WHEREAS, the Company is engaged in the business of tutoring, test preparation, and college counseling for Students from Elementary School through University Level (“Services”); and
WHEREAS, the Company has confidential information, which includes, but is not limited to its teaching processes and methodologies that warrant protection and are considered protected confidential and intellectual property pursuant to State, Federal and International law; and
WHEREAS, the Company has invested a significant amount of time and effort in hiring, vetting, and training each its Employee/Tutor (“Employee/Tutor”); and
WHEREAS, the Parent/Student agrees and acknowledges that each employee has signed a non-compete agreement with Company and Parent/Student are not allowed to solicit any services from Employee outside of this agreement; and
WHEREAS, the Company desires to employ the Employee and Employee is willing to accept such employment by the Company, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE in consideration and receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties hereby agree and acknowledge and incorporate the above mentioned recitals and all of the foregoing provisions:
Services provided by the Company will never be conducted in the home of Employee/Tutor.
Student: To ensure that your time is respected, as well as the time of our other Students and the Employee/Tutor, appointments will promptly begin at their scheduled time, regardless of the time of your arrival or when the Student is available to begin the session. No adjustment to fees shall be made for time lost, because of late arrival by the Student or by early termination of session by the Student, nor will the tutor be able to extend your appointment to accommodate the loss in time.
Employee/Tutor: Any lost time because of the late arrival of the Tutor shall be compensated for by extending a lesson by mutual agreement and by such amount of time that was lost.
SELECTION OF TUTOR
Employee/Tutor: The Company will select a Tutor based on the Student’s needs, which are based in part on the answers to the Parent/Student questionnaire. In addition, the Company screens each Employee/Tutor based on their knowledge, experience, professionalism and personality, and we tried to properly match the Student’s needs with the Tutor’s knowledge, experience and ability.
In addition, to the foregoing, as part of Company’s Service, the Company thoroughly checks all references and runs a criminal background check on each Employee/Tutor.
Substitution of Employee/Tutor: Though the Company will try not to substitute any Employee/Tutor once assigned to a Student; the Company reserves the right to substitution any Employee/Tutor for any reason, including, but not limited to performance of the Tutor and/or Student’s needs, medical emergency of the Employee/Tutor and/or for any reason that the Company believes in its sole discretion substitution is necessary.
PAYMENT OF SERVICES
Payment for Services. The Parties, which includes any party responsible for payment, if different than Student, hereby acknowledge and agree that as consideration for the Services provided by Company to Student, Parent/Student shall pay to Company ___ per session. (“Consideration”), which has been designated in the Parent/Tutor Agreement.
Payment Schedule. Company hereby agrees to provide to Student/Parent invoices for the Services performed by Company on a biweekly basis for payment. Student/parent hereby acknowledges and agrees to pay any and all invoices submitted by Company to Student/Parent within 14 days of receipt of such invoices by Student/Parent.
The Parties must provide the Company a working credit card to keep on File. If the Student/Parent fail to pay in accordance with any provision of this agreement, then the Company will charge the credit card that is on file.
The Parties hereby acknowledge and agree that Student/Parent shall pay any and all invoices received by Company either by check, certified check, money order, credit card, wire transfer, or by such other means as the Parties may agree in writing to the Company. Student/Parent should never pay any Employee/Tutor directly. However, in the event Student/Parent pays with either wire transfer, credit card or Student/Parent agrees to pay for the processing fee for the same as well. In addition, Student and/or Parent/Guardian agrees that in the event of a dispute between the parties with regards to payment or otherwise., Student and/or Parent/Guardian agree and forever waives their right to dispute any credit card, or wire transfer charge for payments for services rendered by Company and agree to resolve any dispute arising out of this agreement pursuant to Paragraph titled Dispute Resolution.
The Parties hereby acknowledge and agree that any amounts that become due and owing under this Agreement will be subject to any applicable taxes and interest imposed pursuant to Florida Law.
Out of Pocket Expenses. The Parties hereby acknowledge and agree that Parent/Student shall not be responsible for the payment of any of the Company’s out-of-pocket expenses incurred by Company in relation to performance of the Services set forth herein, unless otherwise agreed by the Parties in writing.
Cancellation of Lesson by Student. The Student may cancel any session by giving at least 24 hours prior notice to the Employee/Tutor, in which case no fee for the session will be incurred. Lessons not attended by the student without giving 24 hours prior notice to the Employee/Tutor shall be charged at 50% of the full rate.
Cancellation of Lesson by Employee/Tutor. The Tutor may cancel lessons by giving 24 hours prior notice to the Student in which case no fees shall be incurred. Where a lesson was pre-paid, the Tutor shall reschedule the appointment at a time agreeable to both parties.
