a minor, his/her parent or guardian who agreed to pay for the Sessions) will be charged for the full amount of the Tutor Fee to pay for the Session or Series;

(b) upon agreement as to a schedule for a single Session, a Link through which you and the Student will conduct the first Session will be provided by TOM; and

(c) in the case of a Series, a Link will be provided approximately Twenty Four (24) hours prior to each Session based on the schedule agreed by you and the Student.

You may not conduct any Session other than through A Link.

Once a Session has commenced through the Link, it is YOUR responsibility to watch the time. If you choose to exceed the time for such Session as scheduled and paid for, you will not receive any additional payments for such additional time.

5.2 Recordings

YOU MUST RECORD all Sessions AND, IF REQUESTED BY TOM, PROVIDE A COPY OF ANY RECORDING TO TOM for purposes including but not limited to resolution of complaints or disputes.

Your failure to record a Session or to provide an unedited and unmodified copy of a recording as requested by TOM shall, in addition to any other remedies available to TOM for breach of this Agreement, be grounds for immediate suspension or termination in the sole and absolute discretion of TOM.

More information about recordings and TOM’s use of recordings is described in Section 3 of the Privacy Policy.

5.3 Feedback

Upon conclusion of each Session, the Student may be prompted to make Session Comments.

Session Comments by the Student are optional.

There are no ratings of Tutors by Students. Only Session Comments.

Session Comments about you are the property of TOM for which you hereby grant the unlimited right of use and publicity.

Session Comments will first be viewable by you and TOM. If Session Comments are determined by TOM to be lewd, offensive, racist, bullying, hateful or threatening, or encouraging or condoning any of the foregoing, TOM will delete such Session Comments. In addition to any deletions by TOM, you will have the ability to delete two (2) Session Comments per month at your sole discretion. Session Comments will be viewable by the public on the Site five (5) days after submission. You can delete a Session Comment prior to it becoming available on the Site or at any time after by writing to TOM at [email protected].

6 TUTOR FEES

6.1 Amount

(a) The Tutor Fee is entirely up to you and your Student. You shall indicate the desired Tutor Fee in your profile but you may adjust the Tutor Fee with each Student based on the circumstance of each Engagement.

(b) The Tutor Fee will be paid by or for the Student prior to commencement of the Session or Series.

(c) The amount payable to you will be the Tutor Fee less the Placement Fee and less sales taxes, value added taxes or similar taxes, if any (collectively, the “Net Tutor Fee”). The Placement Fee will include the costs of credit card processing and sales tax or value added tax (if any).

6.2 Payment

(a) The Tutor Fee will be paid by or for the Student.

(b) The Net Tutor Fee for a Session will be available to you immediately upon payment by the Student.

(c) The Net Tutor Fee will be delivered to you by the manner and to the destination provided by you.

(d) All payments to you will be in US Dollars.

6.3 Rescheduling

(a) Rescheduling by You. If you need to reschedule, you may submit a request to reschedule and propose a new time to Student. If rescheduling is necessary, you are encouraged to do so with as much advance notice to the Student as possible. If the Student agrees or if the Student proposes a different rescheduled Session and you agree, TOM will provide a new Link to you and the Student for the rescheduled Session. If you and the Student cannot agree on a rescheduled Session, the Session in question will be cancelled. Excessive rescheduling may, in the sole discretion of TOM, result in suspension or termination of your account.

(b) Rescheduling by a Student. If a Student wants to reschedule, he/she may submit a request to reschedule and propose a new time to you. If you agree or if you propose a different rescheduled Session and the Student agrees, TOM will provide a new Link to you and the Student for the rescheduled Session. In the event of a dispute raised by the Student, TOM will direct the Student to file such dispute with Stripe, but you are encouraged to work with the Student within reason to reschedule to preserve the goodwill of both you and the Site. TOM shall have no responsibility or liability to you, and you waive any claims against TOM, in the event of a charge back or other action from Stripe including but not limited to account cancellation. Excessive rescheduling may, in the sole discretion of TOM, result in suspension or termination of the Student’s account.

6.4 Lateness and No-Shows.

You are required to connect to the Link within Five (5) minutes of the Scheduled Start Time. In the event of a dispute raised by the Student, TOM will direct the Student to file such dispute with Stripe, but you are encouraged to work with the Student within reason to reschedule to preserve the goodwill of both you and the Site. TOM shall have no responsibility or liability to you, and you waive any claims against TOM, in the event of a charge back or other action from Stripe including but not limited to account cancellation. Excessive lateness or no-shows may, in the sole discretion of TOM, result in suspension or termination of your account..

6.5 Cancellations

In the event of a dispute raised by the Student, TOM will direct the Student to file such dispute with Stripe, but you are encouraged to work with the Student within reason to reschedule to preserve the goodwill of both you and the Site. TOM shall have no responsibility or liability to you, and you waive any claims against TOM, in the event of a charge back or other action from Stripe including but not limited to account cancellation. Excessive cancellations may, in the sole discretion of TOM, result in suspension or termination of your account.

7 RELATIONSHIP WITH TOM AND THE STUDENT

You are an independent contractor with respect to the Student. Nothing in this Agreement is intended to or should be construed to create a contractor, partnership, joint venture, franchisor/franchisee or employer-employee relationship between you and TOM.

While the Site provides a platform through which you and a Student may meet and interact, you will be providing your Services to the Student directly, not to TOM. You are solely and exclusively responsible for the quality and accuracy of the Services you provide to a Student.

