This Independent Contractor Agreement (“Agreement”) constitutes a legal agreement between first name last name (“TEACHER”), an independent contractor/enterprise engaged in the business of educating students, and MML Media LLC (“mcHappy Music Lessons”), and shall govern TEACHER’s use of mcHappy Music Lessons’ website and technology platform (collectively, the “mcHappy Music Lessons Platform”).
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE ARBITRATION PROVISION IN SECTION 13, AS IT REQUIRES THE PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION. BY ELECTRONICALLY EXECUTING THIS AGREEMENT, TEACHER ACKNOWLEDGES THAT TEACHER HAS READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING SECTION 13, AND HAS TAKEN TIME TO CONSIDER THE CONSEQUENCES OF EXECUTING THIS AGREEMENT.
MML Media LLC/mcHappy Music Lessons operates an online technology platform that enables minors in need of online Music Lessons instruction (“Students”) and their parents to connect with and receive classes from TEACHERS in the business of providing such services. TEACHER desires to enter into this Agreement to give TEACHER the right to access and utilize the MML Media LLC/mcHappy Music Lessons Platform to generate business.
In consideration of the above, as well as the mutual promises described herein, TEACHER and MML Media LLC/mcHappy Music Lessons (collectively “the parties”) agree as follows:
1. USE OF THE MCHAPPY MUSIC LESSONS PLATFORM
A. Subject to the terms and conditions contained herein, this Agreement shall give TEACHER the right to utilize the MCHAPPY MUSIC LESSONS Platform, and to receive the agreed upon fees for each class TEACHER fully completes for Students in accordance with the terms of this Agreement, and the parameters of the class specified by the Student.
B. TEACHER shall have complete discretion to determine whether, when, and how often TEACHER will be available to teach classes for Students, and TEACHER shall have no obligation to be available to teach classes on any specific day, at any specific time, for any specific duration, or with any specific frequency, except as specifically agreed by TEACHER. Specifically, Students will only be able to reserve classes with TEACHER on days, and during times, that TEACHER chooses to be available. To facilitate such reservations, TEACHER agrees to select the days of the week, and times of day, during which TEACHER chooses to be available to teach classes for Students using the calendar feature. Students may then reserve classes with TEACHER at any time up to twenty-four (24) hours in advance of the class start time for the timeslots selected by TEACHER. TEACHER may also elect to allow Students to reserve classes with TEACHER at any time up to one (1) hour in
advance of the timeslots selected by TEACHER by confirming TEACHER’s agreement to the “24H Booking” feature. If a Student wishes to reserve a class with TEACHER less than twenty- four (24) hours in advance of the class start time, and TEACHER has not elected to use the “24H Booking” feature, MCHAPPY MUSIC LESSONS shall consult with TEACHER, and confirm TEACHER’s availability and willingness to teach the class, before any such reservation is finalized.
C. If a Student reserves a class with TEACHER on a day and time that TEACHER chooses to be available to teach classes for Students, TEACHER will be deemed to have “accepted” the class, and shall be contractually obligated to complete the class in accordance with the terms of this Agreement, and the specific parameters of the class specified by the Student. However, TEACHER retains the option to cancel classes subject to and in accordance with MCHAPPY MUSIC LESSONS’s then- current cancellation and no-show policy. TEACHER acknowledges and agrees that: (i) exceeding the maximum number of cancellations and/or no-shows, as set forth in MCHAPPY MUSIC LESSONS’s then-current cancellation and no-show policy, shall constitute a material breach of this Agreement; and (ii) cancelling a class with less than twenty-four (24) hours’ notice, or otherwise failing to appear for a class without having cancelled the class, may subject TEACHER to liquidated damages.
D. In addition to determining whether, when, and how often TEACHER will be available to teach classes arranged through the MCHAPPY MUSIC LESSONS Platform, TEACHER shall also have complete discretion to determine the location(s) in which TEACHER will be located when teaching classes, so long as: (i) the environment in the location(s) selected by TEACHER are suitable for teaching minors; and (ii) TEACHER possesses all licenses, certifications, permits and other legal prerequisites necessary to teach classes in such location(s).
E. TEACHER understands that Students and their parents may rate the quality of TEACHER’s services, and provide comments and/or feedback, which will be shown on the “Parent Feedback Tab” in the Teacher Portal and/or on the “Classroom” page.
F. Nothing in this Agreement shall be construed as a guarantee that TEACHER shall be guaranteed any particular number of classes during any particular time period.
2. TEACHER’S REPRESENTATIONS AND WARRANTIES, AND TEACHER’S PROVISION OF SERVICES TO STUDENTS
A. TEACHER represents that TEACHER is an independently established enterprise in the business of providing the educational services contemplated by this Agreement, and that TEACHER satisfies all legal requirements, and maintains all licenses, permits, and certificates, necessary to perform such services. TEACHER further represents that TEACHER has not previously signed an agreement with MCHAPPY MUSIC LESSONS to offer TEACHER’s services on the platform, using different personally identifying information.
