This Guide Agreement (“Agreement”) is entered into by amongst TAVVY FZ LLC incorporated in United Arab Emirates (hereinafter referred to as “Tavvy”, which expression shall unless it be repugnant to the context or meaning thereof, be deemed to mean and include its affiliates, administrators, liquidators, successors and permitted assigns) and the Guide.
Tavvy is engaged in the business of providing online educational services and university admissions consultancy services, including but not limited to providing guidance and mentorship services to the Students.
The Guide is providing to the Students generic information of certain educational institutions he/she has been a part of and personally experienced.
The Parties are desirous to enter into this Guide Agreement in consideration of the mutual promises, covenants, undertakings and agreements between the Parties hereto, and on the terms and conditions contained herein.
The Guide hereby unconditionally agrees that unless the context otherwise requires, the definitions listed below when used in this Agreement shall have the meanings attached to them and these terms shall be interpreted accordingly. The definitions listed below as used in this Agreement may be identified by the capitalization of the first letter of each principal word thereof. In addition to the terms defined below, certain other capitalized terms are defined elsewhere in this Agreement and whenever such terms are used in this Agreement they shall have their respective defined meanings, unless the context, expressly or by necessary implication, require otherwise:
“Applicable Law” includes all applicable statutes, enactments, acts of state legislatures or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders of any Government, statutory authority, tribunal, board, court or any other relevant jurisdiction.
“Confidential Information” means any and all of the Company business plans, mechanisms, business related functions, activities and services, customer lists, knowledge of customer needs and preferences, trade secrets, business strategies, marketing strategies, methods of operation, tax records, markets, other valuable information, confidential information and trade related information relating to the business and activities of the Company and useful or necessary for the success of the Company’s business and activities. Confidential Information shall also include financial information, such as the Company’s earnings, assets, debts, prices, pricing structure, estimates, volumes of customers, transaction details such as names or address, terms of services, contracts of particular transactions, or related information about the Company employees, customers, potential customers; marketing information, such as details about ongoing or proposed marketing programs or agreements by or on behalf of the Company, projections, sales forecasts or results of marketing efforts or information about impending transactions; personnel information; and customer information, such as any compilation of past, existing or prospective customers, customers’ proposals or agreements between customers and status of customers’ accounts or credit, or related information about actual or prospective customers
“Liquidation Event” shall mean (i) voluntary or involuntary liquidation, dissolution or winding up of Tavvy, a merger, acquisition, change of control, consolidation, or other transaction or series of transactions in which the Shareholders prior to such transaction will not: (a) retain a majority of the voting power of the surviving entity, or (b) control the board of directors of the surviving entity, or (ii) a sale, lease, license or other transfer of all or substantially all the Tavvy’s assets or (iii) ceasing of operations of Tavvy within a particular country and/or geographic location(s).
“Student” shall mean the Student of the online guidance programme provided by Tavvy, as a means of career counselling, including but not limited to the activities envisaged under this Agreement.
“Indemnified Liabilities” shall have the meaning ascribed to it in Clause 8.
“Indemnified Parties” shall have the meaning ascribed to it in Clause 8.
“Services” shall mean any and all services, whether through online and offline medium provided either directly and/or indirectly by Tavvy.
“Session” shall mean the session between the Student and the Guide.
“Guide Consideration” shall have the meaning ascribed to it in Clause 4.
In this Agreement, except to the extent that the context otherwise requires:
References to a statute, ordinance or other Law shall be deemed to include any references to a statute, ordinance or other Law as amended, supplemented or replaced from time to time in accordance with its terms and (where applicable) subject to compliance with the requirements set forth therein and shall include regulations and other instruments under such statue, ordinance or other Law;
References to Clauses, Annexures and Schedules are reference to clauses in and annexures and schedules to this Agreement unless the context requires otherwise and the Annexures and Schedules to this Agreement shall always be deemed to form part of this Agreement;
The headings are inserted for convenience only and shall not affect the construction of this Agreement;
The Masculine includes the Feminine Gender e.g. a ‘he’ should also be read as ‘she’, and vice versa.
