The topic of monopolies and anti-competitive practices arose on a previous thread. In that context, I brought up the thorny issues of non-competes, in particular Jimmy John’s now rather infamous non-compete clause intended to prevent low wage fast food workers from taking jobs at other sandwich joints. (See Illinois case and NY case). (Turns out this is only one of the non-compete type clauses Jimmy John’s has been sued for. See the non-poaching clause.)
Anyway, since I find quite a few tutoring gigs through online “platforms” as they are called, I now read contracts between platforms and potential contractors from time to time. During a forum discussion of platforms, one visitor told other tutors about a “Frog Tutoring”, she thought we should all find beneficial to add to your stable of platforms. (Contracting with several companies can be sort of like working for Lift and Uber.)
Naturally, I trotted over to Frog to check them out. Wanting more information, like, how much they might pay a tutor, I entered information and filled out a brief form.
Filling out this form did not seem to involve agreeing to anything much. However, it lead me to a dynamic web page with directions on how submit an application to become a tutor. That page required me to sign a contract before learning things like how much I might be paid, whether Frog would actually consider me qualified or other pesky details.
Of course I read rather than reflexively clicking accept. Not only did I find their contract uninviting, I was sufficiently amazed by the provisions that I clicked “save as” on my browser to keep the contract for future reference. I think you will be amazed too!
My amazement is principally related to the “non-compete” and “confidentiality” sections. The contract includes the line “DATED this the 12th day of December, 2018, in Tarrant County, Texas, where the obligations contained in this agreement are performable. ” Their copyright clause indicates “© 2009 FrogTutoring. All Rights Reserved”.
As shown in the screenshot below, the instructions began with two steps, followed by a notice that “You need to accept the Terms Contract before you can use the Site”.

Let’s now discuss the contract. I have no issues through Articles I -IV. Let’s look at Article V:
ARTICLE V.
CONFIDENTIAL INFORMATION; COVENANT NOT TO COMPETE5.01. The Company possesses secret and confidential information and equipment, techniques, processes, procedures, technical data and information, and customer and client lists used or intended for utilization in its operations of which Contractor has obtained or may obtain knowledge and Company would suffer serious harm if this confidential information were disclosed or if Contractor used this information to compete against Company. Accordingly, Contractor hereby agrees that simultaneously with the execution of this Contract, he or she shall execute and deliver to Company and during the term of this Agreement and thereafter as provided therein, abide by the terms of a “Confidentiality Agreement and Covenant Not to Compete”,a copy of which is attached to this Contract as Exhibit A.
So basically: non-compete associated with this contract is sufficiently long as to require an entire additional exhibit!
Before moving on to the document, i.e. Exhibit A, let us consider the claims about “secret and confidential […]”, which does, indeed look a bit boilerplate. After all, in principle all companies have some confidential information that do not wish to have disclosed. Having said that: it is pretty unlikely any individual tutor will be given access to anything truly confidential. What a tutor is likely to have access to is the name and address of individual clients who they subcontract to me to tutor. This is very similar to an Uber driver: The Uber driver does end up briefly meeting and talking to the passengers in their car. They might learn something about the route Uber prefers use to drive from point A to B. Customers can also learn this by using an Uber car to go from point A to point B.
If Frog’s operation does give tutors access to lots of truly confidential information, it’s a slip-shod company that is probably leaking information willi-nilly. Presumably, when operating they do not leak all sorts of confidential information to contractors.
Now for Exhibit A!
CONFIDENTIALITY AGREEMENT AND COVENANT NOT TO COMPETE
The undersigned (hereafter called “Contractor”) has entered into an Independent Contractor Agreement for Academic Consulting Services (the “Contractor Agreement”) with Frog Tutoring, LLC, a Texas Limited Liability Company having a principal place of business in Tarrant County, Texas (hereafter called the “Company”), which is engaged in the business of tutoring services.
By signing this agreement, Contractor acknowledges his or her understanding of the following:
- The Company has information generally not known outside the Company called “confidential information”. All companies must conduct their business through their employees and independent contractors, and consequently many employees and independent contractors must have access to confidential information. At times, the Contractor himself or herself may generate confidential information as a part of his or her services rendered to Company.
- The phrase “confidential information” as used in this agreement comprises any technical, economic, financial, marketing, computer program, regardless of the medium on which they are stored or written, computer software, computer data, computer source and object programs or codes, job operating control language procedures, data entry utility programs, sorts and miscellaneous utilities, disk record layouts, flow charts, data entry input forms, operation and installation instructions, report samples, data files, printouts, or other information which is not common knowledge among competitors or other companies who might like to possess such confidential information or might find it useful. Some examples include prospect lists, customer lists, items in research or development, products, inventions, innovations, designs, ideas, trade secrets, proprietary information, scientific studies or analyses, details of training methods, new products or new uses for old products, merchandising and accounting, long-range planning, financial plans and results, marketing plans, sales and profit figures, computer programs and operating manuals, computer source codes, etc. This list is merely illustrative and the confidential information covered by this agreement is not limited to such illustrations.