You shall not, in any manner or respect, represent, suggest or convey the impression that you are an employee, contractor or agent of TOM. If any person has or reasonably appears to believe or be under the impression that you are an employee, contractor or agent of TOM, it is your responsibility to communicate to such person that you are not.

No portion of the Net Tutor Fee will ever be in the possession of TOM. Consequently, TOM will not and cannot withhold any portion of the Net Tutor Fee for application toward income taxes payable by you in any jurisdiction. You are solely and exclusively responsible (a) for all taxes payable with respect to income earned through the Site; (b) for obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and you acknowledge that you are not covered by or eligible for any insurance from TOM; and (c) for ensuring that you comply with any licensing authority’s rules or practices, if any are applicable.

8 STANDARDS OF CONDUCT

8.1 In General.

While you, as an independent contractor of the Student, will provide the Services in any manner which you deem appropriate to achieve the desired result, TOM requires of all Tutors, regardless of the field or expertise, the following:

(a) You will, at all times and in all respects, be professional and courteous.

(b) You will strive to listen carefully to the Student, both the literal words and what the Student means, if he/she does not or cannot properly verbalize his/her needs and goals.

(c) You will not mislead the Student for the purpose of encouraging the Student to purchase more Sessions than are reasonably necessary to accomplish the Student’s objectives.

(d) You will not ask or answer questions of a personal nature, except as they may be reasonably necessary for you to perform the Services.

(e) You will not ask questions or make comments of a discriminatory or offensive nature.

(f) You will not ask for or use personal and direct Student contact information.

8.2 Academic Honesty Policy.

If you believe the Student wants you to do the Student’s work for them, you should discontinue Services for such Student. You should err on the side of caution when there is any doubt as to the appearance of cheating. You can report the issue to TOM. If the academic honesty policy is violated, Students or Tutors could have their access to the Site suspended or terminated.

8.3 Use of the Site

At no time will any person, Tutor or Student, ever use the Site to display, upload, communicate or in any way transmit anything that is lewd, offensive, racist, bullying, hateful or threatening, or that encourages or condones any of the foregoing.

Any violation of this policy shall be immediately reported and, whether or not reported, such violation shall, in the sole discretion of TOM, be grounds for immediate suspension from the Site or termination of this Agreement.

9 REPRESENTATIONS AND WARRANTIES

You represent and warrant that:

(a) EITHER:

i. you are eighteen (18) years of age or older and authorized to enter into this Agreement on behalf of yourself, OR

ii. you are the parent or guardian of the Tutor who at least fourteen (14) years of age but not yet eighteen (18) years of age and you personally agree to abide by and take full responsibility for compliance by yourself and the Tutor, of whom you are the parent or guardian, with the terms and conditions of this Agreement, in which case you have signed the Parental Acknowledgment attached as Exhibit 1 AND you will be present at and/or able to monitor each Session;

(b) the information provided in establishing your account with TOM is true and accurate in all respects, and that you will immediately update your account should any account information change;

(c) you know of no circumstances in which this Agreement and your association with TOM would tend to have a materially adverse effect on the reputation and image of TOM and/or the Site; and

(d) you have no ownership interest in or claims to any of the Intellectual Property Rights of TOM.

10 CONFIDENTIAL INFORMATION

10.1 What is Confidential Information

Tutor recognizes that it may obtain, or the Student or TOM (each, an “Owner”) may furnish Tutor, orally or in writing, certain non-public, confidential, and proprietary information (collectively, “Confidential Information”). Confidential Information includes, but is not limited to: (a) information regarding TOM and its business; (b) trade secrets, methodologies and business plans; (c) personal information; (d) information regarding relationships, customers or employees, or the manner in which TOM conducts its business; (e) information and any idea in whatever form, tangible or intangible, whether disclosed to or learned by Tutor pertaining in any manner to the business of TOM (or any affiliate of it that might be formed) or to TOM’s consultants or business associates; and (f) any other information held by or concerning the Student or TOM which is not readily available to the public. Tutor acknowledges that TOM Student has developed, compiled and otherwise obtained, and will develop, compile and otherwise obtain, often at great expense, its Confidential Information, which has great value to the Student.

Tutor recognizes that the Owner may receive from third parties their Confidential Information subject to a duty on the Owner’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Tutor agrees that, upon notice of such third-party obligation, Tutor owes the Owner and such third parties a duty to hold all such Confidential Information in the strictest confidence and not to disclose it to any person or entity or to use it for the benefit of anyone other than for the Owner or such third party (consistent with the Owner’s agreement with such third party) without the express written authorization of the Owner.

10.2 Non-Disclosure and Non-Use of Confidential Information

Tutor promises and agrees to hold Confidential Information in strict confidence and in trust for the sole benefit of the Owner, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as may be reasonably necessary for the performance of the Services, without the Owner’s prior written consent. Tutor shall not disclose any Confidential Information to any person or entity. In handling the Confidential Information, Tutor shall use not less than the same degree of care it uses to protect its own confidential information, but in any event not less than a reasonable degree of care.

10.3 Exclusions and Exceptions

Confidential Information does not include information that (1) is or becomes publicly known through lawful means; (2) was rightfully in Tutor’s possession or part of Tutor’s general knowledge prior to the effective date of this Agreement; or (3) is disclosed to Tutor without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from the Student.

If Tutor is required to disclose Confidential Information by virtue of a lawful court order, subpoena or similar legal request, Tutor will promptly notify the Owner in writing of such requirement and cooperate so that the Student may seek an appropriate protective order. Tutor will not use, copy, publish, distribute or summarize any Confidential Information except as necessary to carry out the activities contemplated herein.