DUTIES OF GUIDE
The Guide shall provide the Student information in relation to his relevant and specific educational institution(s) and degrees/subjects along with any other necessary information (such as town of the university etc), in consonance with acceptable industry practices. The insights provided has to be factual and based on the Guide’s own experiences only.
The Guide acknowledges, affirms, agrees and understands that the services provided to the Student may vary on a case to case basis on an individual basis based on the respective queries of the student.
The Guide has the specific knowledge of the educational institution(s) and degree course/subjects.
Notwithstanding anything contained herein, the Guide shall adhere to any and all regulatory compliances and specifications as may be required under Applicable Law, including but not limited to disclosure certificate from the Disclosure and Barring Service (England and Wales), Protecting Vulnerable Groups (PVG) scheme (Scotland), Children’s Online Privacy Protection Rule (United States of America) and/or AccessNI.
The Guide affirms, acknowledges, agrees and understands that any content shared by him to the Student shall be considered non-confidential, to the extent permitted by law.
The Guide acknowledges, agrees, affirms and understands that directly and/or indirectly, for sharing of nudity, pornographic or adult material, sexually explicit images or descriptions involving sexual behaviour, or other content deemed offensive by Tavvy according to community standards and/or Applicable Law, is strictly prohibited.
The Guide acknowledges, affirms, agrees and understands that he shall have no claim or other recourse (and/or otherwise disclaims) against Tavvy for infringement of any proprietary right in relation to any matter envisaged under this Agreement.
The Guide acknowledges, affirms, agrees and understands that all services envisaged under this Agreement has been provided at the Guide’s own risk.
Tavvy cannot and does not guarantee that the Sessions shall not be viewed by unauthorized persons.
The Guide shall not make any misrepresentations and/or provide false information with regards to Tavvy and/or any third party during the sessions or about their own experiences of the educational institution(s), degree course(s)/subjects that he will provide information on and per the Guide’s profile on Tavvy’s website and platform.
At the instance, a Guide is unavailable for any Session, for any reason whatsoever, he shall not entitled to the Guide Consideration in relation to such Session. In case the Session was prepaid, Tavvy shall be entitled to a full refund, along with interest. The rights of Tavvy under this Clause shall be cumulative and not in alternate with the other rights that are vested at such an instances (including but not limited to damages and indemnification).
The Guide shall only use Standard English with the Student unless otherwise instructed by Tavvy or at the request of the student based on the spoken languages listed by the Guide on Tavvy’s platform.
In case of emergency rescheduling a valid reason for such rescheduling shall be corroborated with proper documentation which shall be allowed at the discretion of Tavvy and as such if rejected the Guide shall be bound to refund such considerations allotted to him and/or (at the option of Tavvy) shall make available such Services that were denied to such Student in lieu of such rescheduling at any time which the Student may deem fit.
The Guide shall always maintain a positive attitude throughout any Session and never show signs of frustration or anger.
During any Session, the Guide shall at all times dress professionally and in an appropriate manner.
The Guide shall keep Tavvy informed of any issues or problems with a Student, as and when they develop.
The Guide shall under no circumstances discuss or share any personal information with the Student nor shall he entertain such discussions on the part of the Student.
The Guide shall bear all local taxes as he or she may be subject to in his/ her country.
The Guide shall not engage in any activity and/or conversation with the Student other than strictly for the purposes specifically laid down under these Agreement, prior to, during the continuance of, and after each and every Session.
The Guide undertakes to promptly notify Tavvy at the instance the Student engages into any activity, conversation and/or conduct which falls outside the purview of this Agreement prior to, during the continuance of, and after any Session.
The Guide specifically represents and warrants that he shall not initiate and/or continue any (personal, professional and/or otherwise) relationship with the Student in any manner whatsoever.
The Guide shall not make any disparaging statements in relation to any person and/or organisation during his interaction with the Student, whether during a Session or afterwards, including but not limited to the educational institution(s) he has been a part of and any of its professors, teachers, instructors and members in the administration and support staff. Guide must always remain professional, unbiased and only share factual information and insights based on his own experiences only. For clarification of doubt, the Guide specifically represents and warrants that all information that is provided is true and accurate.
