TAGG EDUCATION, LLC. (“Tagg”) Terms of Service
These Terms of Service (the “Agreement”) constitute a legally binding agreement between you and TaggEducation, LLC (“Company” or “Tagg”) governing your use of the Tagg Platform (as defined below), Company’s website (https://www.taggeducation.com or the “Site”) or mobile/desktop applications (the “Apps”). The Tagg platform and related services provided by Company, the Site, and Apps, including without limitation communications and information (whether in writing, orally, or otherwise howsoever) provided by Company to potential and actual Substitutes and Clients in relation to the services, together are hereinafter collectively referred to as the “Tagg Platform.”
In order to use the Tagg Platform, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Tagg shall be bound by the terms and conditions set forth herein.
PLEASE NOTE: THIS AGREEMENT GOVERNS HOW DISPUTES BETWEEN YOU AND TAGG CAN BE RESOLVED. IT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 16). PLEASE READ CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING IF APPLICABLE YOUR RIGHT TO OPT OUT OF ARBITRATION.
IN ADDITION, BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE, WITHOUT LIMITATION OR QUALIFICATION; TO BE BOUND BY THIS AGREEMENT (INCLUDING THE DISPUTE RESOLUTION AND ARBITRATION PROVISIONS) AND YOU ACCEPT ALL OF ITS TERMS.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE TAGG PLATFORM.
You must be 18 years old and at least the legally required age in the jurisdiction in which you reside, and otherwise capable of entering into binding contracts, in order to use or access the Tagg Platform.
Period of absence: A day, multiple consecutive days, or any portion of a day, in which a regular teacher is absent from working in his or her classroom.
Job: A period of absence made available through the Tagg Platform for fulfillment by a substitute.
Job Rate of Pay: The amount of money, determined by the School, minus any User Fee(s) due to Tagg as provided herein, that a substitute will be paid by the School upon completion of providing Substitute Teaching Services on a given period of absence. This amount will be displayed to the substitute prior to his or her acceptance to provide services on a given period of absence. Any fees due to Tagg from the School will be subtracted from this amount before it is displayed to the substitutes through the Tagg Platform.
Long Term Substitutes: Individuals hired as employees by the School to provide long term Substitute Teaching Services.
Long Term Substitute Teaching Services: Provision of teaching services for longer than twenty (20) school days in a classroom when the regular teacher is absent.
Platform User(s): School administrators, School teachers, and substitutes who use the Tagg system.
Tagg Platform: Any and all web-based, mobile, or other electronic device enabled technology platform(s) (collectively “platform”) offered currently or in the future by Tagg to facilitate connections between substitutes and a school. The platform allows platform users to rate their experiences with one another, providing valuable feedback for more refined decision-making by the other platform users. The platform includes integration with Stripe, allowing for automated payment between the School and the substitutes, and collection by Tagg of its user fee. Tagg Platform includes all functions and features as presently available on the platform, or as may be altered, improved, or changed in the future.
Tagg System: The Tagg Platform, strategic recruitment of independent contractor substitutes to use the Tagg Platform to provide a large and diverse pool of substitutes, and additional support to ensure proper functionality for the platform users.
School: Can mean any school or school district, and their agents, who utilize the Tagg Platform to procure Substitute Teaching Services from Substitutes.
Stripe: Stripe is a full-stack payments platform that it is anticipated will facilitate payments from the School to substitutes as an integrated component of the Tagg Platform. Tagg may utilize a different company or method, including a non-technology based method, for facilitating the requisite payments, and if so, that company or method will be substituted herein for any references to Stripe.
Substitutes: Contractors who provide Substitute Teaching Services to Schools, and who find jobs on the Tagg Platform. Substitutes are not at any time to be considered as employees of Tagg. While it is anticipated that the Substitutes are to be independent contractors of schools, Tagg makes no representations about the proper classification of the substitutes’ work with a school.
Substitute Teaching Services: Provision of day-to-day, partial day, or other temporary teaching services for twenty (20) days or less in a school classroom when the teacher is absent.
Total Rate of Pay: The total amount of money, determined by the School, that the School will pay upon completion of a job by a substitute through the Tagg Platform. The User Fee(s) due to Tagg will be calculated based on this amount.
User Fee(s): The amount of money charged to the School in exchanging for utilizing the Tagg System.
You acknowledge and agree that Tagg is a technology services provider that provides a platform to connect schools to providers of substitute teaching services. Tagg does not provide Substitute Teaching Services. Tagg is not hiring you to provide Substitute Teaching Services.
In order to use the Tagg Platform, you must agree to the terms and conditions that are set forth below. Upon your execution (electronic or otherwise) of this Agreement, you and Tagg shall be bound by the terms and conditions set forth herein.
IMPORTANT: PLEASE REVIEW THIS AGREEMENT CAREFULLY. IN PARTICULAR, PLEASE REVIEW THE MUTUAL ARBITRATION PROVISION IN SECTION 16.2.