B. TEACHER agrees to teach each class accepted pursuant to this Agreement in compliance with all applicable laws and regulations in the location in which TEACHER performs the class. TEACHER further agrees not to use the MCHAPPY MUSIC LESSONS Platform for any purpose that is unlawful or otherwise prohibited by this Agreement, or in any manner that could damage, disable, overburden, or impair the MCHAPPY MUSIC LESSONS Platform. TEACHER further agrees not to divert or recruit Students away from the MCHAPPY MUSIC LESSONS Platform for TEACHER’s own benefit, or the benefit of any
third party. TEACHER further agrees not to use offensive or derogatory language during classes, or discuss topics that may potentially be harmful, offensive, or otherwise sensitive in nature (e.g., sexual, violent, religiously or politically contentious, etc.).
C. Full Performance. TEACHER agrees to devote TEACHER’s best efforts, skills, and abilities to the performance of each class TEACHER accepts or is otherwise bound to complete under this Agreement. Generally, full performance will include, but is not limited to: (i) timely commencement of the class at the scheduled start time; (ii) full provision of the requested class and lesson, in accordance with the designated curriculum and parameters specified by the Student, for the full duration of the class, in a professional manner, consistent with industry standard, which may include reviewing the curriculum and/or the Student’s personal information in advance of the class, and encouraging the Student during the class, as deemed appropriate by TEACHER; and (iii) timely completion and submission of “Class Feedback” and/or “Unit Assessment” materials for Students.
D. TEACHER shall not be required to wear a uniform or other clothing of any type bearing MCHAPPY MUSIC LESSONS’s name or logo. TEACHER is free to wear any apparel or clothing of TEACHER’s choosing, including apparel or clothing advertising TEACHER’s business and services, when teaching classes arranged through the MCHAPPY MUSIC LESSONS Platform, so long as TEACHER maintains a professional appearance consistent with the standards generally adhered to in the profession.
E. As an independent contractor/enterprise, TEACHER shall be solely responsible for determining how to operate TEACHER’s business and how to teach classes arranged through the MCHAPPY MUSIC LESSONS Platform. MCHAPPY MUSIC LESSONS shall have no right to, and shall not, control the manner or prescribe the method TEACHER uses to teach classes. Instead, TEACHER shall be solely responsible for determining the most effective manner to perform the services relating to each class. The parties acknowledge and agree that any provisions of this Agreement reserving certain authority in MCHAPPY MUSIC LESSONS have been inserted solely to achieve compliance with federal, state, or local laws, rules, and interpretations thereof.
F. Non-Exclusive Arrangement. The parties recognize that both TEACHER and MCHAPPY MUSIC LESSONS are, or may be engaged in, similar arrangements with others. Nothing in this Agreement shall limit or restrict TEACHER from entering into arrangements with others that are similar to that created by this Agreement, or from performing teaching or tutoring services for other clients, or for or on behalf of any business, during or after the term of this Agreement.
G. No-Conflicts. TEACHER represents and warrants that TEACHER has no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude TEACHER from fully complying with the provisions of this Agreement, and further certifies that TEACHER will not enter into any such conflicting agreement during the term of this Agreement. This provision shall not be construed as preventing TEACHER from engaging in any other business activity, including competing business activities, so long as they do not violate this provision.
3. INDEPENDENT CONTRACTOR RELATIONSHIP
A. This Agreement is between two co-equal, independent business enterprises that are separately owned and operated. This Agreement creates the relationship of principal and
independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers or partners of each other for any purpose.
B. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
C. By electronically executing this Agreement, TEACHER represents and acknowledges that: (i) TEACHER understands that this Agreement creates the relationship of principal- independent contractor, not employer-employee; (ii) TEACHER specifically desires and intends to operate as an independent contractor; and (iii) as an independent contractor, TEACHER is not entitled to workers’ compensation benefits provided by MCHAPPY MUSIC LESSONS, or unemployment benefits following termination of the parties’ relationship, and TEACHER is required to pay all federal, state, and local income taxes on any monies earned pursuant to this Agreement.
4. TEACHER’S EQUIPMENT AND PERSONNEL
A. TEACHER shall be responsible for providing, solely at TEACHER’s expense, well- functioning equipment and supplies needed to teach classes for Students, including, but not limited to: headset(s), microphone(s), camera(s), computer(s), and an internet connection with adequate speed, all of which must satisfy the minimum device, system, and browser requirements for the MCHAPPY MUSIC LESSONS Platform. TEACHER shall direct in all aspects the operation of any and all equipment and supplies used in the performance of this Agreement and shall exercise full discretion and judgment as an independent business in determining the means and methods of performance under this Agreement.
B. TEACHER shall furnish at TEACHER’s own discretion, selection, and expense any and all personnel TEACHER engages in connection with TEACHER’s performance of services covered by this Agreement, including any teaching helpers or assistants. TEACHER shall be solely responsible for the direction and control of the personnel TEACHER engages in connection with TEACHER’s performance of services covered by this Agreement.
C. TEACHER is solely responsible for all costs and expenses arising from TEACHER’s performance of services covered by this Agreement, including, but not limited to, costs related to TEACHER’s equipment, supplies, and personnel, including wages, employment taxes, excise taxes, permits of all types, gross revenue taxes, internet costs, office space costs, computer equipment costs, and any other tax, fine or fee imposed or assessed against TEACHER by any government authority, including, but not limited to, any state, local, or federal authority as a result of an action by TEACHER or TEACHER’s employees, agents, or subcontractors in the performance of services covered by this Agreement. Unless mandated by law, MCHAPPY MUSIC LESSONS shall have no authority to withhold federal, state, or local income taxes, social security taxes, unemployment insurance taxes/contributions, or any other local, state or federal tax on behalf of TEACHER or TEACHER’s employees, agents, or subcontractors.
