TERMS OF ENGAGEMENT BETWEEN TALKENGO LTD AND INDEPENDENT CONTRACTOR - CONVERSATION PARTNER
Effective Date: 1 August 2020
THE AGREEMENT: This Service Agreement (hereinafter, "Agreement") is made by and between TalkEngO, hereinafter referred to as "Service Provider," and Independent Contractor AKA Conversation Partner (CP), further defined below. All parts and sub-parts of this Agreement are specifically incorporated by reference here. This Agreement shall govern the use of all pages and screens in and on the Service provided (all collectively referred to as "Services provided") and any services provided by the Service Provider through this medium ("Services") and/or on the Service Provider's website ("Website").
1.1 The parties referred to in this Agreement shall be defined as follows:
1.1.1 Service Provider, us, we: Service Provider, as the creator, operator, and publisher of the services, is responsible for providing the services publicly. Service Provider, us, we, our, ours, and other first-person pronouns will refer to the Service Provider, as well as, if applicable, all freelancers and affiliates of the Service Provider.
1.1.2 You, the user, the Independent Contractor (Conversation Partner): You, as the Independent Contractor and user of the Website, will be referred to throughout this Agreement with second-person pronouns such as you, your, yours, he, she, or as user or participant.
1.1.3 Parties: Collectively, the parties to this Agreement (Service Provider and You) will be referred to as Parties.
1.2 Services details are as follows:
1.2.1 Service Name: Promoting communication and listening proficiencies in the English Language in compliance with the Common European Framework of Reference (CEFR)
1.2.2 Service Description: Promoting English Language capabilities (Speaking & Listening) through meaningful conversation at different levels and in different fields (General, Business, Academics and Examinations)
1.2.3 Total Service Fees ("Fees"): Fees stipulated by the Independent Contractor (CP)
1.2.4 Service URL: www.talkengo.com
1.2.5 Service End Date/Time - To be determined by Conversation Partner (CP) and Client (Language Learner) LL
1.2.6 Independent Contractor - Subject to the terms and conditions of this Agreement, the Company hereby engages the Contractor as an independent contractor to perform the services set forth herein, and the Contractor hereby accepts such engagement.
1.2.7 Duties and Term - The Independent Contractor’s duties and term of engagement and provisions for payment thereof shall be as set out by the Contractor on the Service Providers website which may be amended in writing from time to time, or supplemented with subsequent estimates for services to be rendered by the Independent Contractor and agreed to by the Client.
Independent Contractors’ duties are set out in 1.2.2 above.
1.2.8 Assessment clause - The Independent Contractor hereby undertakes to carry out an assessment of the Language Learner’s performance and capabilities under the CEFR guidelines at the end of each conversation session.
1.2.9 Written report - Independent Contractor agrees to conduct a CEFR assessment of the Language Learner’s performance based on the CEFR framework. Failure to adhere to the said requisite, will render the Conversation Session as null and void.
1.2.10 RELATIONSHIP OF THE PARTIES - Independent Contractor enters into this Agreement as and shall continue to be, an Independent contractor. All Services shall be performed only by Independent Contractor: Under no circumstances shall Independent Contractor, look to Company as his/her employer, or as a partner, agent, or principal. Independent Contractor shall not be entitled to any benefits accorded to Company's employees, including without limitation worker's compensation, disability insurance, vacation or sick pay. Independent Contractor shall be solely responsible for providing, at Independent Contractor's expense, and in Independent Contractor's name for any and all taxes, Social Security contributions or payments, unemployment benefit or taxes, and other payroll taxes applicable as well as licenses and permits usual or necessary for conducting the Services.
By purchasing and participating in the Conversation Session(s), you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please cease your participation in the Conversation Session(s) immediately. TalkEngO (Service Provider) only agrees to provide the Service to you if you assent to this Agreement.
You must be 18 years or over to participate in the Conversation Sessions
We may provide you with certain information as a result of your accessing the services through the Website. Such information may include but is not limited to, documentation, data, or information developed by us and other materials that may assist in your participation in the Conversation Session ("Materials"). Subject to this Agreement, we grant you a non-exclusive, limited, non-transferable, and revocable license to use the Materials solely in connection with your participation in the Conversation Session(s) and your use of the Website. The Materials may not be used for any other purpose, and this license terminates upon your completion of the Conversation Session(s), your cessation of use of the Service or the Website, or at the termination of this Agreement.