1. GENERAL PROVISIONS
The parties, hereby, agree to abide by all applicable provisions of the Agreement. The parties agree that Tagg will provide the following, in accordance with the terms and conditions of this Agreement: (a) Upon approval of a Substitute, Tagg will provide access to the Tagg Platform, allowing School’s to post Jobs or request Substitute for specific Jobs; (b) Tagg will put forth diligent effort to add more Schools to the Tagg Platform to add jobs for potential fulfilment by the Substitute. Nothing herein shall be construed, whatsoever, as a promise or guarantee that the Substitute will be able to secure Jobs; (c) The Tagg Platform will provide the School the ability to set the rate of pay for an upcoming Job for view by the Substitute; (d) If requested, Tagg will provide a basic training to all substitutes about how to use the Tagg Platform; (e) Tagg will ensure that any substitutes using the Tagg Platform must first provide to Tagg and/or the School the appropriate, satisfactory evidence of any legally applicable licensure, fingerprinting, and background checks. Substitute hereby agrees to allow Tagg to provide copies of this evidence on behalf of substitutes to the School upon request. i. Tagg will immediately remove any substitute from the Tagg Platform if it receives any new information regarding the substitute’s background or activities which makes him or her unfit to be a substitute. (f) At the School’s request, Tagg will block any substitute from accepting jobs at the School.
The parties agree that the Substitute will do the following: (a) The Substitute may provide his or her services to any School outside of the Tagg Platform as he or she determined, except that the Substitute agrees to exclusively use the Tagg Platform for provision of the substitute teaching services needed by a School who utilizes the Tagg Platform. If a Substitute attempts to solicit or discuss providing substitute teaching services to a School that utilizes the Tagg Platform outside of the Tagg Platform, such Substitute shall be subject to immediately removal from the Tagg Platform, and any other remedies available to Tagg at law or equity. i. The previous provision notwithstanding, the School may engage substitutes who use the Tagg Platform outside of the Tagg Platform only for long-term substitute teaching services. The School may use the Tagg Platform, including its ratings of the substitutes, to inform its decision-making process for hiring a long term substitute, or use the Tagg Platform to hire long-term substitutes. If the School hires a substitute who uses the Tagg Platform as a long term substitute or a full-time teacher the School agrees to pay a finder’s fee equivalent to 10% of the first 12 months of the teacher salary to be paid to Tagg upon hire. (b) The School and Substitute will be solely responsible for determining the rate of pay for a given period of absence. (c) While Tagg will provide a platform for the School and the substitute to interact, the School will be ultimately responsible for working with the Substitute on issues like the environment in which the substitutes perform their work, coordinating any details of the work, including, without limitation, the rules, policies, and procedures of the school, and ensuring lesson plans, as needed, are delivered to the substitutes or that the substitutes produce their own lesson plans. (d) The Substitute will not seek pay or attempt to be paid by a School that uses the Tagg System outside of the Tagg System for substitute teaching services.
(a) The Substitute agrees to not reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Tagg System, except as expressly permitted in this Agreement. (b) The Substitute agrees to not decompile, reverse engineer or disassemble the Tagg Platform except as may be permitted by applicable law.
(a) The Tagg System exists to facilitate engagements and payments between the School and substitutes. Tagg is not a party to any of the agreements, contracts or engagements formed between the School and the substitutes through the Tagg Platform. (b) The parties agree that the substitutes utilized through the Tagg Platform are not, under any circumstances, to be considered the employees of Tagg. (c) Tagg is the creator of a technology platform that creates a marketplace to connect potential Schools with Substitutes. Through the Tagg Platform, Schools may connect with a network of Substitutes with whom they may arrange to procure Substitute Teaching Services. Tagg and Substitutes intend that Substitutes will provide the services to Schools strictly as an independent contractor, and not as an employee, worker, agent, joint venturer, partner or franchisee of Tagg or any School for any purpose, other than for provision of Long Term Substitute Teaching Services. Tagg does not provide Substitute Teaching Services, nor does it employ or contract with individuals to perform Substitute Teaching Services. Tagg’s role is limited to offering the Tagg System and the Tagg Platform for Schools and Substitutes to connect, and facilitating payments from Schools to Substitutes and related administrative support. Tagg does not make any representations regarding the Substitutes’ employment classification with Schools. (d) Tagg and Substitutes acknowledge and agree that the services provided under this Agreement are outside the usual course of Tagg’s business and that the services will be performed outside all places or locations of Tagg’s business.
1.4 The Tagg Platform.
(a) Access to the Tagg Platform will allow Substitutes to have access to potential job listings or be requested for jobs by Schools. From time to time, in their sole and complete discretion, Schools will post or make requests for Jobs on the Tagg Platform, setting forth the nature of the substitute teaching Job requested. Jobs posted or requested will include, at a minimum, the date, timeframe for completion, school, grade level, subject area, and Job Rate of Pay. Schools may request a specific Substitute through the Platform. Substitutes have the opportunity to review the Jobs and select or accept those Jobs as they determine in their sole discretion. Substitutes can create preferences for certain types of Jobs based on criteria such as areas of interest, location, and date/time. Tagg does not guarantee any minimum number of jobs will be available to Substitutes at any point during the term of this Agreement. Subject only to the limitation set forth in Section 9.1, Substitutes are not obligated to review the Jobs posted or requested or select any Jobs posted or requested by any School at any time. Once a Substitute selects a Job, the platform will confirm the Job has been booked by the Substitute. Once a Job is booked, a contract is formed directly between the School and Substitute for Substitute to complete the Job. Substitute hereby appoints Tagg to be its disclosed agent for the purposes of entering into such a contract with the School. Substitute agrees that Substitute’s name, phone number, likeness, or any other profile information provided by the Substitute may be provided or made available to School by or on behalf of Tagg.
