The Company owns an online platform (Virtually Tutored herein referred to as “The company”) which facilitates online services 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 Independent Service Provider who specialises in supplying services in the field of online education and training as and when required, has agreed to render such services to the Client on the basis as determined in terms of this agreement.
The parties intend that the Independent Service Provider shall provide the services to the Company as an Independent Service Provider and not as an employee or agent of the Company. Nothing contained in this agreement shall be considered or be construed as to establish or constitute an employment relationship between the parties. Accordingly, should the Independent Service Provider be an individual, such Independent Service Provider shall not be treated as an employee of the Company for the purposes of any of the employment laws of the Republic of South Africa.
The Independent Service Provider shall not represent the Company in any capacity whatsoever nor bind the Company orally or in writing to any legal obligation, without the Company’s written consent being obtained.
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 and association 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 interacts with the platform “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 Independent Service Provider warrants, as a material term of this agreement, that he/she has the ability, skills, experience and acumen to render the prescribed services and to perform all related functions in a proper, efficient and satisfactory manner.
2.2 The Independent Service Provider further warrants that:
2.2.1 it is duly constituted, organised and validly existing under the laws of South Africa;
2.2.2 it has the necessary skills, knowledge, expertise and qualifications to perform the Services in accordance with the provisions of this Agreement;
2.2.3 it and those it engages to render the services are familiar with the duties and obligations imposed on them by this Agreement and all applicable statutory requirements;
2.2.4 all authorisations required to have been obtained, corporate or otherwise, in order to enable the Independent Service Provider lawfully to enter into and perform the obligations have been obtained and will be maintained for the duration of this Agreement.
3. OBLIGATIONS OF THE INDEPENDENT SERVICE PROVIDER
The Independent Service Provider shall:
3.1 render the prescribed services to the Client with the utmost diligence and care, ensuring that, at all times, the highest professional standards are maintained by him/her;
3.2 be responsible for the content of lessons. These are to be carried out with proper preparation in accordance with a particular course of study, and in accordance with the Client’s instructions and/or relevant exam syllabus;
3.3 render the prescribed services personally to the Client save and except with the prior written consent of the Company and the Client having been had and obtained, in which event the prescribed services may be rendered by an alternative Independent Service Provider;
3.4 render the prescribed services via the conferencing platform Zoom, unless otherwise agreed by the Company;
3.5 Should issues arise around this prescribed delivery system, the Company should be informed immediately.
3.6 only present himself/herself and perform such work as may be required of him/her in terms of the prescribed services;
3.7 refrain from any action which may be prejudice or be adverse to the business interests of the Client or the Company;
3.8 utilise his/her own resources, technology and equipment, in the performance of the prescribed services as prescribed by the Company from time to time, subject to the practicalities of rendering the prescribed services. These practicalities include but are not limited to the Independent Service Provider needing to ensure that he/she has proper means such as data sources and the like to have sessions through the selected delivery system. These means are for the Independent Service Provider’s costs. The Independent Service Provider would also need to ensure that he/she has a proper facility without distractions and sound interference so ensure privacy and sound blocking during the provision of services;
3.9 not, for a period of 12 months from the date upon which the Independent Service Provider was introduced to the Client by the Company, or the last date in which the Independent Service Provider rendered the prescribed services to the Client, render 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;
3.10 on completion of the prescribed services, and on cancellation of this agreement for whatsoever reason and howsoever arising, return to the Client all forms of documentation (of whatsoever nature) and any electronically stored information which was created, compiled or brought into being by the Independent Service Provider or came into his/her possession during the course of the rendering by him/her of the prescribed services;
3.11 have means of transport available to him/her so as to ensure that the prescribed services are rendered at such locations as may be agreed upon between him/her and the Client and in accordance of the provisions of this agreement;