RIGHTS OF TAVVY
Tavvy shall have the sole right to receive payments from any person in relation to the Services and any part thereof. For clarification of doubt, it is hereby stated that under no circumstances shall the Guide derive any monetary benefit, whether directly or indirectly, in the form of monies and/or otherwise, from any client of Tavvy.
Tavvy reserves the right to enquire, cross check and/or otherwise validate the authenticity of the Educational Qualification in any manner that Tavvy deems fit (including requesting the Guide to have the educational institution(s) send an attested degree certificate and other documents directly to Tavvy in a sealed envelope. Tavvy reserves the right to use technology to authenticate the genuineness of the degree certificates and any other documents provided by the Guide on Tavvy platform. Tavvy reserves the right to freeze or delete the Guide profile if the documents are not provided within a timeframe acceptable to Tavvy.
Tavvy reserves the right to enter into independent Guide agreements with third parties, in relation to the same subject matter as envisaged under this Agreement. For avoidance of doubt, it is hereby clarified that this Agreement does not give the Guide any exclusive rights in relation to activities envisaged herein.
Subject to Applicable Law, Tavvy reserves the right to use any and all information that has been provided by the Guide, whether in non-aggregated form or otherwise, for any marketing and/or promotional purposes (including videos, photos etc).
Nothing in this Agreement shall restrict Tavvy from expanding to other commercial markets in any manner whatsoever, including but not limited to in collaboration with other third party partners and/or guides.
Notwithstanding anything contained herein, Tavvy shall have a unilateral right to terminate this Agreement.
Subject to Applicable Law, Tavvy reserves the right to ask for more information from the Guide which is directly connected to the Services.
Tavvy reserves its right to monitor and/or record the use of all or any part of any Session.
On an ongoing basis, Tavvy will create pricing structures for Guides in line with market practice and geographical locations. This could include a fixed fee and/or a commission structure (“Guide Consideration”). The terms of the payment structure envisaged herein shall be read in consonance with the structure delineated in the Tavvy’s website. For clarification of doubt, at times of the conflict, the terms of this Agreement shall supersede the terms laid down on Tavvy’s website. Tavvy shall be entitled to deduct a commission of amounts or pay a fixed fee based on the pricing structure approved at that period of time.
At the instance of any promotional discount provided by Tavvy to any and all End Customer’s upto the extent of 25% of the Guide Consideration, the Guide specifically agrees to such reduction to his remuneration and specifically disclaims any and all rights pursuant thereto under any contract, applicable law and/or equity.
Notwithstanding anything contained herein, the Guide understands, agrees, affirms and acknowledges that the Guide Remuneration shall be the full and complete remuneration for any and all services envisaged under this Agreement.
Tavvy reserves the right to amend the payment amount or structure in any transaction that falls within the purview of this Agreement from time to time for any reason whatsoever, subject to due notification of such amendment to the Guide (either via electronic means or a broadcast on Tavvy’s website) and the Guide specifically disclaims any and all rights that vest upon him under any contract, law or equity in this regard
The Effective Date of this Agreement shall be the date on which the Guide accepts these terms on Tavvy platform in accordance with the process of registration and approval of the Guide by Tavvy.
DECLARATIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Party hereby warrants that he has the legal right, power and authority to enter into, deliver and perform this Agreement and any other documents executed by him in connection with or pursuant thereto.
The Guide specifically covenants that he shall keep confidential all information of the Student and shall contact such other parties in relation to the education of the Student only if given written permission by the Student to do so.
Notwithstanding anything contained herein, the Guide does not have the right to assign any of his/her duties or obligations under this Agreement.
The Guide undertakes to maintain a healthy and professional working relationship with the Student.
The Guide shall comply with all applicable laws in the course of performing its obligations under this Agreement.
The Guide agrees, affirms, acknowledges and understands that he is in no way covered by either the Student or Tavvy in any matter(s) of insurance and will take out, should he deem appropriate, his own insurance policy in respect of any personal and/or third party claims.