1.5 Background Checks and Fingerprinting
(a) Before receiving access to the Tagg Platform, Substitute must submit to and pass a background check and fingerprint check in accorded with applicable laws related to fingerprints and background checks for those working in schools. Tagg conducts background checks and fingerprinting in accordance with applicable law and Tagg policies. Substitute agrees to allow Tagg to share the results of any such fingerprint and background check screening with Schools.
1.6 Student Records.
(a) Student records are defined for purposes of this Agreement in the same manner as defined under the Family Educational Rights Protection Act of 1974, 20 U.S.C. § 1232(g); 34 CFR Part 99 (“FERPA”). (b) This Agreement is subject to all of the definitions, requirements, rights, exceptions, and other provisions of FERPA, and both parties will act accordingly. (c) The Substitutes recognizes and agrees that, for purposes of FERPA, Substitute will only use student records for a legitimate educational interest and only as needed carry out the substitute teaching services. (d) Substitute agrees to treat all student records confidentially and only disclose information as permitted under applicable law, regulation, or rule.
(a) Confidential information is defined as any material information that is non-public or proprietary, whether written or oral, disclosed through any means of communication or observation by either party to the other party, regardless if the information is obtained incidentally or purposefully. (b) Each party agrees to not disclose any confidential information to unauthorized persons without the written consent of the other party, or except as permitted under applicable law for the sole purpose of carrying out the legitimate provisions of this Agreement. (c) The parties agree to exercise reasonable care to protect confidential information against accidental or unauthorized access, modifications, disclosures, or destruction. (d) Both parties agree to abide by all applicable federal and state laws, and policies of the School or Tagg regarding confidentiality and privacy. (e) Both parties agree to not, under any circumstances, share any access codes, passwords, or the like with any unauthorized individuals without the written permission of the other party.
2. THE SERVICES
2.1 Substitute Services.
(a) By agreeing to the required terms and conditions to have access to the Tagg Platform, Substitute shall be eligible to book Jobs through the Tagg Platform requesting any services that Substitute is qualified to provide. Substitute shall, upon request, provide proof to Tagg of all necessary licenses, transcripts, or certifications before Substitute provides any such services under this Agreement, and agrees to allow Tagg to share such licenses, transcripts, or certifications with Schools.
2.2 Job Completion.
(a) To ensure that the Tagg Platform remains a reliable source of referrals and to ensure all Substitutes are able to have access to available Jobs, once a Substitute has accepted a Job, Substitute is obligated to complete the Job within the timeframe specified by the School, and to the satisfaction of the School. Substitute may not cancel the Job without advance notice of at least 2 hours to School and Tagg, except in the case of an unavoidable emergency, in which case, Substitute shall notify School and Tagg as soon as practicable. Cancellation by Substitute may result in termination of this Agreement in accordance with Section 9. (b) Substitute understands and agrees that Substitute’s failure to complete a Job in accordance with School’s expectations after he or she has booked that Job using the Platform constitutes a material breach of this Agreement and could result in termination of this Agreement in accordance with Section 9.
2.3 Ratings and Feedback.
(a) Substitute acknowledges that the Tagg Platform is intended to refer Schools only to those Substitutes who maintain the highest standards of professionalism and quality of service. Substitute acknowledges that Schools may rate, review, and provide feedback to a Substitute at the end of every Job. This information will be viewable by other Schools as they make their selections for future Jobs. As a condition of using the Tagg Platform, Substitute agrees to maintain high standards of professionalism and service, including but not limited to maintaining appearance and grooming standards consistent with industry standard, and maintaining a School rating at or above the minimum acceptable rating, as determined by Tagg in its sole discretion, for continued access to the Tagg Platform. Tagg reserves the right to deactivate the Substitute’s access to the Tagg Platform, in its sole discretion, in response to any ratings or feedback received.
2.4 No Control.
(a) Substitute shall be, at all times while this Agreement is in effect, both under the terms of this Agreement and in fact, free from control and direction of Tagg in the performance of the services. Tagg shall not control or have any right to control the manner or means by which Substitute performs services, including but not limited to the time and place Substitute performs services, the amount of money the Substitute is paid, the Jobs Substitute selects, or the manner in which Substitute completes the Job. The manner or means shall be determined between the School and the Substitute, generally through the Tagg Platform. Those provisions of the Agreement reserving ultimate authority in Tagg have been inserted solely to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
2.5 No Teaching Material.
(a) Tagg does not provide any teaching material or otherwise direct in any way the content to be used by Substitute’s for the completion of any Job. What is to be taught and how it is to be taught remains within the control of the Substitute and the School.
