The Company owns an online platform (Virtually Tutored herein referred to as “The company”) which facilitates online tutoring to Clients. The Company acts as an agent introducing Independent Service Providers to Clients who have specialised knowledge and skills to perform certain agreed, specified and prescribed services. The Company does not provide these services itself.
The parties acknowledge that the Company is only a platform which enables the connection between client and Independent Service Provider.
The Independent Service Provider does not represent the Company in any capacity whatsoever and cannot bind the Company orally or in writing to any legal obligation, without the Company’s written consent being obtained.
The services of the Independent Service Provider are provided under a separate agreement between the Client and the Independent Service Provider.
Whilst doing its best to vet Independent Service Providers, the presence of an Independent Service Provider on the platform provided by the Company does not amount to an endorsement of the Independent Service Provider.
The Company cannot be held responsible for any damages which are caused by an act or omission by the Independent Service Provider. Any cause of action then rests between the Client and the Independent Service Provider.
The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the party responsible for the drafting thereof, shall not apply in the interpretation of this agreement.
The parties wish to record the terms, which will regulate their relationship in writing.
NOW THEREFORE IT IS AGREED:
The headings of the clauses in this agreement are for the purpose of convenience and reference only and shall not be used in the interpretation, modification or amplification of any clause in this agreement. Unless a contrary intention appears:
1.1 Words importing any one gender shall include any other gender;
1.2 Words importing the singular shall include the plural and vice versa;
1.3 Words importing natural persons shall include created entities (incorporated and unincorporated) and vice versa;
1.4 “Client” means any person who utilised the platform provided by the Company and consequential to that to whom the Company has given a quotation for the supply of prescribed services or to whom the company has introduced the Independent Service Provider with a view to concluding an agreement for the supply of the prescribed services;
1.5 “Independent Service Provider” means a person free to build a multiple concurrent client base, who makes use of the online platform of the company to offer services to clients on an adhoc basis.
2.1 The Company hereby warrants and undertakes to the Client as at the Signature Date and for the duration of this Agreement that:
2.1.1 it is duly constituted, organised and validly existing under the laws of South Africa;
2.1.2 it has the necessary skills, knowledge, expertise and qualifications to provide a platform in accordance with the provisions of this Agreement;
2.1.3 all authorisations required to have been obtained, corporate or otherwise, in order to enable the Company lawfully to enter into and perform the obligations have been obtained and will be maintained for the duration of this Agreement.
2.2. The Client hereby warrants that it is duly constituted, organised and validly existing under the laws of South Africa and is in a position to exercise its obligations and rights in terms of this Agreement.
3. CONTRACTUAL RELATIONSHIP
3.1 The Company provides a platform for the introduction of Independent Service Providers to Clients and vice versa;
3.2 The Company collects payment from the Client for the services rendered by the Independent Service Provider together with its own fee relating to its administration and introduction commission. The rate for services includes the Independent Service Provider’s fees and the Company’s own fee. VAT is applied where appropriate.
4. OBLIGATIONS OF THE CLIENT
The Client shall:
4.1 not enter into an agreement with the Independent Service Provider directly;
4.2 not make payment directly to the Independent Service provider, but shall abide by the payment terms set out herein ;
4.3 shall notify the Company immediately and without delay and in any event within 24 hours if the Independent Service Provider fails to attend to the service or notifies the Client that he/she is unable to attend to the prescribed service for any reason;
4.4 receive the prescribed services via the conferencing platform Zoom, unless otherwise agreed by the Company;
4.5 receive the prescribed services at such locations as may be agreed to between himself/herself and the Independent Service Provider;
4.6 not introduce any party to the Independent Service Provider for receipt of its services outside of the platform the Company has provided;
4.7 refrain from any action which may be prejudice or be adverse to the business interests of the Independent Service Provider or the Company;
4.8 adhere to the cancellation and scheduling provisions linked to the rendering of the service;
4.9 not, for a period of 12 months from the date upon which the Client was introduced to the Independent Service Provider by the Company, or the last date in which the Independent Service Provider rendered the prescribed services to the Client, receive any services or prescribed services (directly or indirectly) to the Client which are either the same or similar to the prescribed services, save and except with the prior written consent of the Company first having been had and obtained, or the Client or the Independent Service Provider paying the company a service fee at the Company’s rate applicable at the time such service opportunity is accepted by the Independent Service Provider;
4.10 not give any fee or gift to any Independent Service Provider.
