OTA Registration - Homework Help from BrainMass

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Online TA Service Agreement:

OTA SERVICES AGREEMENT
(Most Recently Updated May 26, 2008)

1.  Consent to OTA Agreement.  BrainMass Inc. of Newmarket, Ontario, Canada (referred to as "BM", "we," "us," or "our" herein) offers services to students (the “Student” or "Students") via an Internet web site at http://www.BrainMass.com (the "Site").  In connection with the Post-A-Problem service, the Essay Review service, and the Solution Library service (the "Services") provided by BM, Online Teaching Assistants (“OTA” or "OTAs") respond to problems submitted by the Students and provide comments on Student-prepared essays and other materials.  The product of the Services provided to the Students via BM by the OTAs is referred to herein as the "OTA Work".  By submitting your OTA registration form (the "Registration") to BM, you are agreeing to be bound by the terms and conditions of this agreement ("the Agreement").  READ THIS AGREEMENT CAREFULLY PRIOR TO SUBMITTING YOUR REGISTRATION.  See paragraph 4 for the circumstances and procedures under which this Agreement can or will be terminated.

2.  Qualifications.  In order to qualify as an OTA, you are, as of the date of Registration, working on a graduate degree at an accredited university or have at least one graduate degree from an accredited university.

3.  OTAs are Independent Contractors.  OTAs are not employees of BM.  OTAs are independent contractors, providing specific services to BM on an as-needed basis for a limited period of time.   In preparing and submitting the OTA Work, each OTA: (a) shall use his or her own computer equipment and Internet access services; (b) shall determine the time during which the OTA Work is prepared; and (c) is permitted to provide comparable works and services to others.  Each OTA is carrying on an independent business on his or her own behalf.  BM provides payments in exchange for the OTA Work and does not withhold any payments for income taxes, unemployment insurance or any other amount. Each OTA is solely responsible for payment of his or her own taxes.

4.  Term and Termination.  The term of this Agreement (the "Term") shall commence on the date the Registration is accepted by BM and shall expire on May 31 of each year, unless terminated sooner in accordance with the provisions of this Agreement. This Agreement will automatically renew for an additional Term of one (1) year as of each June 1 at 12:01 am (Eastern Standard Time), unless the OTA or BM declines renewal in writing. This Agreement will terminate immediately under the following circumstances:

a) upon notice from BM to the OTA if, in BM's sole determination, acting reasonably, the OTA has failed to comply with any material provision of this Agreement, or if BM reasonably believes that the OTA has violated any applicable law or has acted contrary to the interests of the Site, the Students, BM or any of its affiliates or associates;

b) upon notice from the OTA to BM that he or she wishes the account terminated for any reason;

c) upon determination by BM that the OTA has not submitted any responses to Students’ questions or submitted a stand-alone question and solution for the Solution Library, during any uninterrupted six (6) month period.

Upon termination of this Agreement, for any reason whatsoever, the OTA’s account shall be deleted, and, after payment by BM of any monies owing as of the date of termination for Services rendered by the OTA, no further monies or compensation shall accrue or be payable or paid to the OTA. Upon termination of this Agreement, the OTA shall continue to be bound by the following provisions of this Agreement that shall survive termination: 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, and 19.

5.  Governing Law and Jurisdiction.  The Site is controlled and operated from BM's offices in Newmarket, Ontario, Canada. OTAs may be located throughout Canada, the United States and in other jurisdictions world-wide.  This Agreement shall be governed and construed in accordance with the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein.  In the event of any dispute relating to this Agreement, the OTA expressly consents to the exclusive forum, jurisdiction, and venue of courts in the province of Ontario.

6.  OTA's Representations and Warranties.

The OTA hereby represents and warrants to BM that:

(a) The OTA has attained the age of majority in the jurisdiction in which he she resides (e.g. 19 years of age in the province of Ontario) and has the full right and authority to enter into this Agreement;

(b)  The OTA meets the Qualifications set out in this Agreement and as specified in the Registration and paragraph 2 hereof;

(c)  The OTA Work shall respond to Student's questions in connection with the Solution Service and to Student's assignments in connection with the Essay Review Service at an academic level appropriate to the Student;

(d)  The OTA Work with respect to each unique problem posted by a student must, in the majority, be the original work of the OTA, and may not be copied from any previous OTA Work created and submitted by the OTA or by another OTA. The OTA may incorporate outside materials into the OTA Work; however this material must be properly attributed to the original source and cannot form the majority of the OTA Work.

