1.1 The definitions and rules of interpretation in this clause apply in this agreement (unless the context requires otherwise).
Business of the Company: Marking and providing feedback over the internet on work performed by school pupils and by students following certified courses.
Capacity: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity.
Confidential Information: information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs and finances of the Company for the time being confidential to the Company and trade secrets including, without limitation, technical data and know-how relating to the Business of the Company or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, and including (but not limited to) information that the Consultant creates, develops, receives or obtains in connection with this Engagement, whether or not such information (if in anything other than oral form) is marked confidential.
Engagement: the engagement of the Consultant by the Company on the terms of this agreement.
Pre-Contractual Statement: any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the Engagement other than as expressly set out in this agreement.
Services: the services provided by the Consultant as a Tutor in a consultancy capacity for the Company as described under "Business of the Company".
Termination Date: the date of termination of this agreement, however arising.
2. Term of engagement
2.1 The Company shall engage the Consultant and the Consultant shall provide the Services on the terms of this agreement.
2.2 The Engagement shall commence on the date on which the Consultant confirms acceptance of the terms of this agreement and shall continue unless and until terminated by either party on the provision of written notice. Notice of termination can be given without reason and will be effective upon receipt (unless a longer period is stated within that written notice).
3. OBLIGATIONS in performance of the services
3.1 During the Engagement the Consultant shall:
(a) provide the Services with all due care, skill and ability and use his or her best endeavours to promote the interests of the Company;
(b) provide the Services personally other than with written permission from the Company;
(c) proceed on the assumption that the work being marked by the Consultant has been performed by the pupil or student in good faith (and the Consultant will not, for example, make any allegation of plagiarism);
(d) electronically save one copy of every essay or assignment which they have been asked to mark together with a complete marked version of that work;
(e) advise the administrator immediately, where the content of any work passed to the Consultant during the Engagement causes them any concern or should reasonably cause concern (for example, if it discloses or tends to disclose possible abuse or criminal behaviour);
(f) advise the administrator immediately if the work which has been passed to them to mark is blank;
(g) not attempt to make direct contact with or cultivate any relationship with the pupils, students or customers of the Company or provide any feedback which might reasonably be interpreted as inappropriate (including but not limited to content of a potentially sexual nature or comments which disparage the character of the pupil or student); and
(h) promptly give to the Company all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services.
(i) if tutoring directly through myetutor shall not record shared tuitions, nor invite any other third party beyond 'myetutor' representatives to view the tuition, nor broadcast them publicly
(j) shall not share any of their own materials or any third party materials other than those published by myetutor Ltd directly or indirectly, unless given permission to do so in writing
3.2 The Consultant will not have exclusive rights to perform the Services for the Company and will be one of a number of consultants providing the Services to or on behalf of the Company. The Company reserves the right not to provide any work to the Consultant and the Consultant is under no obligation to perform any work for the Company when offered that work.
3.3 If the Consultant accepts work offered by the Company the Consultant shall complete that work within two hours of having accepted that work and payment for that work will be conditional upon this clause being complied with
3.4 If, after having accepted the work as discussed in clause 3.3, the Consultant becomes unable or unwilling to perform that work he or she shall advise the Company of that fact immediately. For the avoidance of doubt, no fee shall be payable in accordance with clause 4 in that event or in respect of any period during which the Services are not provided.
3.5 The Consultant shall not:
(a) have any authority to incur any expenditure in the name of or for the account of the Company; or
(b) hold himself out as having authority to bind the Company.
(c) share resources in the name of the Company.
3.6 The Consultant may use a third party to perform any administrative, clerical or secretarial functions which are reasonably incidental to the provision of the Services provided that:
(a) the Company will not be liable to bear the cost of such functions; and
(b) at the Company's request the third party shall be required to enter into direct undertakings with the Company, including with regard to confidentiality.
However, the Consultant agrees that he or she will not, without written permission from the Company to the contrary, delegate the Services to any other individual.
4.1 The Company shall pay the Consultant a pre agreed fixed fee for each piece of completed work. That fee may vary from time to time but the Consultant will be made aware of the fee available in advance of accepting an offer of work. The Consultant shall be informed via the website, before accepting the work, the time period over which work will be credited to them and payment received.
4.2 The Company shall be entitled to deduct from the fees (and any other sums) due to the Consultant any sums that the Consultant may owe to the Company at any time.
5.1 The Consultant shall bear his or her own expenses incurred in the course of the Engagement.
6. Other activities
Nothing in this agreement shall prevent the Consultant from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Engagement provided that:
(a) such activity does not cause a breach of any of the Consultant's obligations under this agreement; and
(b) the Consultant shall not engage in any such activity if it relates to a business which is competitive with the Business of the Company, without the prior written consent of the Company.