5. ACKNOWLEDGEMENTS BY THE CLIENT
The Client acknowledges that:
5.1 The Independent Service Provider or any person who may be engaged by the Independent Service Provider, whether for the purpose of rendering the prescribed services or otherwise, has no association or relationship with the Company, of whatsoever nature and howsoever arising;
5.2 the Company provides only an Internet-based marketplace for Clients seeking to identify and retain the services of individuals seeking to provide professional services;
5.3 the Client will perform its obligations and receive the services and abide by the guidelines set forth in the Agreement or any other directive or guideline as may be provided by the Company from time to time;
5.4 the Independent Service Provider may accept or decline an assignment. Upon acceptance of an assignment, the Service Provider will contact the Client within 48 hours to arrange and schedule the initial engagement.
6. PROHIBITION OF OTHER ARRANGEMENTS
In addition to and in amplification of further similar provisions in this agreement,
6.1 The Client will not agree any alternative fees with the Service Provider and agrees not to render any direct payments to the Service.
6.2 The Client is not permitted to enter into any private arrangements with any Independent Service Provider introduced by the Company. The Client undertakes to make all bookings with the Independent Service Provider introduced by the Company exclusively through the Company.
6.3 A breach of these terms will render the Client liable to account to the Company for all sums received by the Independent Service Provider direct from the Client or from a new Client without deduction and the Company shall be entitled to pursue and legal action necessary against the Client to prevent further breaches. These obligations continue beyond the termination or conclusion of this agreement.
6.4 Should you wish to recommend one of the Independent Service Providers to any other Potential or Actual Client, that Client must contact the Company to make a booking through the agency.
7.1 The Client agrees that they will not disclose any confidential information concerning the Independent Service Provider or the Company to any person for the duration of this agreement and for a period of five years after termination of the agreement, save as required by law, court order or any governmental or regulatory authority. More detailed information is available in the Privacy and Data Collection Policy available on the Company’s Website.
7.2 The Client shall sign all reasonable confidentiality clauses that the Company may require him/her to sign.
The following procedures shall be adhered to with regards to payment for the services rendered by the Independent Service Provider:
8.1 The Company will agree a predetermined fee with the Client and this may not be negotiated or adjusted in any way by the Client with the Independent Service Provider.
8.2 Any queries regarding fees by the Client should not be directed to the Independent Service Provider, but should immediately be referred to the Company representative.
8.3 The Company will collect all fees prior to the provision of services and pass a commission on to the Independent Service Provider in accordance with the Company’s creditor cycle.
8.4 The Independent Service Provider shall invoice the company for time spent. The Service Provider shall record all hours spent by him/her in rendering the prescribed services approved of by the Company and countersigned by an authorised representative of the Client in confirmation of such hours;
8.5 The Client shall certify that the services rendered have been performed by the Independent Service Provider in accordance with such Clients expectations;
8.6 Payment can be made by Client online through the Company website or by EFT.
8.7 All payments made by EFT need to reflect in the Company’s account before the Independent Service is introduced to the Client.
8.8 The Company will not allow the Independent Service Provider to deliver any service prior to payment being made and cleared.
9.1 Whilst acknowledging that the current required platform is Zoom, the system or platform may be changed at the discretion of the Company, so as to ensure improved service delivery.
9.2 Should the Company choose to change the system or platform, they will notify the Client accordingly.
10. CANCELLATION POLICY
10.1 In the event of cancellation of a scheduled intervention, the Company must be informed, and an alternative date will be agreed between Client and Independent Service Provider.