3.12 ensure that, at all times, he/she has access to such facilities and equipment as may be required for the purpose of rendering the prescribed services and, to this end, ensure further that whatever equipment is provided by him/her for the purposes of ensuring due compliance with the provisions of this agreement, is in a proper, orderly and satisfactory working condition;
3.13 ensure that his/her technical knowledge and methodologies are updated and so maintained at all times during the currency of this agreement so as to ensure that the prescribed services are performed in accordance with industry best practices;
3.14 ensure that he/she is readily available, at all times, during the currency of this agreement through, in particular, having a telephone and/or cellular telephone or the provisions of 3.8 above available and maintaining continued accessibility to the internet and e-mail for this purpose, if required;
3.15 not accept any fee or gift from any Client of the Company;
3.16 utilise his/her discretion in the manner in which the prescribed services are to be rendered, subject to the condition, however, that the ultimate objective of the prescribed services is rendered in the manner as determined or required by the Client;
4. ACKNOWLEDGEMENTS BY THE INDEPENDENT SERVICE PROVIDER
The Independent Service Provider acknowledges that:
4.1 his/her relationship with the Company is not one which is based on any employment relationship and that he/she will acquire no expectation, legitimate or otherwise, to acquiring the status of an employee as defined in Section 213 of Act 66 of 1995 or Section 1 of Act 75 of 1997, it being recorded that no law which would otherwise govern the relationship between employer and employee is applicable to the relationship between the Independent Service Provider and the Company;
4.2 any person who may be engaged by the Independent Service Provider, whether for the purpose of rendering the prescribed services in terms of this agreement or otherwise, will have no association or relationship with the Company, of whatsoever nature and howsoever arising;
4.3 the Company provides only an Internet-based marketplace for individuals seeking to identify and retain the services of individuals seeking to provide professional services;
4.4 the Company does not guarantee any minimum amount of work for the Independent Service Provider. This Agreement simply ensures that the Independent Service Provider will be considered for work if and when it is requested by a client;
4.5 the Company can only make payment to the Independent Service Provider in line with the payment terms set out in this agreement and once the Company has received payment from the Client;
4.6 in order to hold our reputation and to provide the best services the Company can, all Independent Service Providers must conduct themselves as professional as possible when dealing with clients or other service providers;
4.7 the Independent Service Provider will perform the services and abide by the guidelines or directives as may be amended from time to time by the Company, set forth in the Agreement or any other directive or guideline as may be provided by the Company from time to time;
4.8 the Independent Service Provider will preapprove timeslots for assignments. Should a Client request one of those timeslots, the Independent Service Provider will be assumed to have accepted the assignment and is obligated to deliver services as requested;
4.9 the Company may ask the Service Provider to meet (in person, via Skype, or phone, or other means) with our staff to complete our screening process. During the meeting, a prospective Independent Service Provider should expect to discuss his/her service style, delivery, experience and provide references for same and should expect to provide the Company with any relevant personal documentation, including but not limited to ID copies, proof of academic qualifications or any other such documents as may be required by the Company from time to time..
The Independent Service Provider shall not during the operation of this agreement or thereafter use for his/her own benefit or for the benefit of any other person or divulge or communicate to any person except to those officials of the Company or the Client whose province it is to know same, the secrets of the Company or the Client or any other information which he/she may receive or obtain in relation to the Company’s or the Client’s affairs or those of its customers or of the working of any process or invention or marketing technique which is carried on or used by the Company or the Client and shall sign all reasonable confidentiality clauses that the Client may require him/her to sign. The Independent Service Provider shall further co-operate with the Company, its Client and any other persons the Company or Client may designate to obtain such security clearance, as the Client requires. This applies to the Independent Service Provider and all persons who assist the Independent Service Provider in rendering the prescribed services in whatsoever capacity.
Insofar as payment with regards to the rendering of the prescribed services is concerned, the following procedures shall be adhered to:
6.1 The company will agree a predetermined fee with the Client and this may not be negotiated or adjusted in any way by the Independent Service Provider, any queries regarding fees by the Client should not be entertained by the Independent Service Provider who should immediately refer the query to the company representative.