10.4 Use of Confidential Information in Resolving Disputes

TOM utilizes state-of-the-art encrypted security measures (including but not limited to username and password protections) to protect the security and confidentiality of communications, recordings (if any) and messages (collectively, “Communications”) transmitted via and/or stored by TOM. In the event of a dispute between you and your Student submitted to Stripe or the application of mandatory mediation as provided hereinbelow, Stripe may request or TOM may determine, in its sole and absolute discretion, that a resolution of such dispute necessitates a review of certain of such Communications. If and to whatever extent TOM becomes aware of any Confidential Information as between Tutor and a Student contained in the Communications, TOM will treat such Confidential Information in the same manner as required of the Tutor hereinabove and will use such Confidential Information, if at all, solely for the purpose of providing information to Stripe for the purpose of resolving such dispute between you and a Student, or for the purpose of resolving such dispute between you and TOM.

11 INTELLECTUAL PROPERTY

TOM is the sole and exclusive owner of all Intellectual Property Rights. You promise and agree to not, directly or indirectly, take any action or assist any other person in taking any action to challenge TOM’s exclusive ownership of the Intellectual Property Rights or to register any trademarks, copyrights or patents that may infringe on TOM’s Intellectual Property Rights.

TOM grants you the limited license to use TOM’s name and trademark(s) to indicate your availability through the Site and your experience on the Site as part of your bio or portfolio.

12 NON-CIRCUMVENTION

You promise and agree that you shall not provide services, directly or indirectly, outside the Site and without payment to the Site as intended by TOM, to any Student to whom you were introduced by or through the Site.

13 SECURITY

You are solely and exclusively responsible for the security of your username and password. TOM shall be entitled to rely on the authority of any person using your username and password in providing information to and taking all actions that the authorized user would be entitled to take or direct.

14 WARRANTY DISCLAIMER

TOM makes no representations or warranties as to the Site. To the maximum extent of the law, TOM disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for particular purpose, title and non-infringement. The Site is provided “as is.” Further, TOM makes no representations or warranties that you will receive any Students from the Site or generate any revenue from the Site.

15 WAIVER

You expressly and unconditionally waive any and all claims against TOM, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:

(a) any unauthorized person uses your username and password to the Site for any purpose and with any result, including but not limited to making changes or redirecting Tutor Fees;

(b) the Site is partially or totally inoperative or inaccessible;

(c) your use of the Site;

(d) any act or action that would constitute Cause by you, as such term is defined hereunder;

(e) viruses or other malicious software are transferred to your computer by using the Site;

(f) there are bugs, errors or inaccuracies in the Site;

(g) third-party content, actions or inactions on or with respect to the Site;

(h) claims related to the manner of resolution or outcome of a dispute as between you and a Student;

(i) claims that other Tutors are getting Engagements or that you are not getting enough Engagements;

(j) a suspension or other action taken with respect to your account by TOM;

(k) any claim relating to a change in this Agreement by TOM;

(l) withholdings, deductions or offset in connection with payment of fees due to applicable tax or currency control restrictions;

(m)deletion, corruption or destruction of any information, notes, data, communications or documents in connection with or as between you and a Student or you and TOM.

For purposes of this section, any reference to “TOM” shall include TOM’s Affiliates and the owners, officers, employees, agents and contractors of each.

No waiver by TOM of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by TOM in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.

16 INDEMNIFICATION

TOM and its affiliates, owners, principals, officers, employees and agents shall be referred to, collectively, as “TOM Indemnitees.”

16.1 Your Obligation to Indemnify

Tutor agrees to and shall indemnify, defend (with legal counsel reasonably acceptable to TOM Indemnitees) and hold TOM Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:

(a) any misrepresentation by, or breach of any covenant or warranty or representation of Tutor contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by Tutor hereunder;

(b) any non-fulfillment of any agreement on the part of Tutor under this Agreement;

(c) any suit, action, proceeding, claim or investigation against TOM Indemnitees which arises from or which is based upon or pertaining to Tutor’s acts or omissions including but not limited to use of the Site, violation of Standards of Conduct or any matter that constitutes Cause in connection with the right of a Student to terminate this Agreement;

(d) any Services provided by you;

(e) any injury to person or property caused, all or in part, by you including but not limited to emotional or psychological injury or distress;

(f) failure to comply with the terms of this Agreement;

(g) failure to comply with applicable law;

(h) negligence, willful misconduct, harassment, indecent exposure or fraud;

(i) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you;

(j) failure to pay appropriate taxes for yourself (including but not limited to withholding taxes, if any); and

(k) any claim for violation of any applicable rule or code of conduct or ethics other than those include in this Agreement; and

(l) your withholding of information regarding or your misrepresentation of your status in regard to your representations and warranties.

16.2 Indemnification Process

If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against TOM Indemnitees, written notice thereof shall be given to Tutor within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of TOM Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that Tutor demonstrates damage caused by such failure. After such notice, Tutor shall be entitled, if it so elects, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice (subject to the reasonable approval of TOM) to handle and defend the same, at Tutor’s reasonable cost and expense. TOM Indemnitees shall cooperate in all reasonable respects, at Tutor’s cost and expense, with Tutor and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. Tutor shall not, without the prior written consent of TOM Indemnitees, effect any settlement of any proceeding in respect of which TOM Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by Tutor and includes an unconditional release of TOM Indemnitees from all liability on claims that are the subject matter of such proceeding.

If Tutor shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then TOM Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as TOM Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by Tutor upon demand by TOM Indemnitees.