10.2 Client should be aware that there can be considerable preparation involved before each session of service delivery.
10.3 Notice of cancellation of a scheduled Session for any reason whatsoever must be given by the Client to the Company more than five hours prior to the scheduled Session. If notice is given more than five hours prior to the scheduled Session, the Client will not be charged for the Session.
10.4 If notice of cancellation of a scheduled Session is given within five hours of the start of the Session, then the Client will be charged with the full payment for that session, , unless both the Independent Service Provider and the Company deems the cause of cancellation to be unavoidable and agrees not to accept payment for the Session.
10.5 Should the Independent Service Provider not be available on the day, the Client will be informed, and a re-arranged time may be offered by the Independent Service Provider . If a suitable alternative time cannot immediately be arranged, the Company must be immediately informed and this will be a credit Session that the Independent Service Provider and the Client can arrange in the future.
10.6 If the delivery of a service falls on a public or religious holiday that either the Independent Service Provider or the Client wishes to observe, then an alternative Session must be arranged and the Company must be informed of any new arrangements.
10.7 If the Client is late for any Service intervention, the Independent Service Provider may choose to but is not obligated to deliver his/her service beyond the scheduled end time. If the Independent Service Provider stops delivering the service at the scheduled end time, the Service intervention will be charged at the usual price. If the Independent Service Provider agrees to work beyond the scheduled end time at the Client’s request, the Independent Service Provider in consultation with the Company may choose to charge the Client for the additional time. If an Independent Service Provider is late for a Session, then it is the duty of the Independent Service Provider to, in consultation with the Company, arrange to make up the lost time.
If the Client chooses to terminate a Service intervention early, the Service intervention will be charged at the usual price.
10.8 Cancellations by the Client of more than 3 occasions in succession, or that which the Company in its sole discretion perceives as unreasonable, regular cancellations, will be considered for immediate termination of the contract, at the Company’s sole discretion.
11.1 The Company is not liable for any injury, loss or damage caused by the Client or the Independent Service Provider or any of the Independent Service Provider’s employees or representatives.
11.2 The Client indemnifies the Company against any claims arising from any injury, loss or damage caused by the Independent Service Provider or any of the Independent Service Provider’s employees or representatives, as more fully expanded upon in the indemnity clause hereunder.
12.1 The Client agrees to indemnify and hold harmless the Company, its subsidiaries, affiliates, and their directors, officers, employees and agents, from and against any and all losses, expenses, costs, liabilities and damages (including any legal fee and expenses), any and all injuries, whether direct, consequential or incidental in nature, which result from, are connected with or arise out of the performance by Independent Service Provider’s services performed in relation to this Agreement.
12.2 The Client understands that the Company offers an Internet-based marketplace for those seeking academic tutoring services to connect with those seeking to provide academic tutoring services.
12.3 Accordingly, the Company makes no representations to the Client about the suitability, character or background of any Independent Service Provider.
13. DURATION AND TERMINATION
13.1 It is recorded and agreed that this contract shall be deemed and considered to be an ongoing contract , in terms whereof the Client utilises the platform provided by the Company to obtain the services of an Independent Service Provider who provides its services to the Client in terms of this agreement.
13.2 Subject to the provisions of this clause, should either party commit any breach of his/her obligations in terms hereof and fail to remedy that breach within 7 (SEVEN) days after receipt of written notice to do so, whether sent by email , post or delivered by hand (subject to the proof of delivery), the other party shall be entitled to terminate this agreement;
13.3 In the event of the Company not receiving payment from the Client on due date, the Company reserves the right to withdraw the Independent Service Provider from the Client without further notice. In the event of such non-payment taking place, the Company reserves to itself the right to cancel this agreement immediately and in such event the Company will have no further obligation to the Client.