3. USER FEES AND PAYMENTS
3.1 User Fees.
(a) School shall be responsible to pay Substitute for completed Jobs through the Tagg Platform at the rates quoted at the time the Job is posted on the Tagg Platform, which shall be based on the stated parameters of the Job Daily Rate. Each Job made available to Substitute on the Platform shall set forth the Job Daily Rate. The difference between the Total Rate of Pay and the Job Daily Rate shall be the User Fee owed to Tagg by the School for referring the Job and facilitating the payment from School to Substitute. (b) Modifications to pay rates and fees will be effective upon notification to Substitute through the Platform and will supersede any and all prior versions. By accepting this Agreement, Substitute authorizes Tagg to withhold Tagg’s User Fee and any other applicable fees from the payment made to the Substitute for each Job.
(a) When a Job is complete, payment will be transmitted to Substitute via Stripe or some other process, so long as Substitute has completed the steps necessary to set up a direct deposit account or provided those details necessary to ensure payment via the selected payment processing procedure. This will occur on at least a monthly basis. (b) If applicable, Tagg will provide a report to the Schools for payments paid to Substitute under this Agreement to allow the filing of the appropriate Form 1099 with the Internal Revenue Service as required by law.
4. EQUIPMENT AND OPERATIONS
4.1 Technology Device.
(a) In order to book Jobs, Substitute must possess a computer, tablet, smartphone, or similar device equipped with access to the internet and the Tagg Platform.
4.2 Costs of Operation.
(a) Substitute is solely responsible for any costs or expenses incurred by Substitute in connection with the operation of Substitute’s principal place of business and the performance of Substitute Teaching Services, and in no event shall Tagg reimburse, or be required to reimburse, Substitute for any tools, materials, costs or expenses.
4.3 Tagg Identification.
(a) For security reasons, and to ensure School can confirm Substitute’s identity, Tagg may provide to Substitute a badge or some other form of identification. Substitute will have no obligation to wear or display the badge or other form of identification except insofar as necessary to confirm the identity of the Substitute to the School.
4.4 Use of Voice, Image and Likeness.
(a) Substitute gives Tagg permission to use any and all of Substitute’s voice, image, likeness, and any ratings and reviews from Schools about Substitute, with or without using Substitute’s name, in connection with the products and/or services available through the Tagg Platform, for the purposes of advertising and promoting such products and/or services and/or Tagg, for the purposes of identifying Substitute to School, and/or for other purposes deemed appropriate by Tagg in its reasonable discretion, except to the extent expressly prohibited by law.
5. RELATIONSHIP OF THE PARTIES
5.1 No Services to Tagg.
(a) Substitute has not been engaged by Tagg to perform services on Tagg’s behalf. Rather, Substitute has entered into this Agreement for the purpose of having access to the Tagg Platform and the exclusive marketplace for Substitute Teaching Services providers created by Tagg, in exchange for which Schools pay Tagg a fee. Substitute represents that he or she is customarily engaged in an independently established trade, occupation, profession and/or business, offering services to public and/or private schools, and/or Substitute represents that he or she maintains a principal place of business in connection with Substitute’s trade, occupation, profession and/or business that is eligible for a business deduction for federal income tax purposes. This Agreement shall not be construed to create any association, partnership, joint venture, employee, worker or agency relationship between Substitute and Tagg for any purpose.
5.2 No Benefits.
(a) Substitute, as an independent contractor, understands that Substitute will not be eligible to participate in any benefit plans offered to any School’s or Tagg’s employees, including, but not limited to, vacation, group medical or life insurance, disability, profit sharing or retirement benefits or any other fringe benefits or benefit plans offered by any School or by Tagg to its employees.
5.3 No Tax Witholdings.
(a) As Substitute is an independent contractor, Tagg will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including unemployment or disability, or obtaining workers’ compensation insurance on Substitute’s behalf.
5.4 No Agency
(a) Substitute has no authority (and shall not hold himself or herself out as having authority) to bind Tagg, and Substitute shall not make any agreements or representations on Tagg’s behalf without Tagg’s prior written consent.
6. PUBLIC AREAS; ACCEPTABLE USE
6.1. Public Areas
The Tagg Platform may contain profiles, email systems, blogs, message boards, reviews, ratings, applications, job postings, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and materials that are relevant and proper to the applicable forum. For the safety and integrity of the Tagg Platform, you should not share your personal contact information with other Users.