5. PAYMENT FOR CLASSES
A. In exchange for full performance of a class, TEACHER shall be entitled to receive the agreed upon fees for the applicable class type, as set forth in addenda to this Agreement.
Teacher Pay Rate is as follows:
$15.00 for 30 minute lesson
$22.00 for 45 minute lesson
$25.00 for 60 minute lesson
B. Payment for completed classes shall be transferred on a monthly basis. TEACHER acknowledges and agrees that MCHAPPY MUSIC LESSONS is only responsible for transferring payment to the bank account designated on the teacher portal or by issuing payment on pay card (if such option is available), monthly basis, as the case may be, in accordance with this Section, and that the particular date upon which TEACHER receives payment following the transfer may vary from bank to bank, or vary if TEACHER elects to be paid via pay card. MCHAPPY MUSIC LESSONS reserves the right to modify and/or change the payment schedule set forth in Section 5.B, by providing reasonable notice to TEACHER.
C. MCHAPPY MUSIC LESSONS shall report all payments made to TEACHER on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to TEACHER qualify. TEACHER agrees to report all such payments to the appropriate federal, state and local taxing authorities. Upon execution of this Agreement, TEACHER agrees to provide MCHAPPY MUSIC LESSONS with TEACHER’s business license number, if any, TEACHER’s federal employer identification number and/or Social Security Number, and TEACHER’s banking information, for payment processing and tax reporting purposes. TEACHER acknowledges that TEACHER may incur transfer fees imposed by TEACHER’s banking institution.
6. SERVICE FAILURES AND PAYMENT DISPUTES
A. If TEACHER fails to fully perform, in accordance with Section 2.C of this Agreement, a class TEACHER accepts or is otherwise contractually bound to complete in accordance with parameters specified by the Student, or the terms of this Agreement or addenda to this Agreement due to TEACHER’s action or omission, it shall constitute a service failure under this Agreement (a “Service Failure”), and TEACHER shall forfeit all or part of the agreed upon fees for that class. In addition, repeated Service Failures by TEACHER shall be a material breach of this Agreement. Additional information regarding Service Failures may be set forth in addenda to this Agreement.
B. Except as otherwise provided in this Agreement, any withholding of fees for a Service Failure shall be based upon proof provided by the Student, TEACHER, and any other party with information relevant to the dispute. MCHAPPY MUSIC LESSONS shall make the initial determination as to whether a Service Failure was the result of TEACHER’s action/omission. TEACHER shall have the right to challenge MCHAPPY MUSIC LESSONS’s determination in accordance with the Arbitration Provision (Section 13).
C. A Service Failure may also subject TEACHER to liquidated damages payable to MCHAPPY MUSIC LESSONS. If liquidated damages are assessed, TEACHER authorizes MCHAPPY MUSIC LESSONS to deduct those monies from any incentive fees MCHAPPY MUSIC LESSONS owes to TEACHER under the terms of this Agreement. The parties
acknowledge that liquidated damages are appropriate because actual damages are not reasonably ascertainable. Additional information regarding liquidated damages that may apply in the event of a Service Failure may be set forth in addenda to this Agreement.
D. If payment is owed to TEACHER under the terms of this Agreement, and such payment is not made in a timely manner, TEACHER shall have the right to seek payment in accordance with the Arbitration Provision (Section 13).
7. INDEMNITY
A. TEACHER agrees to indemnify, protect and hold harmless MCHAPPY MUSIC LESSONS from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, TEACHER’s actions (or omissions) arising from the performance of services covered by this Agreement, including liability for civil and/or criminal conduct, or any liability arising from TEACHER’s failure to comply with the terms of this Agreement. TEACHER’s obligations may include MCHAPPY MUSIC LESSONS’s cost of defense as well as the payment of any final judgment rendered against MCHAPPY MUSIC LESSONS.
B. TEACHER agrees to indemnify, protect and hold harmless MCHAPPY MUSIC LESSONS from any and all tax liabilities and responsibilities for payment of all applicable taxes, including, but not limited to all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contributions imposed or required under federal, state and local laws, that are owed by TEACHER with respect to TEACHER’s provision of services covered by this Agreement.
C. TEACHER shall be responsible for, indemnify and hold harmless MCHAPPY MUSIC LESSONS from all costs of TEACHER’s business, including, but not limited to, the expense and responsibility for any and all applicable local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
8. INSURANCE
A. TEACHER acknowledges and agrees that MCHAPPY MUSIC LESSONS shall not obtain or maintain insurance coverage of any kind, including workers’ compensation insurance, on behalf of TEACHER or any personnel TEACHER hires or engages.
B. During the term of this Agreement, to the extent required by law, TEACHER agrees to maintain insurance that will insure against any and all liabilities, damages, injuries or expenses that may arise from or result from the actions or omissions of TEACHER and any of TEACHER’s personnel. Such insurance may include, without limitation, workers’ compensation or occupational accident insurance (where permitted by law).