14.1 If a Party ("Defaulting Party") commits any breach of this Agreement and fails to remedy such breach within 10 working days ("Notice Period") of written notice requiring the breach to be remedied, or a Causal Event occurs, then the Party giving the notice ("Aggrieved Party") will be entitled, at its option –
14.1.1 to claim immediate specific performance of any of the Defaulting Party's obligations under this Agreement, with or without claiming damages, whether or not such obligation has fallen due for performance and to require the Defaulting Party to provide security to the satisfaction of the Aggrieved Party for the Defaulting Party's obligations; or
14.1.2 to cancel this Agreement, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the giving of the notice. Neither Party shall be entitled to cancel this Agreement unless the breach is a material breach. A breach will be deemed to be a material breach if:-
126.96.36.199 it is capable of being remedied, but is not so remedied within the Notice Period; or
188.8.131.52 it is incapable of being remedied or is not remedied within the Notice Period, and payment in money will compensate for such breach but such payment is not made within the Notice Period.
14.2 The Parties agree that any costs awarded will be recoverable on an attorney-and-own-client scale unless the Court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
14.3 The Aggrieved Party's remedies in terms of this clause are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law.
15.1 The Client agrees and consents to the Company’s use of its details and services to clients for marketing purposes.
15.2 The Company may, in its sole discretion, choose to occasionally use examples of services rendered by the Independent Service Provider to the Client or any related site content as an example of services available on the site.
15.3 The Client grants the Company the authorization to post descriptions of any services or related information on advertisements published or posted by the Company on the site or any other online platform where the Company may choose, in its sole discretion, to market for the site.
15.4 In the event that the Client does not wish for his/her information to be used for marketing purposes, the Client shall notify the Company in writing that it withdraws the consent to use its information as listed in this paragraph.
16.1 Save as provided for elsewhere in this agreement, any dispute between the parties hereto in regard to:
16.1.1 the interpretation of; or
16.1.2 the effect of; or
16.1.3 the implementation of; or
16.1.4 any other matter arising directly or indirectly out of this agreement shall be submitted to and decided by arbitration.
16.2 The arbitration shall be held informally at Johannesburg but otherwise under the provisions of the arbitration laws then in force in the Republic of South Africa; it being the intention as far as possible that the arbitration shall be held and concluded within 21 (twenty-one) days after it has been demanded. The parties shall be entitled to be represented at the arbitration.
16.3 The arbitrator shall be if the matter in issue is:
16.3.1 primarily an accounting matter - an independent chartered accountant of not less than 10 (ten) years standing, practising as a registered auditor, agreed upon between the parties;
16.3.2 primarily a legal matter - a practising Senior Counsel or a practising Attorney of not less than 15 (fifteen) years standing, agreed upon between the parties;
16.3.3 any other matter - an independent person agreed upon between the parties.
16.4 If the parties cannot agree, within 3 (three) days, whether the matter falls within the ambit of clauses 16.3.1, 16.3.2 or 16.3.3 above, then that dispute shall be submitted for decision in terms of clause 16.2 above within 5 (five) days after the parties have so failed to agree, so that the arbitration can be held and concluded as far as possible within the aforementioned period of 21 (twenty one) days.
16.5 If the parties are agreed as to whether the matter falls within the ambit of clauses 16.3.1, 16.3.2 or 16.3.3 above, but fail to agree on the appointment of an arbitrator, then such failure to agree shall be referred to the most senior executive officer of the association representing the particular profession concerned.
16.6 The arbitrator shall decide on such procedures as he may consider desirable for the speedy determination of the dispute and, in particular, he shall have the sole and absolute discretion to determine whether and to what extent it shall be necessary to file pleadings, make discovery of documents or hear oral evidence.
16.7 The decision of the arbitrator (including his determination as to the liability for and payment of costs) shall be final and binding upon the parties, shall be carried into effect by them and made an order of any competent court at the instance of any party.