7. Confidential information
7.1 The Consultant acknowledges that in the course of the Engagement he or she will have access to Confidential Information. The Consultant has therefore agreed to accept the restrictions in this clause 7.
7.2 The Consultant shall not (except in the proper course of his duties) either during the Engagement or at any time after the Termination Date, use or disclose to any third party (and shall use his or her best endeavours to prevent the publication or disclosure of) any Confidential Information. This restriction does not apply to:
(a) any use or disclosure authorised by the Company or required by law; or
(b) any information which is already in, or comes into, the public domain otherwise than through the Consultant's unauthorised disclosure.
7.3 The Consultant will return all and any Company property and copies of any documents provided by or to customers of the Company in his or her control or possession to the Company, within 7 days a of a request by the Company to do so.
8. Data protection
The Consultant consents to the Company holding and processing data relating to him or her for legal, personnel, administrative and management purposes and in particular to the processing of any "sensitive personal data" (as defined in the Data Protection Act 1998) relating to the Consultant including but not limited to information relating to any criminal proceedings in which the Consultant has been involved.
9. Use of information
9.1 The Consultant warrants to the Company that he or she will not use for any purposes any documents or information provided to him or her by the Company for the purposes of performing the Services (including but not limited to customer lists and work performed by pupils or students) for any purpose other than performance of the Services.
9.2 The Consultant warrants that he or she shall not disclose any such documents or information to any other individual or organisation and shall take all reasonable steps to ensure that such documents or information to which has or has had access do not pass to any individual or organisation other than where necessary for the performance of the Services and authorised by the Company in writing. In compliance with this clause the Consultant shall not perform the Services in any area where an unauthorised individual or organisation might have access to or sight of the work being marked by the Consultant.
9.3 The Consultant agrees to indemnify the Company and keep it indemnified at all times against all or any costs, claims, damages or expenses incurred by the Company, or for which the Company may become liable, as a result of the Consultant's breach of the warranties in this clause 9. The Company may at its option satisfy this indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.
10. Obligations on termination
On the Termination Date the Consultant shall:
(a) provide all copies of documents passed to the Consultant for the purpose of performing the Services (including but not limited to copies of documents passed to the Consultant for marking during the Engagement and the marked copies of those documents);
(b) after complying with clause 10(a), irretrievably delete any information relating to the Business of the Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his or her possession or under his or her control outside the premises of the Company; and
(c) provide a signed statement that he or she has complied fully with his or her obligations under this clause 10.
11.1 The Consultant shall immediately inform the Company of any change to their professional status (including but not limited to any restrictions placed on their right to teach);
11.2 The relationship of the Consultant to the Company will be that of independent contractor and nothing in this agreement shall render him or her an employee, worker, agent or partner of the Company and the Consultant shall not hold himself or herself out as such.
11.3 This agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Consultant shall be fully responsible for and shall indemnify the Company for and in respect of:
(a) any income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. The Consultant shall further indemnify the Company against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Company in connection with or in consequence of any such liability, deduction, contribution, assessment or claim; and
(b) any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Consultant against the Company arising out of or in connection with the provision of the Services.
11.4 The Company may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Consultant.
11.5 The Company shall act as agent for the Consultant under the following terms:
(a) The Company shall be entitled to a fee not greater than 25% of the fee paid to the agent before taxation for arranging the contract
(b) The Company shall require any agreement between a Purchaser of a service and a Consultant to be fulfilled in a reasonable given the already stated aims of the Company
(c) The Company can withold payment of fees to a Consultant if a Consultant:
(i) incurrs monetary or reputational damage to the Company
(ii) has outstanding debts towards the Company
(iii) if a Purchaser challenges the performance of the Consultant's Service provision
(d) The Company will terminate the relationship with the Consultant and may seek recompense if the Consultant behaves in a way that:
(i) brings the Company into disrepute
(ii) violates the privacy of the Purchaser of the Service
(iii) makes the Purchaser feel uncomfortable, upset or offended in some way
(iv) that reflects badly on the Company in terms of efficency, professionalism and a high standard of education
12. Entire agreement
Each party on behalf of itself acknowledges and agrees with the other party that:
(a) this agreement constitutes the entire agreement and understanding between the Consultant and the Company and supersedes any previous arrangement, understanding or agreement between them relating to the Engagement (which shall be deemed to have been terminated by mutual consent);
(b) in entering into this agreement neither party has relied on any Pre-Contractual Statement; and
(c) each party agrees that the only rights and remedies available to it or arising out of or in connection with any Pre-Contractual Statement shall be for breach of contract. Nothing in this agreement shall, however, limit or exclude any liability for fraud.
No variation of this agreement shall be valid unless it is in writing.
14. Governing law and jurisdiction
14.1 This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Scots law.
14.2 The parties irrevocably agree that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).