- The Company’s confidential information represents the most important, valuable, and unique aspect of Company’s business, and it would be seriously damaged if Contractor breached the position of confidential trust Company has placed in him or her by disclosing such confidential information to others or by departing and taking with him or her the aforesaid unique information compiled over a period of time for the purpose of the Contractor competing against the Company or disclosing such information to the Company’s competitors, now existing or hereafter formed.
It’s certainly true that companies conduct business through employees and contractors. Some of these people need access to some confidential information. But often, the majority of employees need access to very, little to no “confidential” information. I suggest people look at the exhaustive list of potential confidential information. I would suggest that the chance that a tutor would have access to “scientific studies or analyses”, “accounting methods” or “long range planning” is pretty dang slim. It’s probably about as likely as the notion that a Jimmy John’s sandwich delivery guy would have access to these things.
Also: there are some legal problems with contractors requiring independent contractors to undergo large amounts of in house training, as such company specific training and requirements to do things in company specific ways tends to make someone an “employee” rather than an “independent contractor”.
So, while Jimmy John’s might have been able to make a valid claim they provide and require company specific training in skills like “how to wrap sandwiches the Jimmy John’s way”, similar company specific training tends to be less valid for people who work as independent contractors.
But, perhaps all that generality would make sense if the company was about to explain only that you agree to not leak the information. They do require the contractor to pledge that. But they require more. Here goes:
2. Covenants Not to Compete. Contractor agrees as follows:
- Contractor has and will require special training, enhancement of skills and knowledge at Company’s expense, which could be subsequently used to the detriment of Company, Contractor expressly covenants that for a period of five (5) years following the termination of this agreement, or his employment, for any reason, she will not directly or indirectly own, manage, operate or be connected with the ownership, management, operation or control of, consult with, or be an employee for any business offering tutoring services to customers or clients of the Company within the metropolitan area specified in the Contractor Agreement and within five (5) miles of such metropolitan area.
Note, in my case, the “metropolitan area” was “Naperville”. Since I tutor in this area, I already “own, manage and operate” my own tutoring service to customers. Moreover, every single contractor who enters into this agreement currently does this– and the language of the contract appears to permit them to do so while the contract is in place. (In fact, it must. Otherwise, the “contractors” would be “employees”.)
But, evidently, according to this contract, following termination of the agreement, I would be barred from being involved in tutoring services near “Naperville” for 5 years. At least that’s the way it reads to me.
This is justified by a lot of quite hypothetical things, but in reality, I would be binding myself to agree to stop tutoring local students pretty much in the hope that Frog Tutoring would locate students for me, subcontract the job to me, and have me bill the students through them.
In my mind, the above was enough to make me decide not to accept this agreement. It was also enough to make me keep the html to refer back to later.
But there are actually some other clauses I found remarkable. Among other things, had I signed the contract, I would not be allowed to discuss the contract itself and specifically my pay with anyone, especially not other tutors!
3. Non-Disclosure of Terms. Ancillary to the agreement for confidentiality, Contractor agrees to keep all terms of the Contractor Agreement and this agreement, including but not limited to information about Contractor’s compensation, and will not disclose any such information to any third party, specifically including any other independent contractors in a similar relationship with the Company, and any customers or clients of Company.
In case you are wondering if the company means to this contract to bind the tutor: they seem to. In fact, the offer a consideration to make this contract hold. Preceding all the non-compete disclosure requirements, the contract states:
Accordingly, in consideration of ONE DOLLAR ($1.00) paid to Contractor by Company, the receipt and sufficiency of which are hereby acknowledged, Contractor agrees as follows (which will constitute an agreement ancillary to the Contractor Agreement with Company):
and ends with
DATED this the 12th day of December, 2018, in Tarrant County, Texas, where the obligations contained in this agreement are performable.
So, it appears the contract as offered would have me enter a deal where (as far as I can tell), Frog would (perhaps) help me find additional local students to tutor. How much they would charge the students or pay me is unstated; evidently I’d learn that after signing and getting my $1 to make this binding. ( If I ended the contract immediately, it appears I would have given up my right to tutor students locally for 5 years.
What a great negotiating position to begin discussing pay!
Ok… maybe there is some aspect of legalese that only makes it seem to be saying this. Maybe Frog wouldn’t try to hold me to the “5 year non-compete” clause. Maybe, if I took them to court, a Texas judge would throw this out. (Any specialists in TX law out there?) Maybe all sorts of things would happen.
Having said that: I think this contract is much, much to risky for anyone to sign. The exception would be someone who had no intention of tutoring in the Naperville area, ever!