REPRESENTATIONS, WARRANTIES AND OBLIGATIONS BETWEEN THE PARTIES
Company/Employee/Tutor. The Tutor undertakes to do all preparation prior to lessons and to structure lessons in such a way as to optimize time to the benefit of the Student.
The Tutor shall keep confidential all information of the Student and shall contact other parties involved in the education of the Student only if given written permission by the Student and/or Parent/Guardian to do so.
The Tutor shall at no time be required or obliged to execute homework or assignments on behalf of the Student.
Weekly summaries and interaction with third parties where necessary.
The Company and/or Tutor makes no promises, guarantees or expressed and/or implied warranties of any kind with regards to a Student’s performance. Effective communication is essential to achieving your child’s educational goals. • If at any time you are dissatisfied with our services, please notify us so that we can make appropriate changes of personnel or techniques. We welcome the opportunity to improve our services, but we can fix something that is bothering you unless we know about it.
The Tutor shall at no time assist with the completion of non-standard examinations. This includes, but is not limited to “Take Home” tests and online Tests/Quizzes.
The Tutor will follow the Beck Method to increase student’s academic performance.
The Tutor will never allow a Student to enter, ride, or drive in a Tutor’s vehicle.
BEFORE, DURING, AFTER TUTORING SESSION PROCEDURES.
Before the Tutoring Session Begins. The Tutor will contact the parent and the student in the same text message or email explaining upcoming assignments and/or exams. The Tutor should take the guidance of the Parent and/or Student as to which assignments to complete in order of priority. Before the Tutor arrives, the Student and/or Parent should have all of the material readily available in the designated study area.
During the Tutoring Session. The Tutor will begin by giving instruction on assignments in order in which the Parent and/or Student dictated in the Pre-Tutoring Session communication. The Student and/or Parent should further elaborate on the area of the weakness or lack of understanding that the Student is experiencing. This allows the Tutor to maximize the amount of time needed to provide the student with the proper instruction in the target problematic areas.
After the Tutor has provided all of the necessary instruction to the Student, the Tutor will utilize the Beck Method to evaluate whether the Student has mastered the concepts taught in the lesson.
The Tutor will continue these procedures through out the tutoring session until either the time of the tutoring session has ended or all of the assignments mentioned in the Pre-Tutoring Session communication have been completed.
After the Tutoring Session Ends. Once the Tutor has completed the tutoring session, the Tutor will send either a text message or email to the Parent and/or Student, which communicates the assignments that have been completed and the assignments that require further attention addressed in pre-tutoring session communication, along with a brief description of the Student’s behavior which includes but is not limited to the student’s concentration, motivation, retention, etc.
If any stages in the Before, During, and After Tutoring Session Procedure has not been followed, then a Beck College Prep manager must be notified immediately. The Beck College Prep manager will then further investigate the issue and ameliorate the situation by communicating with the party not complying for the procedure to create a solution to help ensure the ideal tutoring session.
Student. The Student undertakes to assist the Tutor in identifying problem areas in which the Student needs specific tutoring.
The Student agrees that assignments, exercises or homework form an integral part of tutoring and undertakes to complete such work timely.
To make adequate progress and ensure eventual success, a student must come to each tutoring session with all required materials, including awareness of assignments. If the student is unprepared, the session may be reduced in length or cancelled at the discretion of the tutor and will be billed at the normal rate.
Notify Company and Tutor of any special instructions or safety concerns when attending the session.
Indemnification, LIMITATION OF LIABILITY
Minors. Where the Student is a legal minor, the Parent/Guardian shall enter into this Agreement on behalf of the Student and shall accept and agree to all the terms and conditions contained herein on behalf of the Student and will also be personally responsible for all Services and Fees set forth in this agreement, including, but not limited to any violation of the Restrictive Covenants. Nothing herein shall be construed as limiting Company’s right to seek payment from either the Student or Parent, without notice or any additional formality, which may normally be required as a condition precedent to seeking third party payment from the Parent/Guardian. Student and Parent/Guardian herein forever waive any such right to notice and/or any condition precedents that maybe required pursuant to law in seeking payment from either Student and/or Parent/Guardian first. Further, nothing herein shall be construed as relieving Student of any responsibility for payment as consideration for services received by Company for any reason.
Company’s Employee/Tutors: is responsible for any act, action or conduct of the Employee/Tutor within the scope of services provided in this Agreement only; Company is not responsible for the acts, actions or conduct of the Tutor, Student, Parent/Guardian or Third Party that is outside of the scope of the Company’s Services.
The Parties agree that in the event the Company is liable or must indemnify either the Student, Parent/Guardian or any Third Party for any reasons, whether in contract, tort, or otherwise (including negligence), arising directly out of or in connection with this Agreement or the performance or observance of Company’s obligations under this Agreement and every applicable part hereof shall be limited to the aggregate amount of the Consideration. In no event shall Company be liable for including, but not limited to any indirect or consequential loss or damages.
