MY TUTORWEB LIMITED, a company registered in England and Wales under company number 08580263, whose registered office is at 35 Ballards Lane, London, N3 1XW hereinafter referred to as (‘MTW’) trading as MyTutor and operating a website at www.mytutor.co.uk and the online learning platform (the ‘MTW Sites’); set out the following terms and conditions upon which MTW offers the organisation detailed on the Order Confirmation as duly executed by an authorised signatory (‘Sponsor’) access to one or more Services (as defined).
The definitions to be read with this Agreement are set out in full at Condition 16.
2. GENERAL: BASIS OF THE AGREEMENT
2.1 The Order constitutes an order confirmation following an offer by the Sponsor to purchase certain Services in accordance with these Conditions
2.2 The Order shall only be deemed to be confirmed and accepted when MTW countersigns the Order Confirmation at which point and on which date this Agreement shall come into existence (‘Commencement Date’).
2.3 Any samples, drawings, descriptive matter or advertising issued by MTW, and any descriptions or illustrations contained in MTW's promotional materials including the MTW Sites, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of this Agreement or have any contractual force.
3. SUPPLY OF MTW SERVICES
3.1 MTW shall supply the Services selected on the Order Confirmation to the Sponsor by way of the:
a) Sale of MTW Credit Bundles redeemable against the purchase of Tutoring Services which shall be performed by independent Tutors; and,
b) Provision of MTW Services;
in accordance with the Order Confirmation, these MyTutor Engagement Terms as otherwise agreed in writing between the parties.
3.2 Sponsor shall be entitled to increase the value of the MTW Credits purchased at any time in order to purchase additional MTW Credit Bundles which shall be used to acquire additional Tutorials from Tutor(s). To do this, MTW shall issue one or more further Order Confirmations for Sponsor to review, agree and execute whereupon a new contract shall be formed.
3.3 As part of the MTW Services, MTW will make reasonable efforts to recommend appropriate independent Tutors to the Sponsor and the Sponsor’s Students.
3.4 MTW shall be entitled to recommend, arrange and timetable the delivery of all Tutorials in advance in consultation with, and on behalf of, the Sponsor and the Tutor. From time to time, MTW may substitute one or more Tutors initially chosen to provide the Tutorials in consultation with the Sponsor. The Sponsor will have the option to substitute a Student provided that they are at the same level and require tuition in the same subject. Both parties hereby agree that MTW will bear no liability whatsoever in respect of the Tutors and the Tutoring Services performed by the Tutors. All Tutors recommended by MTW will have DBS background checks and the recommendations will be made according to MTW’s matching process on a best efforts basis only.
3.5 MTW shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services and MTW shall notify the Sponsor in any such event.
3.6 MTW warrants to the Sponsor that the Services will be provided using reasonable care and skill.
4. SPONSOR OBLIGATIONS
4.1 The Sponsor shall:
a) ensure that the terms of the Order as noted on the Order Confirmation and any information it provides in writing to MTW are complete, accurate and up-to-date at all times;
b) commit to the purchase of all MTW Credits/ MTW Credit Bundles referred to in the Order Confirmation
c) co-operate with MTW in all matters relating to the Services and provide MTW with such information and materials as MTW may reasonably require in order to facilitate the provision of the Tutoring Services provided by the Independent Tutor and ensure that such information is accurate and up-to-date in all material respects.;
d) obtain and maintain all necessary licenses, permissions and consents which may be required before the date on which the Services are to start and thereafter during the subsistence of this Agreement;
e) be responsible for providing all services to enable the students to access the website and the online learning platform including but not limited to hardware, software, and secure network connectivity to the internet. These provisions shall include but may not be limited to:
i. Latest version of Google Chrome web browser
ii. Working microphones,webcams and headsets
iii. Strong internet connection
4.2 If MTW's performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by the Sponsor or failure by the Sponsor to perform any relevant obligation (‘Sponsor Default’):
a) MTW shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Sponsor remedies the Sponsor Default, and to rely on the Sponsor Default to relieve it from the performance of any of its obligations to the extent the Sponsor Default prevents or delays MTW's performance of any of its obligations;
b) MTW shall not be liable for any Losses sustained or incurred by the Sponsor arising directly or indirectly from Sponsor’s failure or delay to perform any of its obligations as set out in Condition 4.1;
5. SPONSOR FEES & SETTLEMENT
5.1 MTW shall invoice the Sponsor for the:
a) MTW Credit Bundle Payments in respect of MTW Credit Bundles; and,
b) MTW Fees in respect of MTW Services;
in accordance with the Order Confirmation. Sponsor shall pay each invoice by the Payment Due Dates and in full and in cleared funds to MTW’s bank account each as set out in the Order Confirmation. Payment of all Fees for the Services shall be of the essence of this Agreement.