9. DISCLAIMERS
A. TEACHER acknowledges and agrees that TEACHER’s use of the MCHAPPY MUSIC LESSONS Platform is at TEACHER’s own risk. TEACHER further acknowledges and agrees that TEACHER is responsible for TEACHER’s interactions with Students or other third parties with whom TEACHER interacts in connection with TEACHER’s use of the MCHAPPY MUSIC LESSONS Platform.
B. MCHAPPY MUSIC LESSONS provides, and TEACHER accepts, use of the MCHAPPY MUSIC LESSONS Platform on an “as is” and “as available” basis, without warranty of any kind. Without limiting the foregoing, MCHAPPY MUSIC LESSONS hereby disclaims all warranties and conditions of merchantability, fitness for a particular purpose, workmanlike effort, title and non-infringement. MCHAPPY MUSIC LESSONS makes no representations about the suitability, reliability, availability, timeliness, and accuracy of the information, products, and/or services on the MCHAPPY MUSIC LESSONS Platform for any purpose. MCHAPPY MUSIC LESSONS also makes no representations, warranties, or guarantees with respect to the actions or inactions of Students, and expressly disclaims all liability for any act or omission of TEACHER, Student, or other third-party.
10. CONFIDENTIALITY
A. The parties understand that in the performance of this Agreement, they may disclose or otherwise be exposed to confidential and proprietary information (“Confidential Information”). Confidential Information includes, but is not limited to, the following: data regarding the identity and contact information of Students and their parents, MCHAPPY MUSIC LESSONS curriculum and related materials, class recordings, and business, financial, technical, or strategic information and such other non- public information of each party that such party designates as being proprietary or confidential or of which the other party should reasonably know should be treated as confidential. All Confidential Information shall remain the exclusive property of the disclosing party. Nothing in this Agreement shall be deemed to grant a party any rights in or to the Confidential Information disclosed by the other party, or any part thereof.
B. Except upon order of government authority having jurisdiction, the parties covenant and agree that they shall not disclose to third parties or use for their own benefit or the benefit of any third party, any Confidential Information disclosed by or belonging to the other party. However, TEACHER may utilize MCHAPPY MUSIC LESSONS curriculum and related materials when teaching classes arranged through the MCHAPPY MUSIC LESSONS Platform. In addition, the parties may disclose certain Confidential Information to their employees, agents, subcontractors and representatives (i) who have a reasonable need to know such Confidential Information to perform the services contemplated by this Agreement; (ii) who have been advised of the confidential nature of the information; and (iii) who have agreed in writing to be bound to obligations of confidentiality and non-use of Confidential Information no less protective than the terms set forth in this provision. The parties shall be responsible for any breach of this provision by their employees, agents, subcontractors and representatives.
C. The duty of non-disclosure shall not apply to information in the following circumstances: (i) the information was in the public domain at the time it was communicated to the recipient-party or subsequently enters the public domain through no fault of the recipient-party; (ii) the recipient-party can prove such information was independently developed by the party or was already known to the party at the time of receipt; (iii) such information was communicated rightfully to the recipient-party free of any obligation of nondisclosure and without restriction as to use; or (iv) such information is required to be disclosed by the recipient-party pursuant to judicial order or other compulsion of law, provided that the recipient-party shall promptly notify the other party of any such order and comply with any protective or similar order imposed on such disclosure. In the event of an unauthorized disclosure of Confidential Information, the recipient-party shall bear the burden of proving one or more of the above exceptions apply.
11. INTELLECTUAL PROPERTY
A. Ownership. As between TEACHER and MCHAPPY MUSIC LESSONS, MCHAPPY MUSIC LESSONS, as well as its subsidiaries, affiliates, related companies and licensees, own the MCHAPPY MUSIC LESSONS Platform, Hutong, and all future modifications to the MCHAPPY MUSIC LESSONS Platform and Hutong, including all Intellectual Property rights (as defined below) therein. Intellectual Property includes, without limitation, all trademarks, service marks, inventions, works of authorship, designs, know-how, ideas and information, software (including object code and source code), design, text, photographs, images, illustrations, audio, video, artwork, graphic material, or other copyrightable elements, and the selection and arrangements thereof, trademarks, service marks, trade names, trade dress, look and feel, patents, patentable material, and causes of action related thereto, including MCHAPPY MUSIC LESSONS curriculum and related materials, and recordings of classes arranged through the MCHAPPY MUSIC LESSONS Platform.
B. Neither this Agreement nor TEACHER’s use of the MCHAPPY MUSIC LESSONS Platform or Hutong conveys or grants to TEACHER any rights in or related to the MCHAPPY MUSIC LESSONS Platform or Hutong, except for the limited license granted below. Other than in connection with TEACHER’s performance of services covered by this Agreement, TEACHER agrees to not use MCHAPPY MUSIC LESSONS trademarks, logos or slogans, or any of MCHAPPY MUSIC LESSONS’s other intellectual property, for any commercial purposes, without MCHAPPY MUSIC LESSONS’s prior written consent.