The Guide warrants that all information given to the Student (via Tavvy or otherwise) whether prior to, during the provision of the services envisaged under this Agreement, as well as post the services have been tendered are true and accurate in all respects. For clarification of doubt, the information envisaged herein shall include any and all information that the Guide provides to Tavvy on an ongoing basis.
The Guide represents that he/she has no criminal antecedents or convictions and/ or any criminal action is pending against him/her Tavvy reserves the right to request a criminal background check at the cost of the Guide.
The Guide specifically represents and warrants that he is proficient in handling each and every aspect of technology which is required to carry out any and all functions under this Agreement.
The Guide specifically represents and warrants he has access to a stable internet connection and adequate infrastructure such as computer, microphone, etc. necessary for due completion of any and all of his obligations under this Agreement. Refer to Annexure A for minimum technical requirements to become a Tavvy Guide.
The Guide shall only work in quiet, ambient surroundings amenable to a healthy conversation while taking any Session.
EVENTS OF DEFAULT
Tavvy shall, pursuant to Clause 11.1, have the right to terminate the Agreement with the Guide in case of the following events (hereinafter referred to as “Events of Default”):
Any breach of the duties of the Guide under Clause 2 of this Agreement.
Violation of any of the rights of Tavvy under Clause 3 of this Agreement.
Breach of any covenants, declarations, representations and/or warranties of the Guide under this Agreement (including but not limited to those specifically mentioned in Clause 6).
Breach of any of the provisions of Clause 9 of this Agreement.
Breach of any of the provisions of Clause 10 of this Agreement.
Breach of any of the provisions of Clause 14 of this Agreement.
The Guide shall defend, protect, indemnify and hold harmless Tavvy and its directors, employees, agents, successors, and assigns (“Indemnified Parties”) from and against any and all claims in connection therewith (collectively, the “Indemnified Liabilities”), incurred by the Indemnified Parties as a result of, arising out of or relating to:
Any misrepresentation by the Guide to the Indemnified Parties.
Any misrepresentation of the Guide to any Third Party, including but not limited to Students, with respect to the Indemnified Parties.
An Event of Default.
All taxes for which the Guide may be liable.
The breach of any obligations by the Guide of this Agreement.
Tavvy shall have the exclusive right to make use of all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other rights of any sort throughout the world) relating to any and all inventions (whether or not patentable), works of authorship, mask works, designations, designs, know-how, ideas and information which are subject matter of Services (collectively referred to as “Intellectual Properties”).
The Guide will hold in confidence and not disclose or, except in performing its duties under this Agreement, use any Intellectual Properties.
Upon termination and as otherwise requested by Tavvy, the Guide will promptly return to Tavvy all items and copies containing or embodying Intellectual Properties, if any.
Notwithstanding anything contained in this Agreement, Intellectual Properties include all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like.
Notwithstanding anything contained herein, in relation to the Content, the Guide extends a royalty free, irrevocable, exclusive and freely transferable license to perpetuity to make use of the content made available by the Guide (as well as derivative works and adaptation based on it) in any manner Tavvy deems fit. For clarification of doubt, the applicability of this Clause shall survive the termination of this Agreement.
RESTRICTIVE COVENANTS OF THE GUIDE
The Guide shall not assist any other person or organization in competing or in preparing to compete with any business or demonstrably anticipated business of Tavvy.
During the Term of this Agreement the Guide shall not, either directly or indirectly solicit or entice away or endeavour to assist any other Third Party in an endeavour to solicit or to entice away from Tavvy any employee, erstwhile customer, prospective customer and/or customer.
During the Term of this Agreement, the Guide agrees to take no action which is intended, or would reasonably be expected, to harm Tavvyor its or their reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity to Tavvy.
In case of an Event of Default, Tavvy may terminate this Agreement upon five (5) calendar days’ written notice unless the breach is cured within the notice period. In instances of a material breach of this Agreement such as but not limited to wilful default, fraudulent impersonation of Guide or fraudulent profile or provision, provisioning of fraudulent documents or, misbehaviour with Tavvy’s clients, end user, etc., Tavvy reserves the right to immediately terminate the Guide’s agreement and delete the profile from Tavvy Platform.