Nothing contained in this agreement, shall serve to limit or exclude any Party’s liability for any intentional, criminal or grossly negligent acts arising from the Party’s own act or conduct.
Non- Solicitation AND Confidentiality.
Non-Solicitation Covenant: Student and Parent/Guardian agrees that for a period of twenty-four (24) months, which commences upon the last day in which any Employee/Tutor of Company provides his or her last Service, Student and/or Parent/Guardian will not directly or indirectly solicit, induce, recruit, encourage or otherwise endeavor to cause or attempt to cause any Employee of the Company to terminate or reduce their relationship with the Company for any reason.
Knowledge of existing non compete agreement with Employee. Student and/or Parent acknowledges that the Employee/Tutor has an existing non-compete agreement in place with Company and that any solicitation for additional services or services outside of the scope of the Agreement with Company is prohibited, including, but not limited to extending tutoring sessions, working off schedule hours, etc.
Finder’s Fee. Should Employee/Tutor commence working, whether directly, indirectly or through a third party associate of Student and/or Parent in any capacity outside of the scope of Company’s Services during any period of time in which this agreement is in enforce or for a period of twenty four (24) months after the termination of this Agreement for any reason without Company’s prior written consent, Student and/or Parent agree to pay Company a finder’s fee of five thousand dollars ($5000).
Confidentiality. During employment, and anytime thereafter, Student and/or Parent agree that his/she shall not disclose to anyone any Confidential Information of the Company’s. The Company possesses, or may in the future possess, certain valuable trade secrets, proprietary data and confidential information that has been created, discovered or developed by, or has otherwise become known to, the Company (including, without limitation, information created, discovered, developed by or made known to Student and/or Parent in the course of his or her Services by the Company), or in which the Company has proprietary rights (whether by license, assignment or otherwise). All such information, whether known on the date hereof or become known hereafter, is collectively referred to as “Confidential Information”, which term shall include, without limitation, trade secrets, unpublished patent applications, processes, formulae, data, know-how, developments, designs, improvements, inventions, techniques, laboratory notebooks, marketing, research and development, clinical and business development plans, new products, software, software documentation, contract terms, licenses, prices and costs; provided, however, that “Confidential Information” shall not include information (i) in the public domain by publication through no fault of the Student and/or Parent or (ii) lawfully received by the Student and/or Parent from a third party who was under no obligation of confidentiality with respect thereto.
Injunctive Relief/Irreparable Harm to the Company. Student and Parent/Guardian acknowledges that the specialized nature of Company’s Employee’s, knowledge of the Company’s proprietary information, trade secrets and other intellectual property are such that a breach of Employee’s covenant not to compete and/or the Student’s and Parent/Guardian’s covenant not to solicit contained in this Section of this Agreement would inflict unique and irreparable harm upon the Company and that the Company shall be entitled, in addition to its other rights and available remedies, to enforce, by injunction or decree of specific performance, set forth in this Section. In addition, to the remedies available law and this Agreement, Employee agrees that any such violation of this provision or any provision of Section 4, 5 or 6, Employee agrees that it would be difficult to determine the loss to Company and therefore in additional to Company’s right to seek injunctive relief, specific performance and other monetary damage, Employee agrees to pay liquidated damages of $250 per day for each day in which Employee is in violation of any of the restrictive covenants set forth herein.
TERMINATION OF AGREEMENT
Termination. This Agreement may be terminated by either party, at any time by giving the other party 7 days prior written notice.
Either Party may terminate this Agreement effective immediately, upon written notice to the other Party or if any of the following events occur:
If either Party to this Agreement is in breach of any of its obligations contained in this Agreement and such breach is not remedied within 14 days of written notice from the other Party; or if Student and/or Parent breaches any of the provisions set forth in this agreement.
Any termination of this Agreement shall not affect any of the accrued rights or liabilities of either Party to this Agreement and shall not affect the coming into force or the continuance in force of any provision contained herein that is expressly or by implication intended to come into or continue in force on or after such termination which shall include, but is not limited to the restrictive covenants set forth in Paragraph 5.