Without limitation, while using the Tagg Platform, you may not: (a) Defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead or otherwise violate the legal rights (such as, but not limited to, rights of privacy, confidentiality, reputation, and publicity) of others, including Users and Tagg staff, or use information learned from the Tagg Platform or during the performance of duties to otherwise defame, abuse, harass, stalk, threaten, intimidate, misrepresent, mislead, or otherwise violate the legal rights of any other User or Company staff; (b) Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information on the Tagg Platform; (c) Use the Tagg Platform for any unauthorized purpose, including, but not limited to posting or mentioning an act in violation of local, state, national, or international law; (d) Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any User, third party, or Company; (e) Upload files that contain viruses, Trojan horses, corrupted files, or any other similar software that may damage the operation of another’s computer; (f) Post or upload any content to which you have not obtained any necessary rights or permissions to use accordingly; (g) Advertise or offer to sell any goods or services for any commercial purpose through the Tagg Platform which are not relevant to the services offered through the Tagg Platform; (h) Conduct or forward surveys, contests, pyramid schemes, or chain letters; (i) Impersonate another person or a User or allow any other person or entity to use your identification to post or view comments; (j) Post the same job repeatedly (“Spamming”). Spamming is strictly prohibited; (k) Download any file posted by another User that a User knows, or reasonably should know, cannot be legally distributed through the Tagg Platform; (l) Restrict or inhibit any other User from using and enjoying the Public Areas; (m) Imply or state that any statements you make are endorsed by Tagg, without the prior written consent of Tagg; (n) Use a robot, spider, manual, meta tag, “hidden text,” agent, robot, script, and/or automatic processes or devices to data-mine, data-crawl, scrape, collect, mine, republish, redistribute, transmit, sell, license, download, manage or index the Tagg Platform, or the personal information of others, in any manner; (o) Frame or utilize framing techniques to enclose the Tagg Platform or any portion thereof; (p) Hack or interfere with the Tagg Platform, its servers or any connected networks; (q) Adapt, alter, license, sublicense or translate the Tagg Platform for your own personal or commercial use; (r) Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Tagg and Affiliates; (s) Upload content to the Tagg Platform that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred, sexual abuse, or physical harm of any kind against any individual or group of individuals; (t) Upload content that provides materials or access to materials that exploit people in an abusive, violent or sexual manner; (u) Use the Tagg Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to use of the Tagg Platform as set forth herein; (v) Use the Tagg Platform to collect usernames and or/email addresses of Users by electronic or other means; (w) Use the Tagg Platform or the services in violation of this Agreement; (x) Use the Tagg Platform in a manner that is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes; (y) Attempt to circumvent the payments system or service fees in any way including, but not limited to, processing payments outside of the Tagg Platform, providing inaccurate information on invoices, or otherwise invoicing in a fraudulent manner; (z) Register under different usernames or identities after your account has been suspended or terminated, or register under multiple usernames or false identities, or register using a false or disposable email or phone number; or (aa) Cause any third party to engage in the restricted activities above.
You understand that all submissions made to Public Areas will be public and that you will be publicly identified by your name or login identification when communicating in Public Areas. Tagg will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
7. TERMINATION AND SUSPENSION
(a) Company may terminate or limit your right to use the Tagg Platform in the event that we are investigating or believe that you have breached any provision of this Agreement (a “User Breach”), by providing you with written or email notice. Such termination or limitation will be effective immediately upon delivery of such notice. (b) If Company terminates or limits your right to use the Tagg Platform pursuant to this Section 4, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. If Company terminates or limits your right to use the Tagg Platform as a Client due to a User Breach, you will not be entitled to any refund of unused balance in your account. (c) Even after your right to use the Tagg Platform is terminated or limited, this Agreement will remain enforceable against you. Company reserves the right to take appropriate legal action. (d) Company reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Tagg Platform at its sole discretion. Company is not liable to you for any modification or discontinuance of all or any portion of the Tagg Platform. Company has the right to restrict anyone from completing registration as a User if Company believes such person may threaten the safety and integrity of the Tagg Platform, or if, in Company’s discretion, such restriction is necessary to address any other reasonable business concern. (e) You may terminate this Agreement at any time by ceasing all use of the Tagg Platform. All parts of this Agreement which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
8. ACCOUNT, PASSWORD, SECURITY, AND MOBILE PHONE USE
You must register with Company and create an account to use the Tagg Platform (an “Account”). You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any log-in, password, and account number provided by you or given to you by Company for accessing the Tagg Platform. You are solely and fully responsible for all activities that occur under your password or account, even if not authorized by you. If you are accessing and using the Tagg Platform on someone else’s behalf, you represent that you have the authority to bind that person as the principal to all Terms provided herein. Company has no control over the use of any User’s account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you agree to contact Company immediately.
8.2. Mobile Phone Use.
By providing your mobile phone number and using the Tagg Platform, you hereby affirmatively consent to Tagg’s use of your mobile phone number for calls and recurring texts, (including with an autodialer and/or prerecorded voice) in order to (a) perform and improve upon the Tagg Platform, (b) facilitate the carrying out of duties through the Tagg Platform, (c) provide you with information and reminders regarding your registration, orientation, upcoming jobs, product alterations, changes and updates, service outages or alterations. These calls and texts may include, among other things, reminders about uncompleted or upcoming jobs and/or in follow up to any push notifications delivered through our mobile application. Company will not assess any charges for calls or texts, but standard message charges or other charges from your wireless carrier may apply. You may opt-out of receiving texts messages from us by modifying your account settings on the Site or Apps, or by emailing Tagg and specifying you want to opt-out of texts. You may opt-out of receiving calls from us by stating that you no longer wish to receive calls during any call with us, or by emailing Tagg and specifying you want to opt-out of calls.
9. USER GENERATED CONTENT
9.1. User Generated Content.
“User Generated Content” is defined as any information and materials you provide to Company, its corporate partners, or other Users in connection with your registration for and use of the Tagg Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for User Generated Content, and we act merely as a passive conduit for your online distribution and publication of your User Generated Content. You acknowledge and agree that Tagg is not involved in the creation or development of User Generated Content, disclaims any responsibility for User Generated Content, and cannot be liable for claims arising out of or relating to User Generated Content. Further, you acknowledge and agree that Tagg has no obligation to monitor, review, or remove User Generated Content, but reserves the right to limit or remove User Generated Content on the Tagg platform at its sole discretion.