C. Subject to the terms and conditions of this Agreement, MCHAPPY MUSIC LESSONS hereby grants TEACHER a non-exclusive, non-transferable, non-sublicensable, non-assignable license, during the term of this Agreement, to use the MCHAPPY MUSIC LESSONS Platform solely for the purpose of facilitating class reservations and teaching classes for Students. This Agreement does not grant TEACHER any rights in the MCHAPPY MUSIC LESSONS Platform, or the Intellectual Property rights therein, other than the right to utilize the MCHAPPY MUSIC LESSONS Platform in accordance with, and subject to, the terms and conditions of this Agreement. All rights not expressly granted to TEACHER are reserved by MCHAPPY MUSIC LESSONS and/or its subsidiaries, affiliates, related companies and licensees.
D. TEACHER acknowledges that classes arranged through the MCHAPPY MUSIC LESSONS Platform may be recorded to enable Students to access the class recordings for educational purposes, and TEACHER consents to such recordings. TEACHER further consents to the use and/or review of such recordings by MCHAPPY MUSIC LESSONS and its subsidiaries, affiliates, related companies and licensees for: (i) marketing and promotional purposes; (ii) safety and security reasons; (iii) assessing techonlogicial issues; and (iv) internal instructional and/or informational purposes. TEACHER also consents to the use by MCHAPPY MUSIC LESSONS and its subsidiaries, affiliates, related companies and licensees, of TEACHER’s name, portrait, likeness, appearance, and/or photograph, for marketing and promotional purposes. TEACHER agrees to treat any class recordings generated in connection with the performance of services covered by this Agreement as Confidential Information belonging to MCHAPPY MUSIC LESSONS, subject to the obligations specified in Section 10 of this Agreement.
E. To the extent any of the foregoing is ineffective under applicable law, TEACHER hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible. TEACHER will confirm any such ratifications and consents from time to time as requested by MCHAPPY MUSIC LESSONS.
12. TERM AND TERMINATION
A. This Agreement shall commence on the Effective Date (as defined below) and shall continue in effect for a period of approximately six (6) calendar months, from 2020-07-01 to 2020-12-31 (the “Initial Term”), or until terminated as follows, whichever occurs first:
i. At any time upon the mutual written consent of the parties hereto;
ii. If one party has materially breached the Agreement, immediately upon written notice to the breaching party, with such notice specifying the breach relied upon; and
iii. By either party without cause upon thirty (30) days’ written notice to the other party, with the date of mailing commencing the thirty (30) day period.
B. MCHAPPY MUSIC LESSONS may automatically renew this Agreement for additional six (6) month terms (the “Renewal Term”), unless TEACHER provides written notice that TEACHER does not want the contract renewed within thirty (30) days prior to the end of the Initial Term or Renewal Term. MCHAPPY MUSIC LESSONS’s renewal of this Agreement is subject to TEACHER’s submission to a background check in accordance with applicable law, if requested by MCHAPPY MUSIC LESSONS. TEACHER agrees that the terms of the Agreement shall remain the same for each Renewal Term, unless modified by MCHAPPY MUSIC LESSONS.
C. Effective Date. If TEACHER has not previously entered into an agreement with MCHAPPY MUSIC LESSONS to use the MCHAPPY MUSIC LESSONS Platform, or if TEACHER’s prior agreement with MCHAPPY MUSIC LESSONS has already expired, “Effective Date” shall mean the date immediately following the date on which this Agreement is electronically executed by TEACHER (Beijing Time). If TEACHER is currently a party to an agreement with MCHAPPY MUSIC LESSONS to use the MCHAPPY MUSIC LESSONS Platform or entering into this Agreement to renew an existing agreement with MCHAPPY MUSIC LESSONS that is still in effect, “Effective Date” shall mean the date immediately following the expiration date of the existing agreement.
D. The following shall constitute a material breach of this Agreement: i. Repeated Service Failures by TEACHER;
ii. TEACHER’s submission of false information to MCHAPPY MUSIC LESSONS, including for the purpose of obtaining fees to which TEACHER is not entitled, and TEACHER’s establishment of multiple accounts on the MCHAPPY MUSIC LESSONS Platform for fraudulent purposes;
iii. TEACHER or someone with access to TEACHER’s account engages in conduct that a reasonable person would find threatening, highly offensive, harassing, or abusive, in connection with TEACHER’s performance of services covered by this Agreement, or TEACHER is otherwise found to be unprofessional or unsuitable to provide services arranged through the MCHAPPY MUSIC LESSONS Platform, in the reasonable opinion of MCHAPPY MUSIC LESSONS;
iv. Failure by MCHAPPY MUSIC LESSONS to transfer all fees due and owing within thirty (30) days of the date the amount became due under this Agreement;
v. TEACHER engages in conduct that, in the reasonable opinion of MCHAPPY MUSIC LESSONS, may injure or tend
to injure MCHAPPY MUSIC LESSONS or the reputation of MCHAPPY MUSIC LESSONS;
vi. TEACHER uses offensive or derogatory language during classes, or discusses topics that may potentially be harmful, offensive or otherwise sensitive in nature (e.g., sexual, violent, religiously or politically contentious, etc.);
vii. TEACHER’s repeated receipt of low ratings or negative comments and feedback from Students and their parents;
viii. TEACHER exceeds the maximum number of class cancellations and/or no-shows set forth in MCHAPPY MUSIC LESSONS’s then-current cancellation and no-show policy during the Initial Term or a Renewal Term of this Agreement;
ix. TEACHER engages or hires a third-party to teach a class arranged through the MCHAPPY MUSIC LESSONS Platform on behalf of TEACHER or under TEACHER’s MCHAPPY MUSIC LESSONS account, or a third-party otherwise gains access to TEACHER’s MCHAPPY MUSIC LESSONS account due to TEACHER’s action or omission and the third-party engages in inappropriate behavior;
x. TEACHER fails to provide tools, equipment and supplies needed to fully perform services covered by this Agreement, or TEACHER’s equipment fails to satisfy the minimum technological, system, and browser requirements for use of the MCHAPPY MUSIC LESSONS Platform;
xi. TEACHER has and/or had more than one teaching account registered on the platform at the same time, and/or MCHAPPY MUSIC LESSONS previously terminated TEACHER’s contract;
xii. TEACHER fails to consent to a required background check administered in accordance with applicable law, or TEACHER fails to pass a background check administered with TEACHER’s consent in accordance with applicable law; or
xiii. Violation of any law or regulation governing the provision of services in connection with any class arranged through the MCHAPPY MUSIC LESSONS Platform, including failure to maintain all licenses and certifications required for performance of the services contemplated by this Agreement.