4.1 You may not be able to begin until the specified Start Date/time. You must complete the session by the specified End Date/time. The Conversation material and any of its accompanying materials may not be shared with any party. If we suspect the Conversation session(s) or Materials are being shared and/or that you have shared your log-in information with any party, we reserve the right to immediately terminate your access to this Website, in our sole and exclusive discretion.
4.2 You hereby acknowledge and agree:
4.2.1 You are solely and exclusively responsible for the choices that you make with regard to this Service, the Materials contained within it, or any significant changes to your business or life;
4.2.2 You are solely and exclusively responsible for your own mental health, physical health, business decisions, and any other actions or inaction you choose to take;
4.2.3 We are not liable for any result or non-result or any consequences which may come about due to your participation in the Conversation Session(s);
4.2.4 This Service does not constitute a therapeutic relationship or a medical one. We do not provide therapy or medical services and you are responsible for procuring these services at your own will and discretion if needed.
You agree the Materials, the Conversation Session(s), the Website, and any other Services provided by the Service Provider are the property of the Service Provider, including all copyrights, trademarks, trade secrets, patents, and other intellectual property ("Company IP"). You agree that the Company owns all rights, title, and interest in and to the Company IP and that you will not use the Company IP for any unlawful or infringing purpose. You agree not to reproduce or distribute the Company IP in any way, including electronically or via registration of any new trademarks, trade names, service marks or Uniform Resource Locators (URLs), without express written permission from the Company
Through your participation in the Conversation session and your use of the Website, you may be permitted to post materials on the Website ("User Contributions"). You hereby grant Service Provider a royalty-free, non-exclusive, worldwide license to copy, display, use, broadcast, transmit and make derivative works of User Contributions you post. The Service Provider claims no further proprietary rights in your User Contributions. You also agree to comply with the "Acceptable Use" provision of this Agreement for all User Contributions that you post, including and especially to not violate the intellectual property rights of any third party through your User Contributions. If you feel that any of your intellectual property rights have been infringed or otherwise violated by the posting of information or media by another of our users, please contact us and let us know.
7.1 As a participant in the Conversation Session(s), you will be asked to undertake and complete the following obligations. As a participant in the Conversation Session(s), you will be asked to register with us. When you do so, you will choose a user identifier, which may be your email address or another term, as well as a password.
7.2 You may also provide personal information, including, but not limited to, your name. You are responsible for ensuring the accuracy of this information. This identifying information will enable you to participate in the Services provided.
7.3 You must not share such identifying information with any third party, and if you discover that your identifying information has been compromised, you agree to notify us immediately in writing. An email notification will suffice.
7.4 You are responsible for maintaining the safety and security of your identifying information as well as keeping us apprised of any changes to your identifying information. Providing false or inaccurate information, or using the Service or the Website to further fraud or unlawful activity is grounds for immediate termination of this Agreement.
8.1 Unless otherwise agreed, all payments to be made pursuant to this Agreement are denominated in and shall be made in pounds (Sterling)
8.2 All Payments will be made via Contracted Gateway Payment Providers.
8.3 We reserve the right to change our Service Provider and will use our best endeavors to notify you forthwith.
8.4 You will set your own fees or the standard learning session of 30 minutes and are entitled to charge the fee at any time you wish by logging in and visiting the Account Status page in TalkEngO’s Personal File- a hyperlink to pricing guide and commissioning guide.
8.5 It is a prerequisite you create an account to receive your earnings from each Conversation Session undertaken. It is imperative you create an account prior to the commencement of the Conversation Sessions with a Gateway Payment Provider as stipulated by TalkEngO.
8.6 Payments are made on the first day of the following month after the deduction of Service Provider’s commission of 20%. The said commission rate will be reviewed and revised on an ad-hoc basis. The Independent Contractor will be notified of the same one month in advance.
8.7 Withdrawal – You can request a withdrawal through the Client Support Services. This will incur the administrative cost of £25 plus the Contacted Payment Gateway Providers fees and it will take 60 working days to process.
8.8 You acknowledge that:
8.8.1 Service Provider is not a bank and the Payment Account Service is a payment gateway rather than a Service Provider is not a bank and the Payment Account Service is a payment gateway rather than a banking service. Hence, Independent Contractors’ earnings will be transferred to their Payment Gateway accounts.