6.2 The Company will collect all fees prior to the provision of services and pass a service fee on to you in accordance with the company’s creditor cycle.
6.3 The Independent Service Provider shall invoice the company for services successfully delivered. 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;
6.4 The Independent Service Provider shall invoice for all work completed up to midnight on the 20th of each month by close of business on the 21st of each month – for payment by the last day of the month.
6.5 The invoice period of the Independent Service Provider runs from the 21st of the month to the 20th of the following month.
6.6 Under no circumstances is the Independent Service Provider to attempt to seek or receive compensation directly from a Client of the Company. The Independent Service Provider must verify with the Company that the Client has submitted appropriate billing information. The Company is not responsible for payments for any services provided prior to payment being received from a Client and a Client having appropriate billing information on file.
6.7 Payment of any amounts due in terms of this agreement shall:
6.7.1 be effected in accordance with the creditors payment cycle of the Client;
6.7.2 not be effected without the consent thereto having been obtained, in writing, from the Client which, in essence, shall likewise certify that the services rendered have been performed in accordance with such Clients expectations;
6.7.3 attract such deduction as may be required in terms of the Income Tax Act or any other Law, save to the extent that any directive is provided to the contrary by the appropriate authority. The Independent Service Provider accepts that he/she is liable for his/her own tax;
6.7.4 the Independent Service Provider shall render an Invoice or original Tax Invoice if applicable, to the Company for the actual amount to be paid to the Independent Service Provider for each payment due in terms of this agreement.
The Independent Service Provider acknowledges that he/she is solely responsible for all costs and expenses related to the services provided in this agreement.
8.1 Whilst acknowledging that the delivery system is prescribed by the Company from time to time, the system may be changed at the discretion of the Company, so as to ensure improved service delivery.
8.2 Should the Company choose to change the system, they will notify and instruct the Independent Service Provider accordingly.
8.3 Should the Independent Service Provider fail to adhere to the instruction set out in 8.2 above, that will lead to the implementation of the termination clause as set out in this agreement.
9. CANCELLATION POLICY
In the event of cancellation of a scheduled intervention, the Company must be informed, and an alternative date will be agreed with Client and Independent Service Provider.
10.1 The Company is not liable for any injury, loss or damage caused by the Independent Service Provider or any of the Independent Service Provider’s employees or representatives.
10.2 The Independent Service Provider 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.
10.3 The Independent Service Provider hereby indemnifies and holds the Company harmless against any income tax or related claims, which may be made by the South African Revenue Services (SARS) arising from or in connection with any income received by or accrued to him/her by virtue of the rendering of the prescribed services in terms of this agreement, and to the extent that the Company may be called upon to effect any payment to SARS, the Independent Service Provider undertakes to make such payment forthwith and on demand.
10.4 Save as recorded above, the Independent Service Provider shall not be entitled to any form of benefits.
11.1 The Independent Service Provider 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 Service Provider’s services performed in relation to this Agreement, including any act by the Company inconsistent with Independent Service Provider’s status as an Independent Service Provider.
11.2 The Independent Service Provider understands that the Company offers an Internet-based marketplace for those seeking academic tutoring services to connect with those seeking to provide such services.
11.3 Accordingly, the Company makes no representations to Independent Service Provider about the suitability, character or background of any Company user nor does the Company perform any type of background check of users.
11.4 It is the Independent Service Provider’s sole duty to exercise its own judgment, protocols and/or standards when considering whether to engage in services with each Client. The Independent Service Provider is never obligated by the Company to pursue any opportunity presented through the Company unless the Independent Service Provider chooses to do so.
12.1 Nothing in this agreement shall preclude the Independent Service Provider from accepting or becoming engaged in any other work, assignments or duties for any other entity or individual save to the extent that the provision of any such services or duties, as the case may be, must not, in any way, affect the duration of and the manner in which the prescribed services are to be performed.