17. CESSION AND ASSIGNMENT
17.1 The Client may not cede, assign or transfer this Agreement without the prior written consent of the Company.
17.2 The Company has the right to cede, assign or transfer this Agreement to its successors in title.
18. FORCE MAJEURE
18.1 If fulfilment of either parties’ obligations under this Agreement or any assignment is prevented by unforeseen circumstances beyond their control, such as any act of God, major industrial disputes, war, requisitions, rebellions or riots, or defects and delays in delivery of any obligation of any party due to any of the aforementioned circumstances, this shall constitute a ground for discharge from liability for delays in parties meeting their obligations and for relevant liquidated damages and other damages.
18.2 The Independent Service Provider shall continue to provide, and the Client shall continue to pay for those Services not affected by the event of force majeure.
18.3 A Party loses its right to claim relief for force majeure if it does not without undue delay after it realises or should have realised that a case of force majeure exists notify the other Party in writing specifying the nature and extent of the circumstances giving rise to the event of force majeure. After the case of force majeure has ceased, the other Party shall be notified thereof, and be informed of when obligations that were delayed by the event of force majeure will be performed.
18.4 If a Party cannot perform its obligations or that performance is delayed by a force majeure event for more than 20 (twenty) consecutive calendar days or for more than 30 (thirty) calendar days in any 365 days period, then on expiry of that 20 (twenty) or 30 (thirty) whatever the case may be, the other Party may at in its sole discretion terminate this Agreement forthwith by written notice. Without prejudice to any accrued claims, neither Party will have any claims against the other Party arising from or in connection with such termination
No relaxation or indulgence granted by either party shall be deemed to be a waiver of any of that party’s rights in terms hereof nor shall any relaxation or indulgence be deemed to be a novation of any of the terms and conditions of this agreement.
20. PERSONAL INFORMATION
20.1 The Client agrees that the Company, or anyone acting on its behalf, shall be entitled to process his/her personal information (including special personal information), including but not limited to background checks) from time to time, at its discretion.
20.2 The Client agrees that the Company or anyone acting on its behalf, shall be entitled to retain and use his/her personal information (including special personal information) as the Company may from time to time require for its legitimate business purposes.
20.3 The Client furthermore agrees that the Company, or anyone acting on its behalf, may transfer the Client’s personal information (including special personal information) to any associated Company or any other person, whether in South Africa or anywhere else in the world.
The parties hereto choose domicilium citandi et executandi for all notices and process to be given and served in pursuance hereof at their respective addresses given on the first page of this agreement. Any notice of change in such addresses shall be given in writing by the party concerned and delivered by hand or sent by registered mail or fax to the other party and upon notification of which the address so notified will serve as the new domicilium citandi et executandi as aforesaid.
The signatories hereto, whether they act on their own or on behalf of another entity, warrant that they are duly authorised to sign on their behalf or on behalf of that entity.
23. GOVERNING LAW
23.1 This agreement shall be governed in all respects by the laws of the Republic of South Africa and the declaration of any clause herein as invalid shall not affect the validity of any other clause herein which shall remain valid and of full force, notwithstanding such invalidity.
23.2 Any reference to legislation is to that legislation as at the Signature date, as amended from time to time. This is subject to the proviso that if as a result of such amendment or re-enactment, the specific requirements of a section referred to in this Agreement are no longer applicable and/or enforceable, the Parties shall negotiate in good faith to amend the relevant provision of this Agreement so as to comply with the relevant enactment and to ensure that the economic effect of the amended provision of this Agreement will (insofar as it may be reasonably possible) be the same as that of the relevant provision prior to its amendment.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreements shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non script and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction, unless such provision is of the essence of this Agreement.
The Company Terms and Conditions as may be amended from time to time are hereby incorporated into this Agreement.
26. ENTIRE CONTRACT
This document and any Annexures which may be appended hereto, supersedes all prior agreements between the Company and the Client and constitutes the entire agreement between the parties hereto. No agreement at variance with the terms and conditions of this agreement shall be of any force or effect unless in writing and signed by the Company and the Client.