The above list is not exhaustive. In addition, TEACHER acknowledges and agrees that if TEACHER materially breaches the Agreement, MCHAPPY MUSIC LESSONS may, in its sole discretion, limit or restrict TEACHER’s access to the MCHAPPY MUSIC LESSONS Platform, with or without notice.
E. Obligation upon Contract Termination. Upon termination of this Agreement for any reason, TEACHER agrees to immediately, at TEACHER’s sole expense, return to MCHAPPY MUSIC LESSONS any documents or other property of MCHAPPY MUSIC LESSONS in TEACHER’s possession, including any Confidential Information.
13. ARBITRATION PROVISION
A. ARBITRATION OF CLAIMS: In the event of a dispute between the parties, the parties agree to resolve the dispute as described in this Section (the “Arbitration Provision”). This Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. § 1, et seq.) and evidences a transaction involving commerce. In the event, but only in the event, the Arbitrator or a court
determines the Federal Arbitration Act does not apply, the state law governing arbitration agreements in the state in which TEACHER performs the majority of services covered by this Agreement shall apply. This Arbitration Provision applies to any past, existing or future claim, regardless of the date of its accrual, brought by either TEACHER or MCHAPPY MUSIC LESSONS, arising out of or related to this Agreement, TEACHER’s relationship with MCHAPPY MUSIC LESSONS, including without limitation, TEACHER’s classification as an independent contractor or termination of the relationship with MCHAPPY MUSIC LESSONS, and TEACHER’s provision of services to Students, whether arising under federal, state, or local law. The terms of this Arbitration Provision will remain in force after the parties’ contractual relationship ends. Except as it otherwise provides, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration. this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration ON AN INDIVIDUAL BASIS, and not by way of court or jury trial, or by way of class, collective, OR REPRESENTATIVE action.
i. Claims Covered by Arbitration Provision. Unless carved out below, claims involving the following disputes shall be subject to arbitration under this Arbitration Provision regardless of whether brought by TEACHER, MCHAPPY MUSIC LESSONS or any agent acting on behalf of either: (1) disputes arising out of or related to this Agreement; (2) disputes arising out of or related to TEACHER’s relationship with MCHAPPY MUSIC LESSONS, including without limitation, disputes concerning TEACHER’s classification as an independent contractor, or termination of the relationship with MCHAPPY MUSIC LESSONS; (3) TEACHER’s provision of services to Students; and (4) except as otherwise set forth in Section 13.B, Class Action Waiver, below, disputes arising out of or relating to the interpretation or application of this Arbitration Provision, including the validity, enforceability, revocability, conscionability, scope, or breach of the Arbitration Provision, or any portion of the Arbitration Provision. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, meal or rest periods, expense reimbursement, uniform maintenance, training, termination, retaliation, discrimination or harassment and claims arising under the Defend Trade Secrets Act, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Civil Rights Act of 1964, 42 U.S.C. §1981, the Rehabilitation Act, the Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, the Pregnancy Discrimination Act, Equal Pay Act, Employee Retirement Income Security Act (except for claims for employee benefits under any benefit plan sponsored by MCHAPPY MUSIC LESSONS and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, and state or local statutes or regulations addressing the same or similar subject matters, and all other federal, state, and/or local statutory and legal or common law claims (including, without limitation, torts) arising out of or relating to this Agreement, TEACHER’s relationship with MCHAPPY MUSIC LESSONS, including without limitation, disputes concerning TEACHER’s classification as an independent contractor, or termination of that relationship, and TEACHER’s provision of services to Students. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all such disputes between TEACHER and MCHAPPY MUSIC LESSONS’s officers, agents, employees, fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, all of which are intended
third-party beneficiaries of this Arbitration Provision. MCHAPPY MUSIC LESSONSS International, Inc. is an intended third-party beneficiary of this Arbitration Provision.