12.2 Notwithstanding 12.1 above, the Independent Service Provider will be held liable for any losses, financial or otherwise, caused by the engaging with Clients introduced to him/her through the platform in any capacity outside of the platform.
13. DURATION AND TERMINATION
13.1 It is recorded and agreed that this contract shall be deemed and considered to be an ongoing contract specifically linked and subject to the service agreement between the Company and the Client, in terms whereof the Independent Service Provider provides its services to the Client in terms of this agreement. Therefore, the Independent Service Provider agrees and acknowledges that the terms of this contract apply whenever the Independent Service Provider is engaged with a client of the Company to render applicable services.
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 Independent Service Provider;
13.4 The Independent Service Provider understands that this agreement may be terminated by the Company in the event that Independent Service Provider becomes unable to provide services under the terms of this agreement.
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:-
18.104.22.168 it is capable of being remedied, but is not so remedied within the Notice Period; or
22.214.171.124 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. AUTHORITY TO REPRESENT THE COMPANY
Notwithstanding, anything to the contrary contained herein, the Independent Service Provider acknowledges that he/she or any of his/her representatives and/or agents shall have no authority to represent the Company in any capacity whatever and shall not be entitled to conclude any contracts on behalf of the Company nor sign any documents on behalf of the Company.
16.1 The Independent Service Provider agrees and consents to the Company’s use of its details and services to clients for marketing purposes.
16.2 The Company may, in its sole discretion, choose to occasionally use examples of services rendered by the Independent Service Provider or any related site content as an example of services available on the site.
16.3 The Independent Service Provider 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.
16.4 The Independent Service Provider understands and agrees that the Company’s choice to use or not use the Independent Service Provider’s information in marketing for the Company is made at the Company’s discretion and is not an endorsement by the Company of the Independent Service Provider’s Services.
16.5 In the event that the Independent Service Provider does not wish for its services or related information to be used for marketing purposes, the Independent Service Provider shall notify the Company in writing that it withdraws the consent to use its information as listed in this paragraph.
17.1 Save as provided for elsewhere in this agreement, any dispute between the parties hereto in regard to:
17.1.1 the interpretation of; or
17.1.2 the effect of; or
17.1.3 the implementation of; or
17.1.4 any other matter arising directly or indirectly out of this agreement shall be submitted to and decided by arbitration.
17.2 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.
17.3 The arbitrator shall be, if the matter in issue is:
17.3.1 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;
17.3.2 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;
17.3.3 any other matter - an independent person agreed upon between the parties.
17.4 If the parties cannot agree, within 3 (three) days, whether the matter falls within the ambit of clauses 17.3.1, 17.3.2 or 17.3.3 above, then that dispute shall be submitted for decision in terms of clause 17.2 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.
17.5 If the parties are agreed as to whether the matter falls within the ambit of clauses 17.3.1, 17.3.2 or 17.3.3 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.
17.6 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.
17.7 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.
18. CESSION AND ASSIGNMENT
18.1 The Independent Service Provider may not cede, assign or transfer this Agreement without the prior written consent of the Company.
18.2 The Company has the right to cede, assign or transfer this Agreement to its successors in title.
19. FORCE MAJEURE
19.1 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.
19.2 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.
19.3 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.
19.4 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.
21. PERSONAL INFORMATION
21.1 The Independent Service Provider 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.
21.2 The Independent Service Provider 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.
21.3 The Independent Service Provider furthermore agrees that the Company, or anyone acting on its behalf, may transfer the Independent Service Provider’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.
24. GOVERNING LAW
24.1 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.
24.2 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.
27. ENTIRE CONTRACT
This document and any Annexures which may be appended hereto, supersedes all prior agreements between the Company and the Independent Service Provider 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 Independent Service Provider.