You hereby represent and warrant to Company that your User Generated Content (a) will not be false, inaccurate, incomplete or misleading; (b) will not be fraudulent or involve the sale of counterfeit or stolen items; (c) will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary right or rights of publicity or privacy; (d) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (e) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (f) will not be obscene or contain pornography (including but not limited to child pornography) or be harmful to minors; (g) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) will not represent you being employed or directly engaged by or affiliated with Tagg or purport you to act as a representative or agent of Tagg; and (i) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers.
The Tagg Platform hosts User Generated Content relating to reviews and ratings of specific Users (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Company, has not been verified or approved by Company and each Client should undertake their own research to be satisfied that a specific User is the right person for a job. You agree that Company is not responsible or liable for any Feedback or other User Generated Content. Company encourages each User to give objective, constructive and honest Feedback about the other Users with whom they have transacted. Company is not obligated to investigate any remarks posted by Users for accuracy or reliability but may do so at its discretion.
You hereby grant Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise all copyrights, publicity rights, and any other rights you have in your User Generated Content, in any media now known or not currently known in order to perform and improve upon the Tagg Platform.
Each User who provides to Company any videotape, film, recording, photograph, voice, or all related instrumental, musical, or other sound effects, in exchange for the right to use the Tagg Platform, hereby irrevocably grants to Company the non-exclusive, fully-paid, royalty-free, transferable, sublicensable, worldwide, unrestricted, and perpetual right to: (a) Exhibit, distribute, display, transmit, and broadcast on any and all media, including, without limitation, the internet, any videotape, film, recording or photograph that such User provides to Company or that Company takes of User, and use, reproduce, modify, or creative derivatives of such User picture, silhouette and other reproductions of their physical likeness (as the same may appear in any still camera photograph and/or motion picture film or video) (collectively the “Physical Likeness”); (b) Reproduce in all media any recordings of such User’s voice, and all related instrumental, musical, or other sound effects (collectively, the “Voice”), made in connection with the Tagg Platform; (c) Use, and permit to be used, such User’s Physical Likeness and Voice in the advertising, marketing, and/or publicizing of the Tagg Platform in any media; and (d) Use, and permit to be used, such User’s name and identity in connection with the Tagg Platform.
Each User hereby waives all rights and releases Tagg and Affiliates from, and shall neither sue nor bring any proceeding against any such parties for, any claim or cause of action, whether now known or unknown, for defamation, invasion of right to privacy, publicity or personality or any similar matter, or based upon or relating to the use and exploitation of such User’s identity, likeness or voice in connection with the Tagg Platform.
Each User acknowledges that Tagg shall not owe any financial or other remuneration for using the recordings provided hereunder by such User, either for initial or subsequent transmission or playback, and further acknowledges that Tagg is not responsible for any expense or liability incurred as a result of such User’s recordings or participation in any recordings, including any loss of such recording data.
10. LINKS TO THIRD-PARTY WEBSITES
The Tagg Platform may contain links (such as hyperlinks) to third-party websites. Such links do not constitute endorsement by Company or association with those websites, their content or their operators. Such links (including without limitation external websites that are framed by the Tagg Platform as well as any advertisements displayed in connection therewith) are provided as an information service, for reference and convenience only. Company does not control any such websites, and is not responsible for their (i) availability or accuracy, or (ii) content, advertising, products, or services. It is your responsibility to evaluate the content and usefulness of the information obtained from other websites. You acknowledge and agree that Tagg is not involved in the creation or development of third-party websites and disclaims any responsibility for third-party websites, and cannot be liable for claims arising out of or relating to third-party websites. Further, you acknowledge and agree that Tagg has no obligation to monitor, review, or remove links to third-party websites, but reserves the right to limit or remove links to third-party websites on the Tagg platform at its sole discretion.
PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.
Company makes no effort to review any SNS Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Company is not responsible for any SNS Content.
11. REPRESENTATIONS AND WARRANTIES
(a) Substitute represents and warrants to Tagg that: (a) Substitute has the legal right to provide the services that are contemplated by this Agreement in the jurisdiction in which Substitute plans to provide Substitute Teaching Services and has the required skill, experience, and qualifications to perform the services; (b) Substitute shall perform services in a professional and diligent way, including keeping confidential any and all confidential information of the School or students, (c) Substitute shall perform services in accordance with all applicable laws, rules and regulations, including the rules and policies of the School, and (d) Substitute answered all questions honestly and accurately during registration on to the Tagg Platform. Substitute acknowledges that his/her failure to comply with the foregoing shall constitute a material breach of this Agreement and may result in termination of access to the Tagg Platform
(a) Substitute shall defend, indemnify and hold harmless Tagg and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable legal fees) arising out of or resulting from: (a) bodily injury, harassment, sexual harassment, sexual assault, or sexual misconduct of any kind, death of any person, theft or damage to real or tangible, personal property resulting from Substitute’s acts or omissions; and (b) Substitute’s breach of any representation, warranty, or obligation under this Agreement (c) any claims, suits, or actions related to this provision, including any such claims brought by Substitute or by any third party with respect to any claims for taxes or contributions, including penalties and interest.