(e) By entering into this Agreement and providing the OTA Work to the Student via BM, the OTA does not violate any other obligation or agreement to which the OTA is a party.  Without limiting the generality of the foregoing, the OTA represents and warrants that this Agreement does not violate any employment agreement with a college or university with which the OTA is employed or at which the OTA is a student; and

(f)  The OTA recognizes and agrees that: (i) the Internet is not a secure medium, and neither the privacy of the OTA's use of the Site or communications via the Site can be guaranteed; (ii) the nature of Internet communications means that communications with BM may be susceptible to data corruption, unauthorized access, interception and delays; and (iii) BM may make changes to the OTA Work and the contents of the Site at any time without notice. The OTA recognizes and agrees that although the security efforts of BM and its partners are generally consistent with standard industry practice, BM cannot guarantee the OTA's complete privacy, confidentiality and security where communication takes place via the Internet, and that BM shall not be responsible or liable for any loss of privacy, disclosure of information, harm, damage or loss that may result from the transmission of information in connection with the OTA’s use of the Site.

(g)	If the OTA is a resident of Canada, he or she is not registered, or required to be registered under Subdivision d of Division V of Part IX of the Excise Tax Act (ETA) pursuant to subsection 165(1) of the ETA.

7.  OTA Work Procedures.

(a)  Post-A-Problem Service.  As an OTA, you agree to review and respond to problems on academic subjects that are posted by students, in connection with the Post-A-Problem Service. The OTA Work shall provide a detailed step-by-step solution to the problem, showing all parts and calculations required for the Student’s complete understanding. The OTA Work shall reflect the OTA's best efforts to respond to the problem and shall be correct, to the best knowledge and ability of the OTA.

(b)  Essay Review Service.  The OTA shall review and provide comments on student essays and other assignments in connection with the Essay Review Service.   The OTA Work shall include comments and / or notes as embedded or black-lined text within the assignment that is returned to the Student and a final grade shall be assigned.  The OTA Work shall reflect the OTA's best efforts and shall be correct and helpful, to the best knowledge and ability of the OTA.

(c)  Return of Student Problems and Essays. In the event that the OTA determines that he or she is unable to provide the appropriate level of advice to Students in connection with the Services, he or she shall expeditiously return the relevant posting to BM immediately upon making such determination.

(d)  Acceptance of OTA Work by Students. OTA Work is subject to Student acceptance, and shall be rated by Students. The Payment (as defined in paragraph 10 below) shall be due to the OTA only when the OTA Work has been accepted and paid for by the Student. OTA Work that is deemed by BM to be unacceptable will be removed from the Site and, where deemed appropriate by BM, the student will be given a refund of BM credits for the OTA Work and the OTA will not be paid for the work.

(e)  No Ghost-Writing.  The OTA agrees that he or she shall be the only one to create and provide OTA Work through his or her account with BM.

8.  The OTA Work.

(a)  License Granted to BM. The OTA shall be deemed to grant BM an exclusive, perpetual, irrevocable, world-wide license to use all of the OTA Work in any manner whatsoever, in consideration of the Payment referenced in paragraph 10 below.  Without limiting the generality of the foregoing, BM may reproduce the OTA Work, or any part thereof, in any media and incorporate it in other works, including but not limited to the BM Solution Library, third party websites or other publications. The OTA acknowledges and agrees that he/she has no financial or other interest, by copyright or otherwise, in any works created by BM from the original OTA Work in connection with the Services.  BM's rights herein may be sub-licensed to third parties in the sole discretion of BM, without any financial obligation or notification to the OTA. OTAs are deemed to have waived their moral rights, if any, in the OTA Work.

(b)  OTA Work Not to Infringe Copyright. OTAs shall ensure, and shall be deemed to have provided a representation to BM, that the OTA Work does not infringe the copyright (for example, by reproducing any part of a work, such as an assignment, journal article or textbook), moral rights or any other right of any third party. This notwithstanding, BM reserves the right to edit the OTA Work as it deems necessary to ensure that copyright and moral rights are not infringed.

(c)  Privacy. OTAs shall respect the privacy of all Students. At no time shall OTAs communicate with Students directly other than as facilitated, arranged, or approved by BM. OTAs shall hold in confidence, and not communicate to any person other than BM, any personal information of any Student received in connection with the OTA’s use of the Site including, but not limited to any Student's e-mail address, university or college, or area of study. OTAs will not submit their own personal information (for example: email address or phone number) to Students.