ii. Limitations on Application of This Arbitration Provision. This Arbitration Provision does not apply to claims for workers’ compensation, state disability insurance, or unemployment insurance benefits. This Arbitration Provision does not prevent TEACHER from filing unfair labor practice charges with the National Labor Relations Board (www.nlrb.gov). MCHAPPY MUSIC LESSONS will not retaliate against TEACHER for filing such a charge. Nothing in this Arbitration Provision prevents TEACHER from making a report to or filing a claim or charge with a government agency, including, without limitation, the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Nothing in this Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. This Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on those claims, even if the claims would otherwise be covered by this Arbitration Provision. Nothing in this Arbitration Provision prevents or excuses a party from satisfying any conditions precedent and/or exhausting administrative remedies under applicable law before bringing a claim in arbitration. MCHAPPY MUSIC LESSONS will not retaliate against TEACHER for filing a claim with an administrative agency or for exercising rights (individually or in concert with others), if any, under Section 7 of the National Labor Relations Act.
B. CLASS ACTION WAIVER: MCHAPPY MUSIC LESSONS and TEACHER mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective and/or representative action (“Class Action Waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Provision, or the JAMS Comprehensive Arbitration Rules & Procedures (discussed below), disputes regarding the validity, enforceability, revocability, conscionability, scope or breach of the Class Action Waiver may be resolved only by a court and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that all or part of the Class Action Waiver is invalid or unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. The Class Action Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration. The parties recognize that controlling law in California holds that the right to pursue private attorney general representative actions on behalf of the State of California pursuant to the California Labor Code may not be waived by a private, pre-dispute agreement, and therefore are not subject to this Class Action Waiver and may be maintained in a court of law. However, the parties agree that a claim TEACHER brings as an allegedly aggrieved worker for recovery of underpaid wages or other individual relief (as opposed to a representative claim for civil penalties) is arbitrable and subject to this Class Action Waiver. Further, to the extent there is any controlling judicial determination providing that the right to pursue private attorney general representative actions on behalf of the
State of California pursuant to the California Labor Code may be waived by a private, pre- dispute agreement, the parties agree any such determination shall apply to this Arbitration Provision and Class Action Waiver.
C. ARBITRATION PROCEDURE: The Arbitrator will be selected by mutual agreement of TEACHER and MCHAPPY MUSIC LESSONS. Unless TEACHER and MCHAPPY MUSIC LESSONS mutually agree otherwise, the Arbitrator will be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason the parties cannot agree to an Arbitrator, then the Arbitrator will be selected using the strike and rank method from a list of five (5) neutral arbitrators provided by JAMS. If the parties cannot agree to an Arbitrator, and JAMS is unavailable, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court will then appoint an Arbitrator, who will act under this Arbitration Provision with the same force and effect as if the parties had selected the Arbitrator by mutual agreement, or through the strike and rank method. Unless the parties agree otherwise, the JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”) will apply to the arbitration; however, if there is a conflict between the JAMS Rules and this Agreement, this Agreement shall govern. The JAMS Rules are available here: http://www.jamsadr.com/rules-comprehensive-arbitration/. The location of the arbitration proceeding will be no more than forty-five (45) miles from and in the same state where TEACHER performed services covered by this Agreement, unless each party to the arbitration agrees in writing otherwise. If TEACHER no longer resides or operates in the general geographical vicinity where TEACHER performed services covered by this Agreement, TEACHER and MCHAPPY MUSIC LESSONS will agree to a location of the arbitration within forty-five (45) miles of where TEACHER currently resides or operates, provided it is within the same state in which TEACHER performed services covered by this Agreement and the parties cannot agree to an alternative location.
i. In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard will be resolved by the Arbitrator. A party, or the Arbitrator, at a party’s request, may subpoena witnesses or documents for discovery purposes or for the arbitration hearing.
ii. All claims in arbitration are subject to the same statutes of limitation that would apply in court. A demand for arbitration must be in writing and delivered by hand or first class mail to the other party within the applicable statute of limitations period. The demand for arbitration shall include identification of the parties, a statement of the legal and factual basis of the claim(s), and a specification of the remedy sought. Any demand for arbitration by TEACHER must be delivered to Legal Department, MCHAPPY MUSIC LESSONSS International, Inc., 301 Howard Street, STE 910, San Francisco, CA, 94105 and by emailing to offshore@MCHAPPY MUSIC LESSONS.com.cn. The Arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy in accordance with applicable law, and any such application shall not be deemed incompatible with or waiver of this agreement to arbitrate. The court to which the application is made is authorized to consider the merits of the arbitrable controversy to the extent it deems necessary in making its ruling, but only to the extent permitted
by applicable law. All determinations of final relief, however, will be decided in arbitration.