8.8.2 Service Provider is not acting as a trustee or fiduciary with respect to TalkEngO’s funds but is acting only as an agent and custodian.
8.8.3 SERVICE PROVIDER IS NOT A BANK, AND AMOUNTS TRANSFERRED THROUGH OR STORED IN THE PAYMENT SERVICE ARE NOT INSURED DEPOSITS.
8.8.4 Interest - You agree that you will not receive interest on earnings on the money deposited in the wallet.
8.8.5 Hold on Account Funds – Service Provider reserves the right, at its sole discretion, to place a hold on funds if Service Provider suspects monies were used in fraud or criminal activities. The service Provider will release a hold as soon as practical.
8.8.6 Service Provider reserves the right to seek reimbursement from any CPs and CPs will reimburse TalkEngO if TalkEngO discovers erroneous or duplicate transactions for the amount of such transaction from such CPs
8.8.7 TalkEngO may obtain such reimbursement by deducting from future payments owed to such CPS, by reversing any credits to such CPs bank account, or by seeking reimbursement from such CPs by any other lawful means.
8.8.8 If you have any questions, suggestions or reports of problems regarding the Payment Service, please contact Customer Service. hyperlink to Service Provider’s Support Services
8.8.9 CP’s Wallet. CP’s will only be permitted to request to withdraw a partial payment if they are willing to incur the costs of the same as set out in 8.8.7
You agree not to use the Service or the Website for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Service or the Website in any way that could damage the Service, Website, Services, or general business of the Service Provider. You further agree not to use the Service or the Website:
iii) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
Vi) To publish or distribute any material that incites violence, hate, or discrimination towards any group;
vii) To unlawfully gather information about others.
10.1 The Independent Contractor acknowledges that during the engagement he or she will have access to and become acquainted with various trade secrets, processes, information, records, and specifications owned or licensed by the Service Provider and/or used by the Service Provider in connection with the operation of its business including, without limitation, the Service Provider’s business and processes, methods, client data, and procedures.
10.2 The Independent Contractor agrees that he or she will not disclose any of the aforesaid, directly or indirectly, or use any of them in any manner, either during the term of this Agreement or at any time thereafter, except as required in the course of this engagement with the Service Provider. All files, records, documents, blueprints, specifications, information, notes, media lists, and similar items relating to the business of the Service Provider, whether prepared by the Independent Contractor or otherwise coming into his or her possession, shall remain the exclusive property of the Service Provider.
10.3 The Independent Contractor shall not retain any copies of the foregoing without the Company’s prior written permission. Upon the expiration or earlier termination of this Agreement, or whenever requested by the Service Provider, the Independent Contractor shall immediately deliver to the Service Provider all such files, records, documents, specifications, information, and other items in his or her possession or under his or her control.
10.4 The Independent Contractor further agrees that he or she will not disclose his or her retention as an independent contractor or the terms of this Agreement to any person without the prior written consent of the Service Provider and shall at all times preserve the confidential nature of his or her relationship to the Service Provider and of the services hereunder.
We engage in affiliate marketing whereby we receive a commission on or percentage of the sale of goods or services on or through the Service and/or Website. We may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the UK Code of Non-broadcast on Marketing, Advertising, and Direct & Promotional Marketing (“CAPCode”), as well as any other legal requirements which may apply.
The Service and Website are provided for informational purposes only. You acknowledge and agree that any information posted on the Website is not intended to be legal advice, medical advice, or financial advice, and no fiduciary relationship has been created between you and us. You further agree that your participation in the Service is at your own risk. We do not assume responsibility or liability for any advice or other information given in the Service, or on the Website.
We are not liable for any damages that may occur to you as a result of your participation in the Conversation Sessions or your use of the Website, to the fullest extent permitted by law, as noted above.
You agree not to undertake any of the following actions:
14.1 Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on the Service or Website;
14.2 Violate the security of the Service or Website through any unauthorized access, circumvention of encryption or other security tools, data mining, or interference to any host, user or network.
We do not assume or accept responsibility for the security of your account or content. You agree that your participation in the Service or use of the Website is at your own risk.
You agree to defend and indemnify the Service Provider and any of our affiliates (if applicable) and hold us harmless against any and all legal claims and demands, including reasonable legal fees, which may arise from or relate to your participation in the Services provided, your use or misuse of the Website, your breach of this Agreement, or your conduct or actions. You agree that we shall be able to select our own legal counsel and may participate in our own defence, if there are sufficient grounds for us to do.