(d)  Prohibited Content.  The OTA acknowledges that BM reserves the right to revise or delete any OTA Work from the Site for any reason whatsoever. The OTA Work shall not include material that is false, defamatory, abusive, vulgar, hateful, harassing, obscene, pornographic, profane, threatening, or invasive of any person's privacy or intellectual property rights, or that violates any law or is otherwise inappropriate for the Services. Advertisements, chain letters and any other form of solicitation shall not be included in the OTA Work.

(e)  Restrictions on Use of Materials.  All of the Site contents, such as text, graphics, logos, images, audio and video clips, and software (the “Materials”) is the property of BM, or of parties that have assigned or licensed materials to BM, and is protected by Canadian and international copyright laws. Unless otherwise stated, no material from the Site may be copied, reproduced, republished, uploaded, posted, transmitted, communicated to the public by telecommunication, linked, framed, exploited or distributed by any means whatsoever, except that you may download or print a single copy of materials for the purpose of research or private study, provided that you maintain all copyright notices relating to such materials.  Modification of the Materials or use of the Materials for any other purpose is a violation of copyright and other proprietary rights.

(f) Limited License to Use Software.  Where OTAs are permitted to download software in connection with the their use of the Site and provision of the Services, such software, including any files or images incorporated in or generated by the software and any data accompanying the software (collectively, the "Software") is merely licensed to OTAs by BM or others.  This license is personal, non-transferable and non-assignable. Title to the Software is not being transferred to OTAs. Although you may own the medium on which the Software is recorded, BM, or others, retains copyright in and title to the Software and all other intellectual property rights therein. OTA's shall not reproduce, redistribute, sell, decompile, reverse-engineer or disassemble the Software.

9.  Trade Marks.  BrainMass TM is a trade mark of BrainMass Inc.  Other trade marks or trade names contained or referenced on the Site may be the trade marks or trade names of BM or other owners.

10.  Payment for OTA Work.

(a)  Payment Due Following Acceptance By Students.  BM shall remit payments for the OTA Work (“Payment” or “Payments”) to each OTA on a monthly basis, on the 15th of the month following the end of a calendar month period. If the 15th of the month falls on a weekend or holiday, the Payments will be sent on the business day immediately following the weekend or holiday. BM currently renders OTA Payments only through Hyperwallet, PayPal, or by corporate cheque as stipulated by the OTA and as agreed to by BM. In the future BM may be able to offer other payment mechanisms. Payments shall be payable to the OTA only after the OTA Work is accepted by the Student, and the Student's payment is actually received by BM.

(b)  Payment Schedule. The calculation of Payments in respect of all OTA Work shall be as set out in BM's payment schedule, and may be revised by BM from time to time. Currently, the payment schedule is as follows:

Post-A-Problem service: The OTA shall be paid sixty per cent (60%) of the amounts paid by all Students for first ten (10) OTA Works submitted by the OTA following their Registration with BM. For the eleventh (11th) and all subsequent OTA Works, the OTA shall be paid seventy per cent (70%) of the amounts paid by the Students for such OTA Works. The first ten (10) OTA Works shall be defined as any combination of Post-A-Problem and Essay Review OTA Works.

Essay Review Service: The payment schedule shall be the same as that defined above for the Post-A-Problem service.

Solution Library: Students using the BM Solution Library will be able to purchase individual library credits, or packages of library credits in order to download original or modified OTA Works or groupings of OTA Works from the Solution Library. Unless this Agreement is terminated, when and if an OTA Work is posted to the BM Solution Library for ongoing purchase and viewing by other Students, the OTA may receive 50% of the average Net Revenue per library credit actually received by BM from the BM Solution Library in any given month (the “Library Pay Rate”), for each and any library credit spent by Students during that particular month to purchase OTA Works as originally prepared by the OTA. BM may offer access to the BM Solution Library at reduced rates, and, from time to time, may provide free access to the Solution Library in order to promote the Site and the Services. Net Revenue shall be all cash revenue received for Library Credits alone after deducting any editing or commission costs incurred.