a) Sponsor acknowledges in full that pursuant to the Services each Tutor authorises MTW and its agents on Tutor’s behalf to accept any forms of payment approved by MTW in connection with the sale and purchase of the MTW Credit Bundles as set out in the Order Confirmation; and,
b) each Tutor will not be VAT registered and will not charge VAT in respect of the redemption of the MTW Credit Bundles against the purchase of Tutoring Services.
5.2 Sponsor further acknowledges that Tutors are self-employed under any given Contract. Tutors, Sponsors or Students do not have the power to bind MTW in any way in respect of the obligations of the one to the other.
5.3 If MTW has not received payment within 10 days after the Payment Due Date, and without prejudice to any of its other rights and remedies, MTW may (without liability to the Sponsor) disable the Sponsor's account and/or access to all or part of the Services and MTW shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
5.4 The Sponsor shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). MTW may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Sponsor against any amount payable by MTW to the Sponsor.
5.5 MTW shall, within twenty (30) Business Days of the end of each School Term, supply on behalf of the Tutor(s) who delivered the Tutoring Services, a written consolidated payment receipt statement to Sponsor stating the number of Tutorials completed that School Term as a result of the redemption of MTW Credits and the details of any MTW Fees payable in respect of the associated MTW Services
5.6 Any unused MTW Credits in any one School Term purchased on a pre-paid, redeemable basis shall be rolled over to the next School Term. In the event that this Agreement is terminated, the Sponsor shall be entitled to request a refund of any unused MTW Credits. The refund shall be made within fourteen (14) days of MTW’s receipt of the same which will then be subject to the timescales imposed by any banking clearing systems.
5.7 Where a pre-booked Tutorial is cancelled by the Sponsor, or is subject to a change request, such a request must be notified to MTW a minimum of three (3) calendar days in advance of the pre-booked Tutorial date (‘Cancellation Window’) in order for the Sponsor to be entitled to either roll over the MTW Credits or request a refund in accordance with Condition 5.6.
6. INTELLECTUAL PROPERTY
6.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by MTW or licensed to MTW. The Intellectual Property Rights contained on the MTW Sites cannot be used, modified, copied, distributed, adapted, altered, or in any way exploited, without MTW’s written permission.
6.2 Neither party will claim rights to any of the other party’s Intellectual Property Rights as a result of this Agreement.
6.3 The Sponsor acknowledges that all Intellectual Property Rights in
a) all Materials produced by the Tutor pursuant to the performance of the Tutoring Services shall remain the property of the Tutor; and,
b) and relating to MTW are owned by MTW or MTW’s licensors.
6.4 All MTW Content is the exclusive property of MTW.
7.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under this Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Condition as though they were a party to this Agreement. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Condition 7 shall survive termination of this Agreement.
8. MTW OBLIGATIONS
8.1 MTW agrees to:
a) provide the Services with all due care, skill and ability and in the best interests of the Sponsor and Sponsor’s Students;
b) devote as much time to the provision of the Services as may be necessary for their proper performance;
c) conduct all Services in accordance with the applicable Legislation;
d) provide promptly and give to a Sponsor all such information as they may reasonably require in connection with the provision of the Services; and,
e) provide a response in a timely manner to any requests for support (in relation to the use of the MTW Sites only).
9.1 This Condition 9 sets out the entire financial liability of MTW (including any liability for the acts or omissions of its Students, employees, agents and sub-contractors) to the Sponsor:
a) arising under or in connection with this Agreement;
b) in respect of any use made of the Services and the MTW Content or the Tutor Materials or any part of them; and
c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 Except as expressly and specifically provided in this Agreement:
a) the Sponsor assumes sole responsibility for results obtained from the use of the Services (including the Tutor’s Content) as well as the Tutoring Services and the Tutor Materials, and for conclusions drawn from such use. MTW shall have no liability for any damage caused by errors or omissions in any information or instructions provided to MTW by the Sponsor in connection with the Services, or any actions taken by MTW at the Sponsor's direction;
b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
9.3 Nothing in this Agreement excludes the liability of either party:
a) for death or personal injury caused by its own negligence; or
b) for fraud or fraudulent misrepresentation.