Tavvy also may terminate this Agreement at any time, with or without cause, upon five (5) days’ notice.
Notwithstanding anything contained in this Agreement, the rights and obligations under Clauses 2, 3, 4, 6, 7, 8, 9, 12, 13 and 14 (along with any ancillary clauses necessary for their due enforcement and implementation) shall survive the termination of this Agreement.
GOVERNING LAW AND ARBITRATION
This Agreement and its performance shall be governed by and construed in all respects in accordance with the Laws of England and Wales.
Subject to Clause 12.3 below, this Agreement shall be subject to the jurisdiction of the courts in Dubai.
Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to these Agreement, including those relating to its validity, its construction or its enforceability (any “Dispute”) shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules' Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by three (3) arbitrators. Tavvy shall appoint one (1) arbitrator, the Guide shall appoint one (1) arbitrator and the two arbitrators can jointly appoint the third arbitrator. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
The Vienna Convention on the International Sale of Goods of 1980 (CISG) shall not apply.
The seat as well as the venue of the arbitration at all times shall be Dubai.
All proceedings, including issuance of an arbitration award, in any such arbitration, shall be conducted in English.
The arbitration award shall be final and binding on the Parties, and may be enforced by any court of competent jurisdiction.
The Parties agree to bear their own costs of arbitration until such time that the arbitral tribunal does not pass an award deciding on the costs. The arbitrators may, (but shall not be required to), award to a Party that substantially prevails on merits, its costs and reasonable expenses (including reasonable fees of its counsel).
When any dispute is under arbitration, the Parties shall continue to exercise their remaining respective rights and fulfil their remaining respective obligations under this Agreement.
Notwithstanding anything contained herein, the Guide shall not be entitled to assign his rights and obligations under the Agreement to a third party under this Agreement.
Notwithstanding anything contained herein, Tavvy reserves the right to assign and all of its rights, duties, obligations and liabilities under this Agreement. For clarification of doubt, it is hereby stated that nothing in this Clause and/or this Agreement shall provide the Guide with any right, be it in the form of an affirmative vote or otherwise, at the instance of a Liquidation Event. The Parties shall execute such documents as may be necessary or desirable to give effect to such assignment.
The Guide shall maintain the utmost confidentiality, regarding the Confidential Information at all times.
The Guide shall not make any announcements to the public or to any third party regarding the arrangements contemplated by this Agreement without the prior written consent of Tavvy.
Nothing in this Clause 14 shall be applicable in relation to the Guide disclosing his association with Tavvy on his online social media profiles.
Any provision in this Agreement, which is or may become prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in the same or any other jurisdiction. Without prejudice to the foregoing, the Parties will immediately negotiate in good faith to replace such provision with a proviso, which is not prohibited or unenforceable and has, as far as possible, the same legal and commercial effect as that which it replaces.
AMENDMENTS AND WAIVERS
Any provision of this Agreement may be amended or waived if, and only if such amendment or waiver is in writing and signed, in the case of an amendment by each of the Parties, or in the case of a waiver, by the Party against whom the waiver is to be effective. No waiver by any Party of any term or condition of this Agreement, in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. All remedies, either under this Agreement or by Law or otherwise afforded, will be cumulative and not alternative.
The Parties are independent contracting parties and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency or joint venture, or employer-employee relationship.
This Agreement contains the entire agreement of the Parties hereto with respect to the transactions envisaged under this Agreement and the inter-se rights and obligations of the Parties, superseding and replacing all negotiations, prior agreements, discussions, memoranda or heads of agreements, made prior to the date hereof amongst the Parties.
ANNEXURE A: Minimum Technical Requirements to become a Guide on Tavvy
Computer or Laptop
Webcam – good quality either external or in-built
Speakers - good quality either external or in-built
Microphone - good quality either external or in-built
Head-set – good quality with background noise cancellation
Internet Connectivity – high speed internet to conduct online live guidance sessions