TOM may deduct or offset or withhold Tutor Fees if TOM, in its sole and absolute discretion, determines that you have committed some act that is likely to result in disputes, chargebacks or damages to TOM to which TOM would be entitled to indemnification by you.

17 TERMINATION

You may terminate this Agreement upon written notice to TOM at any time without Cause.

TOM may terminate this Agreement upon written notice to you at any time without Cause; such termination to be effective on the effective date stated in such writing and TOM reserves the right to terminate any remaining Sessions for which you are scheduled or for which payment has been made.

Failure to abide by the terms of this Agreement may, in the sole discretion of TOM, result in suspension or termination of your account.

Except in the event of termination by TOM for Cause, your right to receive your Net Tutor Fees for all Sessions completed prior to the effective date of termination shall not be affected, subject to the provisions of this Agreement relating to disputes and indemnification.

Except as otherwise required by law, you will not have access to the Site, other than such elements of the Site not requiring prior registration, after termination of this Agreement.

18 DISPUTES

18.1 Disputes Between Tutors and Students

If and to the extent a dispute arises between you and a Student relating to the fees paid or to be paid by the Student or the Services performed by you, all such disputes brought to the attention of TOM shall be submitted directly to Stripe. If and to the extent you wish to submit a complaint against a Student relating to anything other than fees, including but not limited to a violation of the Standards of Conduct, such complaint shall be submitted to TOM.

18.2 Disputes Between You and TOM

If and to the extent any dispute or claim as between you and TOM relating to this Agreement cannot be resolved through good faith negotiations, such dispute or claim shall be resolved exclusively by arbitration in Bakersfield, California, under and pursuant to the rules of the American Arbitration Association for Kern County, California, in accordance with the laws of the State of California, without regard to its conflict of law provisions. The prevailing Party shall be entitled to recover its cost and reasonable attorneys’ fees incurred in connection with such action from the other party.

You agree that any dispute you may bring to arbitration shall be as an individual only, not as a class or with or behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a member in a class or collective proceeding. This arbitration may be forced under the Federal Arbitration Act and TOM may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.

Notwithstanding the foregoing, in the event that monetary damages are not a sufficient remedy for any threatened or actual breach of this Agreement, in addition to monetary damages, either Party shall be entitled to seek other remedies at law, injunctive or other equitable relief and/or specific performance to remedy or prevent any threatened or actual breach of this Agreement in any court of competent jurisdiction without the requirement of a bond.

In the case of a complaint or dispute lodged for Cause by a Student, in addition to any resolution as between Tutor and the Student, TOM reserves the right to pursue its own remedies including but not limited to damages, indemnification, temporary suspension from the Platform or limitations on Tutor’s use of the Platform, or termination of this Agreement.

In the case of a complaint or dispute lodged for Cause by Tutor, in addition to any resolution as between Tutor and Student, TOM reserves the right to pursue its own remedies including but not limited to damages, indemnification, temporary suspension from the Platform or limitations on Student’s use of the Platform, or termination of this Agreement.

For purposes of clarity, the elements of Cause may be asserted by Student, Tutor or TOM whether such elements are committed before, during or after a Session while using the Link, or at any other time or place such as social media posts, whether or not committed in the respective individual’s capacity as a Tutor or Student.

18.3 “Cause”

“Cause” means:

(a) In the case of a dispute lodged by a Student,

(i) a violation by you of the Standards of Conduct described herein;

(ii) your failure to be present via the Link within Five (5) minutes of the Scheduled Start Time;

(iii) your departure from the Link prior to the scheduled completion time;

(iv) your commencing a session without reasonable preparation;

(v) your appearance in a manner inappropriate for tutoring the Student;

(vi) your permitting any person other than Tutor to participate, be present or to view a Session if such person is not reasonably related to or beneficial to such Session;

(vii) your conduct or words that could be perceived as inflammatory, disrespectful, racist, sexist or discriminatory, or promoting any political, religious or sexual view or preference; or

(viii) your conduct or words that are particularly inappropriate for minors (if the Student is a minor).

(b) In addition to the foregoing and in the case of termination by TOM, Cause shall include any circumstance in which this Agreement and your association with TOM would tend to have materially adverse effect on the reputation and image of TOM and/or the Site.

19 LIMITATION OF LIABILITY

IN NO EVENT WILL TOM BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING BUT NOT LIMITED TO THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE HAD BEEN ADVISED OF SUCH POSSIBILITY.

IN NO EVENT SHALL THE LIABILITY OF TOM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF PLACEMENT FEES EARNED BY TOM IN CONNECTION WITH YOUR ACCOUNT FOR THE SIX (6) MONTHS PRECEDING COMMENCEMENT OF THE DISPUTE. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY INDEMNIFICATION OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

For purposes of this section, any reference to “TOM” shall include TOM’s Affiliates and their respective owners, officers, employees, agents and contractors.

20 ASSIGNABILITY

Due to the uniqueness of the Services to be rendered personally by you, you may not assign this Agreement or delegate the duties hereunder. Any attempted assignment, transfer or delegation in violation of this subsection will be null and void. TOM may assign this Agreement upon written notice to you. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.

21 FORCE MAJEURE

Neither Party shall be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, epidemics, pandemics, quarantines, stay-at-home orders or any other cause beyond the reasonable control of TOM.

22 MODIFICATIONS

TOM may amend this Agreement at any time, in its sole and absolute discretion; provided any changes in fees and costs payable by you and/or services to be provided by TOM shall be applicable only after the effective date of such change (which shall be not less than thirty (30) days after the change is posted on the Site, and your rights with respect to fees and costs earned or incurred prior to the effective date shall remain unchanged). Your continued use of the Site after the effective date of any such modification shall be conclusive evidence of your consent to be bound by such modification.

