APPLICANT DETAILS AND CONTRACT
Please read the following Agreement / Contract very Carefully and fill in the form at the bottom of the page.
Please read the following Agreement / Contract very Carefully and fill in the form at the bottom of the page.
INDEPENDENT CONTRACT AGREEMENT
Independent Contract Agreement between Virtusell (PTY) LTD “the Company”
and the “Contractor”. The Parties to this combined Agreement are:
1.1. Virtusell (PTY) LTD (Registration No. 2014/019179/07); and
2.1. Unless the context dictates otherwise, the words and expressions set forth below shall bear the following meanings and cognate expressions shall bear corresponding meanings:
”Agreement” this Mutual conversion includes any schedules hereto;
“Company” the Party referred to in clause 1.1;
“Independent Contractor” the Party referred to in clause 1.2;
“Group Company” the Company and its holding company and all the subsidiaries of the holding company; holding company and subsidiary company
being given the meanings ascribed thereto in the Companies Act No.71 of 2008;
“Parties” the “Company” and the “Independent Contractor”; and “Party” shall as the context requires, be a reference to anyone or both of them;
“Independent contract Agreement” means this document including any annexure/s thereto.
“Approval” means prior approval in writing, and approve and approved have a corresponding meaning
“Contractor” hereinafter referred to as “the Contractor”
“Notice” means written notice and notify, notifies and notification have a corresponding meaning.
“Party” means the Company or the Contractor
“Parties” means the Company and the Contractor
“The services” means the independent contract services to be provided by the Contractor as set out in the annexure hereto
‘Targets’: As stipulated hereunder in Annexure “A”
“The company”: Virtusell (PTY) LTD Company hereinafter referred to as “the Company”
“Termination”: Termination, cancellation, completion, duration all have a corresponding meaning.
2.2. The headnotes to the clauses of this Agreement are for reference purposes only and shall in no way govern or affect the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.
2.3. Unless inconsistent with the context, an expression which denotes:
2.3.1. anyone gender includes the other gender;
2.3.2. a natural person includes an artificial person and vice versa; and
2.3.3. the singular includes the plural and vice versa.
2.4. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2.5. Where any term is defined within the context of any clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the same meaning as ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation
2.6. The use of the word “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example or examples.
2.7. The rule of construction that, in the event of ambiguity, the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.
2.8. The expiration or mutual conversion of this Agreement to independent contractor or the Employee’s employment agreement shall not affect such of the provisions of this Agreement or the Employee’s employment agreement that expressly provide that such provisions will operate after any such expiration or mutual conversion or which of necessity must continue to have effect after such
expiration or mutual conversion, notwithstanding that the clauses themselves do not expressly provide for this.
2.9. This agreement is combined into two parts, firstly where it is agreed that the employees are aware that they are mutually agreeing to separate voluntarily from the company as employees and convert their terms and conditions to that of independent contractor. Thereafter the terms and conditions under which they will operate as independent contractors are set out in this agreement and
3. BASIS OF AGREEMENT
3.1. Company wishes to contract services of the Contractor to provide the services specified herein. It is essential that the services are provided effectively and independently without supervision and control, subject to the contractor meeting certain targets (sales lead generation quality assurance and or services) as set out herein or annexures attached hereto.
3.2. The Contractor warrants that he/she will have a suitable connectivity (ADSL, Fiber, LTE and WIFI and or 4G and up) and will acquire suitable hardware, a Personal Computer or Laptop to fulfil the role of an Independent Contractor.
3.3. The Contractor warrants that he/she is suitably experienced, qualified and equipped and organised in the provision of the services referred to and required in terms of this Agreement.
3.4. The Contractor wishes to execute the services and provide any other obligations imposed.
4. COMMENCEMENT, TERMINATION, BREACH, DURATION
4.1. Notwithstanding the date of signature hereof, this Agreement will be deemed to have commenced on Commencement Date of the signing of this contract.
4.2. This Agreement will remain open ended until such time of either termination or cancellation or completion of the project of the company.
4.3. It is specifically recorded that there is no expectation that the Agreement will be renewed or prolonged beyond the date of the completion date set out above, termination, cancellation or completion of the project and the contractor as independent contractor does not obtain any rights other than as independent contractor than as employee as a result of this contractual relationship or agreement.
4.4. The termination, cancellation or completion of the project of this Agreement as provided herein shall not be construed as being a retrenchment or a dismissal or termination in any other manner governed by section 186, 187, 189 of the Labour Relations Act 1995, as amended (“the LRA”), but shall be by virtue of the completion or fulfilment of the terms of the contract/ agreement between the parties.