From time to time, BM may require that OTAs modify the content and layout of OTA Works contained in the Solution Library so as to maximize the potential for Students to find and download the OTA Works from the Site. Failure by the OTA to adhere to these requirements with respect to any particular OTA Work, as determined solely by BM acting reasonably and after notification to the OTAs of these requirements, may result in the permanent loss by the OTA of any eligibility to receive the Library Pay Rate with respect to any and all future downloads of any particular OTA Work.

(c)  Currency.   All Payments to OTAs are calculated and payable in Canadian currency unless otherwise agreed between BM and the OTAs.

(d)  Minimum Payments.  During the Term of this Agreement, BM reserves the right to accrue the amounts owing to OTAs and to defer disbursement of the Payments until the OTA is owed a minimum of fifty Canadian dollars (C$50.00).

(e)  Pay Rate Eligibility and OTA Payment Information. Unless and until this OTA Agreement has been terminated pursuant to paragraph 4, the OTAs shall be eligible to receive the Library Pay Rate arising from Students' use of the BM Solution Library as described in paragraph 10) b) above. Upon termination of this Agreement, all such payment eligibility shall be terminated. It is the sole responsibility of the OTA to provide notice to BM of his/her current e-mail address and payment information in order to facilitate such payments.

(f) Surcharge for Non-North American Accounts. Where the OTA's bank account, identified in the Registration or as subsequently changed by the OTA, is located outside of North America, BM shall deduct an administrative surcharge, in an amount that BM deems reasonable, in order to recover any additional costs of making the Payments.

11.  Recruiting Services.  BM communicates regularly with corporate recruiters, many of whom are interested in the OTAs as potential employees, following completion of their education.  In order to promote BM's recruiting services, the OTA grants BM permission to provide examples of the OTA Work and a summary of the OTA's qualifications to such corporate recruiters. In the event that any recruiter wishes to make direct contact with the OTA, BM will advise the OTA of such interest and obtain the OTA's permission for his or her e-mail address or other contract information to be provided to the recruiter.

12.  Indemnification.  To the maximum extent permitted by applicable law, the OTA shall defend, indemnify and hold BM, its affiliates and related companies, and any of their respective directors, officers, employees, consultants and agents, harmless from and against all claims, liability, and expenses, including all legal fees and costs, arising out of your breach of any provision of this Agreement.  BM reserves the right, in its sole discretion and its own expense, to assume the exclusive defense and control of any action, claim or matter otherwise subject to indemnification by the OTA.  The OTA will co-operate as fully as reasonably required in the defense of any claim.

13.  Assignment.  This Agreement may be transferred or assigned by BM in its sole discretion.  The rights and obligations of the OTA under this Agreement shall not be assigned without the prior written consent of BM

14.  Severability.  If any provision of this Agreement shall be found to be unlawful, void and unenforceable, then such provision shall be deemed to be severable from this Agreement and will not affect the validity and enforceability of the remaining provisions of this Agreement.

15.  Amendments to this Agreement.  BM reserves the right to make changes to the Services, the Site and this Agreement from time to time. BM shall provide notice of such amendments to this Agreement via e-mail to the OTAs or by way of messages to your BM account.

16.  Notices.  All notices, statements, authorizations or other communications (collectively "Notices"), required or permitted to be given in connection with this Agreement, may be by electronic mail to BM at ota@BrainMass.com, and to the OTA at the e-mail address set out in the OTA’s Registration, or by other methods as agreed to by the parties via e-mail in advance of such Notices being sent.  Either party may provide notice of a change in its e-mail address, by e-mail, from time to time.

17.  English Language.  The parties have agreed and requested that this Agreement be drawn up in English. Les parties aux presentes ont exige que cette entente et tous autres documents envisages par les presentes soient rediges en anglais.

18.  Independent Parties.  BM and the OTA acknowledge and agree that, except as expressly provided for in this Agreement, each is an independent contractor, and that no party shall be considered to be an employee, agent, representative, master or servant of the other party for any purpose whatsoever, and that no party has any authority to enter into any contract, assume any obligations, or give any warranties or representations on behalf of the other party.  Nothing in this Agreement shall be construed to create a relationship of partners, joint-venturers, fiduciaries, or any other similar relationship.

19.  Entire Agreement, Binding.  Subject to the assignment provision contained herein, this Agreement shall exist for the benefit of, and to be binding upon the parties hereto and their respective heirs, executors, administrators, successors, and assigns. This Agreement, incorporating the Registration referred to herein, constitutes the entire agreement between the parties and supersedes any previous agreements or understandings between BM and the OTA.

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