The Parties hereby agree that any disputes or disagreements respecting the negotiation, performance, or interpretation of this Agreement, shall be resolved as follows:
The Parties shall attempt to resolve any dispute by dealing with each other directly first;
Disputes related payment and services only. In the event that the Parties cannot resolve the dispute within 30 days after the dispute arises, then each of the Parties shall, within 7 days thereafter, appoint an arbitrator, and the two arbitrators so appointed will, within 7 days after their appointments, agree upon the appointment of a third arbitrator, who must be an arbitrator with educational and teaching experience and a non-attorney. If the Parties fail to appoint an arbitrator within the 7 day time limit outlined above, then that Party shall be deemed to have forfeited its right to appoint an arbitrator, and the arbitrator appointed by the other Party shall appoint one other arbitrator, and both of those arbitrators shall agree upon the appointment of a third arbitrator. Once all three arbitrators have been appointed, the Parties shall present the dispute to the three arbitrators at the earliest time or times designated by the three arbitrators, and the three arbitrators shall resolve the dispute on the basis of a majority decision. The Parties agree that the Florida Rules of Civil Procedure and Evidence apply to all motions and final hearing during Arbitration. The Parties agree to split the cost of arbitration equally without prejudice to the prevailing party’s rights to collect all cost and fees associated with the arbitration, including, but not limited to any arbitration fees, all arbitrator fees, witness expenses, court reporter and attorney fees. In the event, one of the Parties is unable or unwilling to pay for their share of arbitration fees either prior or at any time during the arbitration proceedings, then the other Party shall have the right to move the proceedings to any State or Federal Court within Miami-Dade County and forever waives their right to any defense and/or right to compel further arbitration by the other party. Further all such fees to date incurred by the other Party in the Arbitration shall be reimbursed to the non-breaching Party immediately, regardless of whether or not the non-breaching Party ultimately wins in State or Federal Court. Such decision of the arbitrators shall be final and binding on the Parties, unless there has been an objection to a Discovery ruling and/or application of the Florida Rules of Procedure and Evidence on record (record shall be by any means during the proceedings including, but not limited to by motion, transcript, ruling, letter of record, etc.) during any portion of the Arbitration proceeding and/or Final hearing. In the event any objections as set forth above occurs, the Parties shall have the right to appeal the arbitrators’ decision to a Court of competent jurisdiction for appellate review. Should no such objection be raised, then neither Party shall have any further right of appeal to any other party, body, authority, or court, except those provided for in the Arbitration Organization rules or Federal Arbitration Act exceptions.
In addition, the Parties agree to use either AAA or JAMS in the event of a conflict. In the event of a dispute, as to which of the following organizations the Parties will use, the Parties agree to use the organization with the least administrative cost for the proceedings.
If disputes that arise due to non-payment of any of the provisions in this agreement, then the matter should be resolved in a court of competent jurisdiction.
Survival, Assignment and Benefit.
This Agreement may not be assigned by Student and/or Parent. The terms of this Agreement shall survive the termination of the Services to the Student by the Company and shall inure to the benefit of and be binding upon the Parties hereto and their respective successors, heirs and assigns.
The section headings contained herein are for the purposes of convenience only and are not intended to define or limit the contents of said sections.
In the event of a breach by either Party including, but not limited to this agreement, the non prevailing party shall be responsible for the prevailing party’s expenses, including, without limitation, reasonable attorneys’ fees, court reporter and court costs, incurred in enforcing any of the covenants of this Agreement and any appeals if applicable.
Any notices that may be required pursuant to this agreement or any obligation arising there from, shall be sent to the following addresses listed below. Should there be any change in the information listed below after the execution of this Agreement, that Party is responsible for notifying Beck College Prep.
This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to any conflict of law principles of any other jurisdiction. Further, any disputes or action that may rise as a resulting of this Agreement between the Parties shall be brought exclusively in either a AAA or JAMS office and/or Court of competent jurisdiction in Miami-Dade County only.
Each Party hereto shall cooperate and shall take such further action and shall execute and deliver such further documents and provide any information that may reasonably necessary and/or requested by the other Party in order to carry out the provisions and purposes of this Agreement.
This Agreement may be executed in counterparts, all of which taken together shall be deemed one original.
Each provision of this Agreement shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. The Parties agree that should any portion of this Agreement, including, but not limited to the Non-solicitation and Confidentiality provision of Section 5, be found to be unreasonable and/or unenforceable as written, the Parties agree to allow the Arbitration Panel and/or Court to modify the unenforceable provision to the extent necessary and sufficient to make the provision enforceable and protect the Company’s interest.
Entire Agreement And Drafting of this Agreement.
This Agreement supersedes all prior and contemporaneous agreements and understandings between the Parties hereto, oral or written, and may not be modified or terminated except in writing and executed by both Parties. The drafting of this Agreement was the product of both Parties, therefore any ambiguity or interpretation of any contract provision or language that may arise shall not be held against either party.
Amendments and Waiver.
This Agreement may not be altered, modified or waived in whole or in part, except in writing, signed by the Student and/or Parent and the Company. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. The Student and/or Parent agrees that any change or changes in the scope of Services, including, but not limited to the duration of the Services after the signing of the Agreement shall not affect the validity or scope of this Agreement and all remaining and/or unmodified provisions will remain in full force, unless otherwise amended or modified in accordance with this Agreement.