9.4 Subject to Condition 9.2 and Condition 9.3:
a) MTW shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and,
b) MTW's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total MTW Fees paid for the MTW Services out of which the claim arose during the six (6) months immediately preceding the date on which the claim arose.
10. COMPLAINTSMTW tries to meet the highest standards when providing the Services. MTW take any complaints received very seriously. MTW encourages the Sponsor to bring any complaint to our attention and welcomes any suggestions for improving our procedures. MTW will try and solve any disagreements quickly and efficiently. If Sponsor is not happy with the way MTW deals with any complaint and wishes to take court proceedings, Sponsor must do this within England. Relevant English law will apply.
11. TERM & TERMINATION
11.1 This Agreement shall commence on the Commencement Date set out in the Order Confirmation and shall continue for an initial period of twelve (12) months] (‘Initial Term’) thereafter, this Agreement shall be automatically renewed for a successive period of twelve (12) months] (each a ‘Renewal Term’) unless:
a) either party notifies the other party of termination, in writing, at least . thirty (30) days] before the end of the Initial Term or any Renewal Term, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Term; or,
b) this Agreement is otherwise terminated in accordance with the provisions of these MyTutor Engagement Terms.
11.2 MTW reserves the right to terminate any and all aspects of this Agreement on [ thirty days (30) days’] notice if it chooses to discontinue the provision of any Services. MTW shall cooperate with Sponsor and make commercially reasonable efforts to introduce Sponsor to an alternative service provider, which shall not be binding on Sponsor.
11.3 Without affecting any other right or remedy available to it, MTW may suspend provision of the Services (which shall, as a consequence, include the Tutoring Services as a result) under this Agreement or any other contract between the Sponsor and MTW or terminate this Agreement with immediate effect by giving written notice to the Sponsor if:
a) the Sponsor fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
b) the Sponsor commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of fourteen (14) days after being notified in writing to do so;
c) the Sponsor becomes insolvent or is otherwise unable to pay its debts as they fall due.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of this Agreement for any reason:
a) MTW shall not be under any obligation legal or otherwise to continue with, or to complete any pending Services with no liability to Sponsor;
b) the Sponsor shall immediately pay to MTW all of MTW's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, MTW shall submit an invoice, which shall be payable by the Sponsor immediately on receipt;
c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry; and
d) Conditions which expressly or by implication survive termination shall continue in full force and effect.
13. DATA PROTECTION
13.1 Each party shall comply with its respective obligations under the provisions of the Data Protection Act 1998 (the Act) and references in this Condition to ‘Data Processor’ and ‘Personal Data’ shall have the meanings defined in the Act.
13.3 Where MTW, as part of the fulfilment of its obligations under this Agreement, processes Personal Data:
a) MTW shall:
i. act only on, and comply with, Sponsor’s lawful instructions given from time to time and will keep records of all such processing;
ii. at all times take all appropriate technical and organisational measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
iii. be entitled to transfer any Personal Data outside the EEA/ UK without Sponsor's prior consent if required for its normal business operations; and,
iv. immediately notify Sponsor if it receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data under this Agreement and shall provide full co-operation and assistance in relation to any such complaint, notice or communication.
14. FORCE MAJEUREMTW reserves the right to suspend the performance of any Services or to terminate this Agreement with no liability to the Sponsor if it is prevented from, or delayed in, carrying on its business by a Force Majeure Event.
15. GENERAL TERMS
Assignment: The Sponsor shall not, without the prior written consent of MTW, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. MTW may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Enforceability: If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
Entire Agreement: The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties hereto with respect to such subject matter. The Sponsor acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of MTW which is not set out in this Agreement.
Governing Law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction: Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Notice: Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Confirmation, or such other address as may have been notified by that party for such purposes. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
Remedies Not Exclusive: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
Status: Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name of, or on behalf of, or otherwise to bind the other in any way.