No amendment, modification or waiver of any of the terms of this Agreement will be binding upon TOM except by a written instrument signed by a duly authorized representative of TOM or posted on the Site by TOM.

23 INTERPRETATION

You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.

This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.

The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.

24 SEVERABILITY

If any provision of this Agreement is unenforceable under any applicable law or is held invalid, such holding shall not affect any other provision hereof, and the defective provision shall, if applicable law permits, be modified and interpreted in a manner that it is enforceable. Otherwise, the offending term or provision shall be omitted and not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

25 SURVIVAL

Notwithstanding anything to the contrary contained herein, the terms of this Agreement that expressly or by their nature contemplate performance after this Agreement terminates will survive and continue in full force and effect.

Specifically, Sections 6, 7, 10-12, 14-16, 18, 19, 23-28 shall survive termination of this Agreement.

26 NOTICES

Any notices or other communications required or permitted hereunder shall be sufficiently given if by email addressed as follows, or to such other address as such Party may notify to the other Parties in writing:

Email To TOM: [email protected]

To You: At such address and email as you indicate in your application.

Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt if evidenced by a read receipt, or (ii) the date and time of a response by the receiving Party, or (iii) Two (2) business days after the date and time sent. The Parties shall notify the other of any change in address, which notification must be at least two business days in advance of it being effective. Notices may be given on behalf of any Party by such Party’s legal counsel.

27 BINDING AGREEMENT

This Agreement shall be binding upon and inure to the benefit the Parties and their respective successors and assigns. Subject to the foregoing sentence, this Agreement is for the exclusive benefit of you and TOM, and there shall be no third party beneficiary to any of the provisions of this Agreement.

28 ENTIRE AGREEMENT

This Agreement, including the recitals, sets forth the entire agreement and understanding between you and TOM relating to the subject matter hereof and thereof and supersedes any prior or contemporaneous discussions, agreements, representations, warranties and other communications between you and TOM, written or oral, to the extent they relate in any way to the subject matter hereof.

TOM ™
STUDENT TERMS AND CONDITIONS

These Terms and Conditions for Students (“Agreement”) are entered into by and between Tutoring Online Marketplace, LLC (“TOM”) and you (“you” or “Student”). For purposes of this Agreement, any services provided by TOM through the Site to you shall be included in “use” of the Site. You and TOM may also be referred to individually as a “Party” and, collectively, as the “Parties.”

IT IS ESSENTIAL THAT YOU READ THESE TERMS AND CONDITIONS
OF SERVICE AS THEY DESCRIBE AND, IN SOME CASES, LIMIT YOUR RIGHTS.

YOUR USE OF THIS SITE INDICATES YOU HAVE READ AND
YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT.

IF THE STUDENT IS A MINOR, REFERENCES TO “YOU” OR “STUDENT”

INCLUDE SUCH STUDENT’S PARENT OR GUARDIAN.

THEREFORE, the Parties agree as follows:

1 DEFINITIONS

In addition to terms defined throughout this Agreement, the following terms shall have the meanings indicated.

“Engagement” means an agreement between a Tutor and a Student for either a Session or a Series.

“Link” means an online video connection provided by TOM to the Tutor and Student to conduct a Session.

“Posting” means a description placed on the Site by a Student that may include the Student’s age, subject matter needing tutoring and grade level, time availabilities and the rate the Student desires to pay for a Tutor. If the Student is a minor, the Posting will also include a validation statement by the Student’s parent or guardian that he/she is aware of and approves the Posting, and has agreed to be responsible for all payments due in accordance with the terms and conditions of the Site.

“Scheduled Start Time” means the time agreed upon by a Tutor and Student for the commencement of a Session.

“Series” means more than one Session paid for together as a package.

“Services” means the work of a Tutor in tutoring a Student.

“Session” means a single period during which a Tutor provides the Services to a Student via a Link.

“Session Comments” means the notes and reviews a Tutor or a Student makes with respect to a specific Session.

“Student” means the person who is requesting and will receive the Services. If the Student is a minor, references to Student shall include such Student’s parent(s) or legal guardian(s).

“Tutor” means the person providing the Services. If the Tutor is a minor, references to Tutor shall include such Tutor’s parent(s) or legal guardian(s).

“Tutor Fee” means the amount upon which you and a Tutor agree will be paid for a Session or Series.

2 REGISTRATION

There is no cost for you to apply for an account and register as a Student. TOM reserves the right to review and approve or reject, in its sole and absolute discretion, each application.

Your application for registration as a Student may include your personal information, subjects you would like help with your time availability and your preferred language. If you are under 18 years of age, your parent or guardian must acknowledge and validate the registration, and agree to these terms and conditions on your behalf.

For you to register, you will make a Posting and provide a valid credit card through which all payments of Tutor Fees will be processed. If the Student is a minor, the credit card will be that of a parent or guardian of such Student. Postings will include the Student’s age, subject matter needing tutoring and grade level, time availabilities and the rate the Student desires to pay for a Tutor.

3 PERSONAL INFORMATION

As described more fully in the TOM Privacy Policy…

PERSONAL AND CONTACT INFORMATION WILL NEVER BE PUBLICLY

AVAILABLE ON OR THROUGH THE SITE.

If you choose to provide personal contact information to a Tutor, that is your choice.