You are strictly prohibited from using the Services provided for illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails.
We may, from time to time and at any time without notice to you, modify this Agreement. You agree that we have the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
This Agreement constitutes the entire understanding between the Parties with respect to the Service. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral.
We may need to interrupt your access to the Service to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access to the Service and/or Website may be affected by unanticipated or unscheduled downtime, for any reason, but that we shall have no liability for any damage or loss caused as a result of such downtime.
We may terminate this Agreement with you at any time for any reason, with or without cause. We specifically reserve the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of us or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material. You may also terminate this Agreement at any time by contacting us and requesting termination. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect. Please be advised that terminating this Agreement does not entitle you to a refund on any monies already transferred to us.
You agree that your participation in the Service and your use of the Website is at your sole and exclusive risk and that any Services provided by us are on an "As Is" basis. We hereby expressly disclaim any and all express or implied warranties of any kind, including, but not limited to the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. We make no warranties that the Service or Website will meet your needs or that the Service or Website will be uninterrupted, error free, or secure. We also make no warranties as to the reliability or accuracy of any information in the Service or on the Website. You agree that any damage that may occur to you, through your computer system, or as a result of loss of your data from your participation in the Service or your use of the Website is your sole responsibility and that we are not liable for any such damage or loss.
23.1 This Agreement shall be effective from Conversation sessions arranged between Contractor and Language Learner or until completion of the Services, as applicable, unless sooner terminated by either party in accordance with the terms and conditions of this Agreement (“Term”). This Agreement is terminable by either party at any time, with or without cause, effective upon notice to the other party. If the Service Provider exercises its right to terminate the Agreement, any obligation it may otherwise have under this Agreement shall cease immediately. If an Independent Contractor exercises its right to terminate the Agreement, any obligation it may otherwise have under this Agreement shall cease immediately. Additionally, this Agreement shall automatically terminate upon the Contractor’s death.
23.2 Continuing Obligations of Independent Contractor. The provisions of Sections 1.1 (as relates to creation and ownership of copyright), 1.1, 2, 11, 21, and 23 shall survive expiration or termination of this Agreement for any reason.
23.3 The Company may terminate this Agreement at any time by written notice to the Independent Contractor. In addition, if the Independent Contractor is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of the Company, is guilty of serious misconduct in connection with performance hereunder, or materially breaches provisions of this Agreement, the Company at any time may terminate the engagement of the Independent Contractor forthwith and without prior written notice to the Independent Contractor
The Independent Contractor will carry liability insurance (including malpractice insurance, if warranted) relative to any service that he or she performs for the Company.
25.1 LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
25.2 JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Service and your use of the Website, you agree the laws of England and Wales shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and us, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the laws of England and Wales. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non-conveniens or similar doctrine.
25.3 ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. The arbitration shall be conducted via a qualified Mediator from TalkEngO and the outcome of the arbitration is final.
25.4 ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by Service Provider, the rights and liabilities of Service Provider will bind and inure to any assignees, administrators, successors, and executors.
25.5 Independent Contractor hereby assigns and agrees to assign to Company, without royalty or any other consideration except as expressly set forth herein, all worldwide right, title, and interest Contractor may have or acquire in and to
25.5.1 all Materials;
25.5.2 all copyrights, trade secrets rights, and other intellectual property rights
25.6 SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such a condition, the remainder of this Agreement shall continue in full force.
25.7 ENTIRE AGREEMENT: This Agreement, including the Exhibits, constitutes the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties.
25.8 AGENCY: The contractor is not the Company’s agent or representative and has no authority to bind or commit Company to any agreements or other obligations.
25.9 NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or subpart of this Agreement will not constitute a waiver of any other part or sub-part.
25.9 TIME: The contractor agrees that time is of the essence in this Agreement.
25.10 HEADINGS FOR CONVENIENCE ONLY: Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
25.11 MODIFICATION OR AMENDMENT: No amendment, change, or modification of this Agreement shall be valid unless in writing signed by the parties hereto.
25.12 ENTIRE UNDERSTANDING: This document and any exhibit attached constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
25.13 UNENFORCEABILITY OF PROVISIONS: If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
25.14 NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
1st DAY OF August 2020
H Shaban - Managing Director