4.5. Should either Party breach or otherwise be in default of any of its obligations under or in terms of this Agreement and remain in default or fail to remedy such breach, if such breach is indeed capable of remedy, within 7 (seven) business days of receipt of written notice calling upon it to do so, the other Party will be entitled, but not obliged, in addition to any other rights which it may have or remedies which may be available to it:
4.6. to cancel this Agreement, with or without claiming damages, provided that such breach constitutes a material breach; or
4.7. to obtain an order against such defaulting Party for specific performance, with or without claiming damages.
4.8. In the event that either Party commits an act of insolvency or is placed under a provisional or final winding-up or judicial management order or if either Party makes an assignment for the benefit of creditors, or fails to satisfy or take steps to have set aside any judgment taken against it within 7 (seven) business days after such judgment has come to its notice, then the other Party will be entitled to terminate the Agreement on written notice.
5. CONFLICT OF INTEREST
5.1. The Contractor may not be engaged whether directly or indirectly in other businesses in direct competition with or other than or similar to the company, unless the contractor obtains prior written consent of the Company during the duration of this contract subject to approval from the company in writing, but this does not restrict the contractor to engage various contracts with other companies subject to approval and or consent by the company.
6. TARGETS, SERVICES
6.1. The contractor will provide the services as set out herein and as set out in annexure “A” as agreed to between the parties.
6.2. The contractor will at all times faithfully, professionally carry out and provide such services.
6.3. The contractor agrees to work from 08:00 to 17:00, Monday to Friday. Where targets were not met at the end of each Friday the contractor has the option to dial clients on Saturdays from 08:00 to 13:00 in pursuit of targets.
7.1. Subject to the Contractor meeting the required standard and Key Performance Indicators (KPI’s) on i) sales lead generation, ii) sales and or iii) Installation and or iv) services, commission will be paid as set out in annexure “A” as agreed to between the parties.
7.2. The Contractor acknowledges that the commission payable is dependent upon achieving Key Performance Indicators (KPI’s) by the Contractor.
7.3. The Company will pay such fees less appropriate TAX deductibles by no later than the last day of every month based on a full trading cycle, a trading cycle being the 26th to the 25th of every Calendar month. Payment of commission will be made one month in arrears.
7.4. The Contractor acknowledges that the commission payable is dependent upon completion of the services fulfilled. No alternative or further expenses may be claimed by the Contractor without the written approval by the Company.
7.5. Failure to meet the required targets may lead to termination of this agreement as specified in aforementioned clauses hereunder without the company incurring any further debt as result thereof.
8. COMPANY’S RIGHTS TO TERMINATION
8.1. The company may terminate this Agreement summarily at any time if the Contractor becomes insolvent; or guilty of fraud or dishonesty; or wilful default; or negligence or incompetence; or if, after warnings within seven (7) days has persisted in failing to provide the services referred to or failing to provide the services referred to or failing to comply with instructions from the Company.
8.2. The company may terminate the contract on completion of the project or completion of the required standards and targets, alternatively in case targets are not met, this agreement may also terminate without further notice to the contractor and this serves as notice of termination in case of failure to meet the required sales targets.
9. CONSEQUENCE OF TERMINATION, BREACH
9.1. In the event that this Agreement is terminated by the Company in terms of clause 6 above, the Contractor acknowledges that no amount will be paid to the Contractor in terms of this Agreement other than what was prescribed and agreed herein subject to meeting the sales targets.
9.2. It is recorded and agreed that the total cost of the in-occupation Training/On-Boarding of the Contractor exceeds the value of R1500 (One Thousand Five Hundred Rand). Thus, in the event that this agreement is terminated by the Contractor for whatever reason within the 3 months of commencement period, it is agreed that the cost will be derived from any money due to the Contractor by the Company as a result of the Lead Generation/Sales. It is further recorded should the Contractor fail to earn above stated amount of R1500 (One Thousand Five Hundred Rand) in any give production cycle, it is agreed that the Company shall carry over any money due to the Contractor by the Company into the following production cycle, subject to the Contractor meeting the Minimum KPI’s and agreed monthly sales targets on the daily, weekly and monthly basis.
9.3. Should the Contractor begin their service later than the 15th of the month, any money due to the Contractor by the Company shall carry over into the following production cycle, subject to the Contractor meeting the Minimum KPI’s and agreed sales targets.
9.4. The telephone lines are to be used solely for the purpose of Lead Generation/Sales for Virtusell and/or its Subsidiaries. The lines are not to be used for personal calls/purposes. Should a contractor be found to have contravened this rule, a fine of R 500.00 will be imposed and deducted from any monies owed to the Contractor.
10.1. Prior to the initiation of formal arbitration procedures, the Parties shall, within 5 (five) business days after the arise of any dispute, first attempt to resolve their dispute informally by reference to a joint committee comprised of a single designated representative of each Party who shall have the authority of the Party he/she represents to settle the dispute.