D. ATTORNEYS’ FEES AND ARBITRATION COSTS: Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. Costs incidental to the arbitration, including the cost of the Arbitrator and the meeting site (“Arbitration Costs”), will be borne by MCHAPPY MUSIC LESSONS and TEACHER equally, unless otherwise required by applicable law. Any dispute regarding a party’s obligation to pay Arbitration Costs will be determined by the Arbitrator. In the event TEACHER contends that, as a matter of law, TEACHER is not responsible for payment of any or part of TEACHER’s portion of the Arbitration Costs, TEACHER will have no obligation to pay that portion of the contested Arbitration Costs until, and only if, the Arbitrator determines that TEACHER is responsible for those costs. If necessary for arbitration of the dispute, MCHAPPY MUSIC LESSONS agrees to cover the amount of the Arbitration Costs contested by TEACHER until such time as the Arbitrator determines payment responsibility. If the Arbitrator determines that TEACHER is responsible for any amount of the Arbitration Costs already paid by MCHAPPY MUSIC LESSONS, TEACHER will remit payment of that amount to MCHAPPY MUSIC LESSONS within thirty (30) days of the Arbitrator’s determination, and if the arbitrator determines that MCHAPPY MUSIC LESSONS is responsible for any amount of the Arbitration Costs already paid by TEACHER, MCHAPPY MUSIC LESSONS will remit payment of that amount to TEACHER within thirty (30) days of the Arbitrator’s determination.
E. POST-ARBITRATION PROCEDURES: Within thirty (30) days of the close of the arbitration hearing (which period may be extended by stipulation of the parties), any party will have the right to prepare, serve on the other party and file with the Arbitrator a post-arbitration brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies will be limited to those that would be available to a party in his or her or its individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Arbitration Provision. The Arbitrator shall apply applicable controlling law, and will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the parties. A court of competent jurisdiction will have the authority to enter a judgment upon the award made pursuant to the arbitration.
F. RIGHT TO CONSULT WITH AN ATTORNEY; ENFORCEMENT: TEACHER has the right to consult with private counsel of TEACHER’s choice with respect to any aspect of, or any claim that may be subject to, this Arbitration Provision. In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
14. MISCELLANEOUS
A. Entire Agreement, Modification, and Survival. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and supercedes and replaces any previously executed agreements related to the subject matter herein. This Agreement shall not be modified, altered, changed or amended in any
respect, unless in writing and executed by both parties, with only one exception. Specifically, MCHAPPY MUSIC LESSONS reserves the right to revise the Agreement, other than the Arbitration Provision, from time to time upon thirty (30) days’ written notice to TEACHER, and TEACHER acknowledges and agrees that by using the MCHAPPY MUSIC LESSONS Platform after such revisions are made and such notice is provided, TEACHER will be deemed to have consented to, and TEACHER will be bound by, the revised Agreement. The Arbitration Provision may not be modified, altered, changed, or amended in any respect, unless in writing and executed by both parties. This Agreement supersedes any prior contract between the parties with respect to the subject matter of this Agreement. Sections 3, 7, 10, 11, 12.C, 13 and 14 of this Agreement shall survive termination of this Agreement.
B. Governing Law. Except as otherwise stated in the Arbitration Provision, which is governed by the Federal Arbitration Act, this Agreement shall be governed by the laws of the state in which TEACHER performs the majority of services covered by this Agreement, or if not applicable, the laws of the state of Delaware, without giving effect to any conflict or choice of law rules.
C. Captions. Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
D. Failure to Enforce. Failure of either party to enforce strictly any provision of this Agreement shall not be construed as a waiver thereof, or as excusing the other party from future performance.
E. Assignment. This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that MCHAPPY MUSIC LESSONS may assign its rights and obligations under this Agreement to an affiliate of MCHAPPY MUSIC LESSONS or any successor to its business and/or purchaser of substantially all of its assets. This provision shall not be construed as limiting TEACHER’s right to engage others to assist TEACHER in connection with TEACHER’s performance of services covered by this Agreement, including teaching helpers or assistants. However, TEACHER acknowledges and agrees that, for safety and security reasons, and because Students select specific teachers to personally teach their classes, TEACHER may not engage or hire others to teach classes arranged through the MCHAPPY MUSIC LESSONS Platform on behalf of TEACHER, or under TEACHER’s MCHAPPY MUSIC LESSONS account.
F. Savings Clause. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be invalid, unenforceable or void, the remainder of this Agreement and such term, provision, covenant or condition as applied to other persons, places and circumstances shall remain in full force and effect.
G. Canada Rider. To the extent TEACHER performs services in Canada, this Agreement shall be deemed modified pursuant to the Canada Rider, incorporated by this reference, so as to comply with federal and provincial law in Canada. In the event of any inconsistency between the provisions in this Agreement and the provisions in the Rider, the provisions in the Rider shall prevail with respect to any services TEACHER performs in Canada. Any services TEACHER
performs in the United States shall remain subject to and governed by the Agreement.
THIS IS AN IMPORTANT LEGAL DOCUMENT THAT CREATES CONTRACTUAL RIGHTS AND OBLIGATIONS FOR BOTH TEACHER AND MCHAPPY MUSIC LESSONS. TEACHER ACKNOWLEDGES AND REPRESENTS THAT TEACHER HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION, AND HAS HAD SUFFICIENT TIME AND OPPORTUNITY TO CONSULT WITH FINANCIAL, TAX, AND LEGAL ADVISORS PRIOR TO ELECTRONICALLY EXECUTING THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto enter into and execute this Agreement on the dates specified below.
MCHAPPY MUSIC LESSONS/MML MEDIA LLC TEACHER