HOWEVER,

(a) it is a violation of these terms and conditions to receive Services from any Tutor you meet on or through the Site other than through a Link; and

(b) TOM cannot provide any of the benefits described in these and terms and conditions with respect to any Services provided other than through a Link; and

(c) violation of these terms and conditions may, in the sole and absolute discretion of TOM, result in your temporary suspension from being able to access the Site and/or termination of this Agreement resulting in permanent loss of access to the Site.

4 SELECTING A TUTOR

4.1 Procedure

Once approved by TOM, a Tutor’s profile will be available on the Site for you to browse or search by various criteria such as subject matter, years of experience and gender.

You can invite any Tutor you think might be appropriate to interview.

Additionally, Tutors will be able to browse Postings and make an offer to you.

Once communication has been initiated by either you or the Tutor, if you both want to communicate, you may do so through the Site.

4.2 Requirements

You must have:

(a) a computer or similar device that has a touch screen and camera/microphone;

(b) a stable Internet connection; and

(c) a stylus (optional but preferred).

5 CONDUCTING A SESSION

5.1 Commencement

Upon you and a Tutor agreeing that the Tutor will provide Services to you:

(a) the credit card of the Student (or, in the case of a minor, his/her parent or guardian who agreed to pay for the Sessions) will be charged for the full amount of the Tutor Fee to pay for the Session or Series;

(b) upon agreement as to a schedule for a single Session, a Link through which you and the Tutor will conduct the first Session will be provided by TOM; and

(c) in the case of a Series, a Link will be provided approximately Twenty Four (24) hours prior to each Session based on the schedule agreed by you and the Tutor.

SessionS MAY NOT BE CONDUCTED other than through A Link.

5.2 Recordings

TUTORS ARE REQUIRED TO RECORD all Sessions AND, IF REQUESTED BY TOM, PROVIDE A COPY OF ANY RECORDING TO TOM for purposes including but not limited to resolution of any complaints or disputes. RECORDINGS WILL NEVER BE MADE PUBLIC THAT SHOW A STUDENT WITHOUT THE EXPRESS WRITTEN CONSENT OF THE STUDENT OR, IF A MINOR, SUCH STUDENT’S PARENT OR GUARDIAN.

A Tutor’s failure to record a Session or to provide an unedited and unmodified copy of a recording as requested by TOM shall, in addition to any other remedies available to TOM for breach of this Agreement, be grounds for immediate suspension or termination in the sole and absolute discretion of TOM.

More information about recordings and TOM’s use of recordings is described in Section 3 of the Privacy Policy.

5.3 Feedback

Upon conclusion of each Session, you may each be prompted to make Session Comments.

Session Comments by you are optional.

There are no ratings of Tutors by Students. Only Session Comments.

Any feedback or comments by you are the property of TOM for which you hereby grant the unlimited right of use and publicity without disclosure of your name or identity.

Session Comments by you will first be viewable by the Tutor and TOM. If Session Comments are determined by TOM to be lewd, offensive, racist, bullying, hateful or threatening, or encouraging or condoning any of the foregoing, TOM will delete such Session Comments. Session Comments may be viewable by the public on the Site five (5) days after submission.

6 TUTOR FEES

6.1 Amount

The Tutor Fee is entirely up to you and your Tutor. The Tutor’s requested fee will be included in the Tutor’s profile but you and the Tutor may adjust the Tutor Fee as you agree.

6.2 Payment

(a) The Tutor Fee will be paid by or for the Student prior to commencement of the Session or Series.

(b) All payments will be processed through Stripe.

6.3 Rescheduling

(a) Rescheduling by the Tutor. If the Tutor needs to reschedule, they may submit a request to reschedule and propose a new time to you. If you agree or if you propose a different rescheduled Session and the Tutor agrees, TOM will provide a new Link to you and the Tutor for the rescheduled Session. If you and the Tutor cannot agree on a rescheduled Session, the Session in question will be cancelled. Excessive rescheduling by a Tutor may, in the sole discretion of TOM, result in suspension or termination of the Tutor’s account.

(b) Rescheduling by a Student. If you want to reschedule, you may submit a request to reschedule and propose a new time to the Tutor. If the Tutor agrees or if the Tutor proposes a different rescheduled Session and you agree, TOM will provide a new Link to you and the Tutor for the rescheduled Session. . Excessive rescheduling may, in the sole discretion of TOM, result in suspension or termination of your account.

6.4 Lateness and No-Shows.

(a) You are required to connect to the Link within Fifteen (15) minutes of the Scheduled Start Time. If you connect to the Link after the Scheduled Start Time but not more than Fifteen (15) late, the Tutor is not required to provide any additional time at the end of the scheduled Session but may, in the Tutor’s sole discretion, do so. Excessive lateness or no-shows may, in the sole discretion of TOM, result in suspension or termination of your account..

(b) The Tutor is required to connect to the Link within Five (5) minutes of the Scheduled Start Time. .

6.5 Cancellations

Excessive cancellations by Students or Tutors may, in the sole discretion of TOM, result in suspension or termination of your account.

7 RELATIONSHIP WITH TOM AND THE TUTOR

The Tutor is an independent contractor with respect to you. Nothing in this Agreement is intended to or should be construed to create a contractor, partnership, joint venture, franchisor/franchisee or employer-employee relationship between the Tutor and TOM.

While the Site provides a platform through which you and a Tutor may meet and interact, the Tutors provide their Services to Students directly, not to TOM. The Tutors are solely and exclusively responsible for the quality and accuracy of the Services they provide to Students.

Tutors shall not, in any manner or respect, represent, suggest or convey the impression that they are employees, contractors or agents of TOM. If any Tutor has said or given you the impression that they are an employee, contractor or agent of TOM, pleased let TOM know.