10.2. Should the designated representatives, within 5 (five) business days after the dispute has been referred to them, conclude in good faith that they are unable to settle the dispute or should either Party have failed to appoint a designated representative on the written request of the other within 5 (five) business days after being requested to do so, then either Party may refer the matter for arbitration in terms of clause 21 (Arbitration) below or to any court in the Republic of South Africa that has the authority to hear any legal proceedings connected with this Agreement.
11. COMPANY’S OBLIGATIONS
11.1. The Company shall as soon as reasonably possible following The Contractor’s reasonable request, provide The Contractor with such information concerning The Company’s operations and activities as may be reasonably necessary for The Contractor to comply with its obligations under this Agreement.
11.2. The Company’s Obligation under clause 6.1 (The Company’s Obligations) shall be subject at all times to:
11.2.1. The Company’s security rules and requirements; and
11.2.2. The confidentiality obligations under the Agreement.
11.2.3. The Company shall provide The Contractor and its Personnel such access to The Company’s Sites as is reasonably necessary in the Company’s’ opinion to allow The Contractor to perform its obligations under this Agreement.
12. WARRANTIES AND UNDERTAKINGS
12.1. The Contractor warrants, represents and undertakes on an ongoing basis that:
12.1.1. the Deliverables will be free from defect, free from any Third Party rights and interests (including liens, charges and options) and that the use or possession by THE COMPANY of any Deliverables will not subject THE COMPANY to any claim for infringement of any Intellectual Property Rights of any Third Party;
12.1.2. all documents, data, software or other materials relevant to the supply of the Services are kept under secure conditions with appropriate back-up arrangements in place.
12.2. The Contractor has and will continue to have all rights in and to the Supplier Tools necessary to perform The Contractor’s obligations under this Agreement;
12.3. The performance of its obligations under this Agreement and THE COMPANY’s use of the Services, any of the Deliverables and any licences granted by The Contractor to THE COMPANY will not infringe any Intellectual Property Rights of any Third Party;
12.4. Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
13. FORCE MAJEURE
13.1. Delay or failure to comply with or breach of any of the terms and conditions of this Agreement if occasioned by or resulting from an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, pandemic, sanctions, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing, will not be deemed to be a breach of this Agreement nor will it subject either Party to any liability to the other.
13.2. Should either Party be prevented from carrying out its contractual obligations as a result of a force majeure event lasting continuously for a period of 30 (thirty) days, either Party shall be entitled, after due consultation with the other Party in an effort to come to a mutually acceptable arrangement, to terminate the Agreement on written notice to the other Party, without liability.
14.1. No variation, modification or waiver of any provisions of this Agreement, or consent to any departure therefrom, shall in any way be of any force or effect unless confirmed in writing and signed by the parties and then such variation, modification, waiver or consent shall be effective only in the specific instance and for the purpose and to the extent for which made or given.
15. SOLE AGREEMENT
15.1. This Agreement constitutes the sole agreement between the parties and no representation not contained herein shall be of any force or effect between parties.
16. MATERIAL TERM
16.1. It is recorded that the timeous execution by the Contractor of the services and obligations as required by this Agreement is material and of the essence to this Agreement.
17. INTERPRETATION CLAUSE
17.1. In this Agreement, unless the context indicates a contrary intention:
17.1.1. The singular includes plural and vice versa,
17.1.2. The headnotes are for reference purposes only and shall not affect the interpretation of any part hereof. A reference to one gender includes the other gender.
17.1.3. A reference to a firm or body corporate includes a natural person and vice versa, The terms and conditions contained in the annexure to this Agreement shall supersede the relevant terms and conditions in the main document
18.1. The parties hereby chose domicilium citandi et executandi for all purpose of and in connection with this Agreement as follows: The Company: Virtusell (PTY) LTD Email: email@example.com
THE COMPANY requires the Contractor to reach the following targets during standard business hours, which are Monday – Friday 08:00 – 17:00.
• 350 Dials per day
• 3.5 Hours of Talk time per day
• 20 Sales per day
The Contractor is required to adhere to Quality standards and Code of Conduct as set out by THE COMPANY which is provided during onboarding as well as ongoing coaching which the Contractor undergoes from time to time. The commission shall be paid as follows, based on total number of QA Qualified Sales achieved by the Contractor in each production cycle:
Some campaigns where Warm Leads are provided such as but not limited to; Reworks, Surveys, Competition, which come at additional cost to company, the Contractor will only be remunerated based on the Tier 1 fee per sale of R10.00. Warm leads yield higher conversion rate than those compared to Cold Calling of up to 4-5 times higher. Therefore, the effort applied by the Contractor to work such leads is less compared to standard campaigns.