(b) The Substitute Teaching Services that Substitute provides to Schools are fully and entirely Substitute’s responsibility. Tagg is not responsible or liable for the actions or inactions of a School or other third party in relation to the Services provided by Substitute. Substitute understands, therefore, that by using the Tagg Platform, Substitute will be introduced to third parties in relation to whom Tagg has not conducted any background or reference checking and that Substitute uses the Tagg Platform at his/her own risk.
(a) It is the sole responsibility of the Substitute to maintain adequate workers’ compensation (or, if permitted by law, occupational accident insurance), unemployment, liability, and other forms of insurance. Furthermore, if permitted by applicable law, you may choose not to insure yourself against industrial injuries at all, but do so at your own risk.
14. OTHER BUSINESS ACTIVITIES PERMITTED
(a) As an independent contractor, Substitute may be engaged or employed in any other business, trade, profession, or other activity, including providing Substitute Teaching Services to customers booked through means other than the Tagg Platform, including other web-based portals. However, Substitute shall not affirmatively solicit Schools originally referred through the Tagg Platform to book Jobs through any means other than the Tagg Platform.
(a) Substitute may not assign this Agreement, absent written authorization by Tagg. Tagg may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns.
16. DISPUTE RESOLUTION; GOVERNING LAW
16.1 Informal Negotiations.
(a) To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement or otherwise arising from the relationship between Substitute and Tagg, Substitute and Tagg agree to first attempt to negotiate any dispute informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Substitute’s address for such notices is the address provided by Substitute to Tagg. Tagg’s address for such notices is Tagg Education, LLC, 5665 Vessey Road, Colorado Springs, CO. 80908.
16.2 Mutual Arbitration Provision.
(a) Mandatory and Exclusive Arbitration. Tagg and Substitute mutually agree to resolve any disputes between them exclusively through final and binding arbitration instead of filing a lawsuit in court. This Mutual Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply, including, but not limited, to any and all claims arising out of or relating to this Agreement, the Substitute’s classification as an independent contractor, Substitute’s provision of Services under this Agreement, the payments received by Substitute for providing Services, Substitute’s registration to use the Tagg Platform, the formation and/or termination of this Agreement, and all other aspects of the Substitute’s relationship with Tagg, past or present, whether arising under federal, state or local statutory and/or common law.
Only an arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, and/or formation of this Mutual Arbitration Provision.
However, as stated in Section 16.2(d) below, the preceding clause of this paragraph shall not apply to the Class Action Waiver and Representative Action Waiver.
BY AGREEING TO ARBITRATE ALL SUCH DISPUTES, THE PARTIES TO THIS AGREEMENT AGREE THAT ALL SUCH DISPUTES WILL BE RESOLVED THROUGH BINDING ARBITRATION BEFORE AN ARBITRATOR AND NOT BY WAY OF A COURT OR JURY TRIAL.
If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by Substitute must be delivered to: Tagg Education, LLC. Attn: Legal Department, 5665 Vessey Road, Colorado Springs CO, 80908.
(b) CLASS ACTION WAIVER-PLEASE READ. Tagg and Substitute 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 a class action and/or collective action, and an arbitrator shall not have any authority to hear or arbitrate any class and/or collective action (“Class Action Waiver”). (c) REPRESENTATIVE ACTION WAIVER-PLEASE READ. Tagg and Substitute 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 a private attorney general act representative action, and an arbitrator shall not have any authority to arbitrate a private attorney general action (“Representative Action Waiver”). (d) Notwithstanding any other clause contained in this Agreement, this Mutual Arbitration Provision, or the AAA Rules, as defined below, any claim that all or part of this Class Action Waiver and/or Representative Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. As stated above, all other disputes regarding interpretation, applicability, enforceability, or formation of this Mutual Arbitration Provision shall be determined exclusively by an arbitrator. (e) Substitute agrees and acknowledges that entering into this Mutual Arbitration Provision does not change Substitute’s status as an independent contractor in fact and in law, that Substitute is not an employee of Tagg or any School and that any disputes in this regard shall be subject to arbitration as provided in this Mutual Arbitration Provision. (f) Unless Tagg and Substitute otherwise mutually agree, the arbitration will be conducted in the county where Substitute resides. If Substitute’s claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents Tagg and Substitute submit to the arbitrator, unless Substitute requests a hearing or the arbitrator determines that a hearing is necessary. Unless Substitute waives the right to a hearing in writing, a hearing shall always be conducted if Substitute’s claim exceeds $10,000. (g) The Arbitrator shall be selected by mutual agreement of Tagg and Substitute. Unless Tagg and Substitute mutually agree otherwise, the Arbitrator shall 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, and who has experience in the underlying subject matter. If the parties cannot agree on the Arbitrator, the selection of the Arbitrator shall be governed by the American Arbitration Association Commercial Arbitration Rules (AAA Rules). (h) Regardless of whether the Arbitrator is affiliated with the American Arbitration Association, the parties agree that any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (AAA Rules), except as follows (unless and to the extent otherwise mutually agreed by Tagg and Substitute): (1) The arbitration shall be heard by one Arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute; (2) Tagg shall pay the Arbitrator’s fees and costs unless the relief sought in the Substitute’s demand for arbitration was found to be frivolous or brought for an improper purpose (as determined by the standards set forth in Federal Rule of Civil Procedure 11(b)), unless applicable law requires otherwise; (3) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes; (4) Except as provided in the Class Action Waiver and