Third Party Rights: This Agreement governs the relationship between the Sponsor and MTW and does not create any third party beneficiary rights.
Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver: No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy.
In these MyTutor Engagement Terms (except where the context otherwise requires) the following words shall have the following meanings:
Agreement: refers to the contract between MTW and the Sponsor for the supply of the Services in accordance with these Conditions constituted by the Order Confirmation, these MyTutor Engagement Terms, and any documents referred to or hyperlinked therein unless expressly excluded.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date: has the meaning set out in Condition 2.2 and as set out in the Order Confirmation.
Cancellation Window: as referred to in Condition 5.7.
Condition(s): means these conditions set out in the MTW Engagement Service Terms as amended from time to time.
Contract: means the period during which, and the terms upon which, the Student is provided with Tutoring Services by any one Tutor as agreed.
Force Majeure Event: any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, inclement weather, disaster, civil riot or war).
Initial Term: as set out in Condition 11.1
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Legislation: all applicable laws, Acts of Parliament and Treaties and all orders, regulations, directives, conventions and subordinate legislation made pursuant to such an Act or Treaty or otherwise having the force of law.
Losses: means any claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses.
MTW Credit Bundle Payments: refers to the MTW Credits that are purchased by the Sponsor from MTW of an amount as set out in the Order Confirmation which will be used by the school to purchase the Tutoring Services from the Tutors as each Tutorial is undertaken subject to the Cancellation Window.
MTW Credits: represents the pre-paid credits held in the MTW Wallet which can be redeemed against the Tutoring Services purchased from, and provided by, the Tutors via the MTW Sites. One (1) MTW Credit represents one (1) pound sterling. MTW Credits shall be purchased in advance by the Sponsor in accordance with the Order Confirmation and shall be redeemed when a Student avails of the pre-booked Tutorials.
MTW Fees: refers to the payments made to MTW by the Sponsor in respect of the MTW Services.
MTW Materials: refers to all content on and off the MTW Sites that is owned by, or licensed to, MTW.
MTW Services: refers to the facilitation services set out in the Order Confirmation supplied by MTW to the Sponsor.
MTW Sites: as set out in the Order Confirmation.
MTW Wallet: refers to the online electronic wallet which holds Sponsor’s prepaid MTW Credits that can be redeemed against the booking of Tutoring Services on the MTW Sites
Normal Business Hours: [9.00 am to 5.00 pm local UK time], each Business Day.
Order: the Sponsor's order for Services as set out in the Sponsor's Order Confirmation which can be executed online via electronic signature (using DocuSign or a similar service) or manually as required.
Order Confirmation: the relevant order form agreed and executed by the parties which forms part of this Agreement.
Payment Due Date: as set out in the Order Confirmation in respect of the MTW Credit Bundle Payments and the MTW Fees.
Renewal Term: as set out in Condition 11.1
Services: refers to the MTW Services and the sale of the MTW Credit Bundles.
Sponsor: means the school contracting with MTW on behalf of itself insofar as this Agreement is concerned. The Sponsor is also contracting with the Tutor on behalf of itself and the Student. The Sponsor is the Student’s sponsor and has the legal contractual relationship with MTW in respect of the Services; and, with the Tutor in respect of the Tutoring Services. The Sponsor is responsible for the Student and for making the MTW Credit Bundle Payments to MTW.
Student: means a person who is a student at the Sponsor’s school and who will be receiving the Tutoring Services via MTW delivered by a Tutor and paid for by the Sponsor pursuant to an Order Confirmation.
Tutor means a tutor who has applied and been selected to join the MTW community of Tutors who wish to carry out Tutoring Services using the MTW Sites and the Services to do so.
Tutor Fees: represents the cashed in/ redeemed MTW Credits which are the equivalent amounts redeemed against the Tutoring Services paid by the Sponsor to the Tutor pursuant to a Contract.
Tutorial(s): refers to the online pre-booked 55-minute tutoring session which is booked by the Sponsor.
Tutoring Services: means the provision of online tutoring by a Tutor by way of individual Tutorials in real-time and, suitably tailored to meet the individual requirements of the Students.
Tutor Materials: refers to content relating to the Tutoring Services (including images (audio and/or visual), text, music, trademarks, symbols, logos and slogans).