No portion of the Net Tutor Fee will ever be in the possession of TOM. Consequently, TOM will not and cannot withhold any portion of the Tutor Fee for refunds or disputes. All requests for refunds or submissions of disputes shall be to Stripe, as provided in Section 18.1.

8 STANDARDS OF CONDUCT

8.1 In General.

While the Tutor, as an independent contractor of yours, will provide the Services in any manner which they deem appropriate to achieve the desired result, TOM requires of all Tutors, regardless of the field or expertise, the following:

(a) They will, at all times and in all respects, be professional and courteous.

(b) They will strive to listen carefully to you.

(c) They will not mislead you for the purpose of encouraging you to purchase more Sessions than are reasonably necessary to accomplish your reasonable objectives.

(d) They will not ask or answer questions of a personal nature, except as may be reasonably necessary for them to perform the Services.

(e) They will not ask questions or make comments of a discriminatory or offensive nature.

(f) They will not ask for or use personal and direct Student contact information.

If any Tutor violates any of these standards, please let us know IMMEDIATELY.

Similarly, TOM requires of all Students the following:

(a) You will, at all times and in all respects, be respectful and courteous.

(b) You will not ask or answer questions of a personal nature.

(c) You will not ask questions or make comments of a discriminatory or offensive nature.

8.2 Academic Honesty Policy.

TOM has a strict policy of academic honesty.

Examples of academic honesty violations include, but are not limited to, completing study guides or assignments on the Student’s behalf, or helping to complete or assisting in any type of an assessment (quiz, test, practice exams, “take home”, “open book,” etc.). If the academic honesty policy is violated, Students or Tutors could have their access to the Site suspended or terminated.

8.3 Use of the Site

9 REPRESENTATIONS AND WARRANTIES

You represent and warrant that:

(a) EITHER:

i. you are eighteen (18) years of age or older and authorized to enter into this Agreement on behalf of yourself, OR

ii. you are the parent or guardian of a Student and you personally agree to abide by and take full responsibility for compliance by yourself and the Student, of whom you are the parent or guardian, with the terms and conditions of this Agreement, in which case you have signed the Parental Acknowledgment attached as Exhibit 1 AND you will be present at and/or able to monitor each Session.

(b) the information provided in establishing the Student’s account with TOM is true and accurate in all respects, and that you will immediately update such account should any account information change.

10 CONFIDENTIAL INFORMATION

10.1 What is Confidential Information

TOM and/or your Tutor may obtain, or you may furnish to TOM and/or your Tutor, orally or in writing, certain non-public, confidential, and proprietary information about you (collectively, “Confidential Information”). Confidential Information includes, but is not limited to (a) personal information; and (b) any other information concerning the Student which is not readily available to the public.

10.2 Non-Disclosure and Non-Use of Confidential Information

TOM and your Tutor each promises and agrees to hold Confidential Information in strict confidence, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as provided in this Agreement and TOM’s Privacy Policy. In handling the Confidential Information, TOM shall use not less than the same degree of care it uses to protect its own confidential information, but in any event not less than a reasonable degree of care.

10.3 Exclusions and Exceptions

If TOM or Tutor is required to disclose Confidential Information by virtue of a lawful court order, subpoena or similar legal request, such Party will promptly notify you in writing of such requirement and cooperate so that you may seek an appropriate protective order.

10.4 Use of Confidential Information in Resolving Disputes

TOM utilizes state-of-the-art encrypted security measures (including but not limited to username and password protections) to protect the security and confidentiality of communications, recordings (if any) and messages (collectively, “Communications”) transmitted via and/or stored by TOM. In the event of a dispute between you and a Tutor submitted to Stripe or the application of mandatory mediation as provided hereinbelow, Stripe may request or TOM may determine, in its sole and absolute discretion, that a resolution of such dispute necessitates a review of certain of such Communications. If and to whatever extent TOM becomes aware of any Confidential Information as between Tutor and a Student contained in the Communications, TOM will treat such Confidential Information in the same manner as required hereinabove and will use such Confidential Information, if at all, solely for the purpose of providing information to Stripe for the purpose of resolving such dispute between you and a Tutor, or for the purpose of resolving such dispute between you and TOM.

11 INTELLECTUAL PROPERTY

12 NON-CIRCUMVENTION

You promise and agree that you shall not request Services from a Tutor you meet on the Site, directly or indirectly, outside the Site and without payment to the Site as intended by TOM.

13 SECURITY

14 WARRANTY DISCLAIMER

TOM makes no representations or warranties as to the Site. To the maximum extent of the law, TOM disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for particular purpose, title and non-infringement. The Site is provided “as is.” Further, TOM makes no representations or warranties that you will find a suitable Tutor or receive suitable Services from a Tutor engaged through the Site.

15 WAIVER

(a) any unauthorized person uses your username and password to the Site for any purpose and with any result;

(b) the Site is partially or totally inoperative or inaccessible;

(c) your use of the Site;

(d) any act or action that would constitute Cause by you, as such term is defined hereunder;

(e) viruses or other malicious software are transferred to your computer by using the Site;

(f) there are bugs, errors or inaccuracies in the Site;

(g) third-party content, actions or inactions on or with respect to the Site;

(h) claims related to the manner of resolution or outcome of a dispute as between you and a Tutor;

(i) a suspension or other action taken with respect to your account by TOM;

(j) any claim relating to a change in this Agreement by TOM;

(k) deletion, corruption or destruction of any information, notes, data, communications or documents in connection with or as between you and a Student or you and TOM; and

(l) any violation of Section 10 Confidentiality by a Tutor.