Representative Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable; (5) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions; (6) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law; (7) Either Tagg or Substitute may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 12.2 may be rendered ineffectual. (i) Regardless of any other terms of this this Agreement or Mutual Arbitration Provision, nothing prevents Substitute from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commissions, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Mutual Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this arbitration provision. This Mutual Arbitration Provision also does not prevent federal administrative agencies from adjudicating claims and awarding remedies based on the claims addressed in this Section 12.2, even if the claims would otherwise be covered by this Mutual Arbitration Provision. Nothing in this Mutual 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. Tagg will not retaliate against Substitute for filing a claim with an administrative agency or for exercising rights (individually or in concert with others) under Section 7 of the National Labor Relations Act. (j) The AAA Rules may be found at www.adr.org or by searching for AAA Commercial Arbitration Rules using a service such as www.Google.com or www.Bing.com. (k) Substitute’s Right to Opt Out of Arbitration. Arbitration is not a mandatory condition of Substitute’s contractual relationship with Tagg, and therefore Substitute may submit a statement notifying Tagg that Substitute wishes to opt out and not be subject to this Mutual Arbitration Provision. In order to opt out, Substitute must notify Tagg of Substitute’s intention to opt out by submitting to Tagg at Tagg Education, LLC. Attn: Legal Department, 5665 Vessey Road, Colorado Springs CO, 80908, a signed and dated written notice stating that Substitute is opting out of this Mutual Arbitration Provision. Substitute also may opt out by sending an email to support@Taggeducation.com stating Substitute’s intention to opt out. In order to be effective, Substitute’s opt out notice must be provided within 30 days of the date this Agreement is electronically signed by Substitute. If Substitute opts out as provided in this paragraph, Substitute will not be subject to any adverse action from Tagg as a consequence of that decision and he/she may pursue available legal remedies without regard to this Mutual Arbitration Provision. If Substitute does not opt out within 30 days of the effective date of this Agreement, Substitute shall be deemed to have voluntarily agreed to this Mutual Arbitration Provision. (l) Substitute acknowledges and agrees that if Tagg modifies any provision of this Agreement other than any term of this Section 12.2, Substitute will not have a renewed opportunity to opt out of arbitration. Substitute further acknowledges and agrees that if Tagg modifies the addresses for submission of opt-out notices identified in this Section 12.2, Substitute will not have a renewed opportunity to opt of arbitration. If, however, Tagg modifies any provision of this Section 12.2 other than the addresses for submission of opt-out notices, Substitute will have a renewed opportunity to opt out of arbitration. In such circumstances, the 30-day opt out period will begin to run upon your electronically signing the modified Agreement. Changes to any information referenced at hyperlinks from the Agreement or Arbitration Provision shall not create a renewed opportunity to opt-out. (m) Right To Consult With A Lawyer: Substitute has the right to consult with private counsel of Substitute’s choice for independent legal advice with respect to any aspect of this Agreement or Mutual Arbitration Provision, or any claim that may be subject to this Mutual Arbitration Provision. (n) In the event any portion of this Mutual Arbitration Provision is deemed unenforceable, the remainder of this Mutual Arbitration Provision will be enforceable. 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 and/or Representative Action Waiver is invalid or unenforceable, the class, collective, or representative general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver and Representative Action Waiver that is valid and enforceable shall be enforced in arbitration.
16.3 Governing Law.
(a) Except for the Mutual Arbitration Provision set forth in Section 12.2, which is governed by the Federal Arbitration Act, this Agreement shall be governed and interpreted pursuant to the laws of the State of Colorado, notwithstanding any principles of conflicts of law.
(a) Substitute hereby expressly acknowledges and agrees that, by using or receiving access to the Tagg Platform, Substitute and Tagg are bound by the then-current version of this Agreement, including any supplements to this Agreement or documents incorporated herein, including any Schedules or Attachments. Substitute shall be bound by modifications to this Agreement only upon Substitute’s electronically signing any modifications or supplements.
18. DEFEND TRADE SECRETS ACT OF 2016.
(a) Substitute acknowledges receipt of the following notice under 18 U.S.C § 1833(b)(1): “An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.”
(a) All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section) or in an electronic mail communication to the appropriate party. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid), or by electronic mail. This Agreement, together with any other documents incorporated herein by reference, and related exhibits and schedules, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto, and any of the terms thereof may be waived, only by a written document signed by each party to this Agreement or, in the case of waiver, by the party or parties waiving compliance. Except as expressly provided otherwise in this Agreement, if any term or provision of this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. This Agreement may be executed in multiple counterparts, including by facsimile or other electronic signature, each of which shall be deemed an original and all of which together shall constitute one instrument. Headings appear solely for convenience of reference. Such headings are not part of this Agreement and shall not be used to construe it. (b) This Agreement may not be amended, by implication or otherwise, by any marketing material contained on Tagg’s website or the Tagg Platform. Nothing contained in this provision or this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims. (c) Substitute acknowledges that he/she has read and understands this Agreement and also acknowledges that he/she had a reasonable and adequate opportunity to seek and receive independent legal advice, at the Substitute’s own expense, prior to signing this Agreement.