For purposes of this section, any reference to “TOM” shall include TOM’s Affiliates and the owners, officers, employees, agents and contractors of each.

16 INDEMNIFICATION

TOM and its affiliates, owners, principals, officers, employees and agents shall be referred to, collectively, as “TOM Indemnitees.”

16.1 Your Obligation to Indemnify

(a) any misrepresentation by, or breach of any covenant or warranty or representation of you contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by you hereunder INCLUDING BUT NOT LIMITED TO ANY REPRESENTATION AS TO YOUR AGE;

(b) any non-fulfillment of any agreement on the part of Tutor under this Agreement;

(c) any suit, action, proceeding, claim or investigation against TOM Indemnitees which arises from or which is based upon or pertaining to Tutor’s acts or omissions including but not limited to use of the Site, violation of Standards of Conduct or any matter that constitutes Cause in connection with the right of a Student to terminate this Agreement;

(d) any Services provided to you;

(e) any injury to person or property caused, all or in part, by you including but not limited to emotional or psychological injury or distress;

(f) failure to comply with the terms of this Agreement;

(g) failure to comply with applicable law;

(h) negligence, willful misconduct, harassment, indecent exposure or fraud (including but not limited to use of another person’s credit card as a method of payment);

(i) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you;

(j) any claim for violation of any applicable rule or code of conduct or ethics other than those include in this Agreement; and

(k) your withholding of information regarding or your misrepresentation of your status in regard to your representations and warranties.

16.2 Indemnification Process

If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against TOM Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of TOM Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if you so elect, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice (subject to the reasonable approval of TOM) to handle and defend the same, at your reasonable cost and expense. TOM Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. You shall not, without the prior written consent of TOM Indemnitees, effect any settlement of any proceeding in respect of which TOM Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by you and includes an unconditional release of TOM Indemnitees from all liability on claims that are the subject matter of such proceeding.

If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then TOM Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as TOM Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by TOM Indemnitees.

17 TERMINATION

You may terminate this Agreement upon written notice to TOM at any time without Cause.

Failure to abide by the terms of this Agreement may, in the sole discretion of TOM, result in suspension or termination of your account.

Except as otherwise required by law, you will not have access to the Site, other than such elements of the Site not requiring prior registration, after termination of this Agreement.

18 DISPUTES

18.1 Disputes Between Tutors and Students

If and to the extent a dispute arises between you and a Tutor relating to the fees paid or to be paid by the Student or the Services performed by the Tutor, all such disputes brought to the attention of TOM shall be submitted directly to Stripe.

If and to the extent you wish to submit a complaint against a Tutor relating to anything other than fees, including but not limited to a violation of the Standards of Conduct, such complaint shall be submitted to TOM.

18.2 Disputes Between You and TOM

In the case of a complaint or dispute lodged for Cause by a Tutor, in addition to any resolution as between Tutor and Student, TOM reserves the right to pursue its own remedies including but not limited to damages, indemnification, temporary suspension from the Platform or limitations on Student’s use of the Platform, or termination of this Agreement.

For purposes of clarity, the elements of Cause may be asserted by a Tutor or TOM whether such elements are committed before, during or after a Session while using the Link, or at any other time or place such as social media posts.

18.3 “Cause”

“Cause” means:

(a) In the case of a complaint or dispute lodged by you against a Tutor,

(i) a violation by the Tutor of the Standards of Conduct described herein;

(ii) the Tutor’s failure to be present via the Link within Five (5) minutes of the Scheduled Start Time;

(iii) the Tutor’s departure from the Link prior to the scheduled completion time;

(iv) the Tutor’s commencing a session without reasonable preparation;

(v) the Tutor’s appearance in a manner inappropriate for tutoring the Student;

(vi) the Tutor’s permitting any person other than the Tutor to participate, be present or to view a Session if such person is not reasonably related to or beneficial to such Session;

(vii) the Tutor’s conduct or words that could be perceived as inflammatory, disrespectful, racist, sexist or discriminatory, or promoting any political, religious or sexual view or preference; or

(viii) the Tutor’s conduct or words that are particularly inappropriate for minors (if the Student is a minor).

(b) In the case of a complaint or dispute lodged by a Tutor against you,

(i) a violation by you of the Standards of Conduct described herein;

(ii) your failure to be present via the Link within Fifteen (15) minutes of the scheduled start time;

(iii) your conduct or words that could be perceived as inflammatory, disrespectful, racist, sexist or discriminatory, or promoting any political, religious or sexual view or preference; or

(iv) your conduct or words that are particularly inappropriate for minors (if the Tutor is a minor).

(c) In addition to the foregoing and in the case of termination by TOM, Cause shall include any circumstance in which this Agreement and your association with TOM would tend to have materially adverse effect on the reputation and image of TOM and/or the Site.

19 LIMITATION OF LIABILITY

IN NO EVENT SHALL THE LIABILITY OF TOM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF TUTOR FEES PAID BY YOU DURING THE SIX (6) MONTHS PRECEDING COMMENCEMENT OF THE DISPUTE. THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

For purposes of this section, any reference to “TOM” shall include TOM’s Affiliates and their respective owners, officers, employees, agents and contractors.

20 ASSIGNABILITY

TOM may assign this Agreement upon written notice to you. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.

21 FORCE MAJEURE

22 MODIFICATIONS

23 INTERPRETATION

This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.

24 SEVERABILITY

25 SURVIVAL

Specifically, Sections 6, 7, 10-12, 14-16, 18, 19, 23-28 shall survive termination of this Agreement.