Terms & Conditions
1 1 TUITION SERVICES
AGREEMENT THIS AGREEMENT is between:
(1) The Company defined below; and
(2) The Tutor defined below.
(A) The Tutor provides tuition services on an independent self-employed basis.
(B) The Company is a principal contractual intermediary specialising in sourcing tutors who can provide tuition to students.
(C) The Company’s Client has a requirement for tuition services. The Tutor is one such business and has agreed to provide such expertise.
(D) The Tutor represents that he/she supplies Tuition Services on an independent self-employed basis and that the Tuition Services do not involve the Tutor working for and/or under the supervision, direction or control of any person.
It is agreed as follows:
- Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following definitions shall apply:
“Agency Tax Legislation” means s44-47 and s688 of ITEPA and Regulations 2 and 5 of the Social Security (Categorisation of Earners) Regulations 1978.
“Agreement” means this agreement between the Company and the Tutor comprising the terms set out in this document and each Assignment agreed subject to these terms.
“Annual Rate” shall mean the amount due to the Tutor for each year of Tuition Services provided, as confirmed by the Company in the Assignment Details.
“Applicable Laws” means any and all laws, statutes acts, regulations, codes, judgments, orders, directives or determinations applicable to the provision of the Tuition Services (including any and all updates or amendments from time to time).
“Assignment” means the Tuition Services booked by the Client as either a single lesson or as a course of Hourly 1:1 Tuition and/or Residential Placements as set out and agreed in the Assignment Details.
“Assignment Details” means the details of an Assignment as confirmed by the Company by tutorcruncher email at the start of each Assignment including any document and/or email or subsequent correspondence between the Company and the Tutor which sets out, confirms or clarifies the details of an Assignment.
“Business Day” means any day (other than Saturday or Sunday) on which clearing banks are open for business in London.
“Client” means the person (being an individual who represents a family or any business entity), named in the Assignment Details for whom, or at whose Location, the Tuition Services are performed under this Agreement.
“Client’s Group” (where the Client is a body corporate) means the Client, any body corporate of which the Client is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Client.
“Company” shall mean The Education Hotel Ltd, a company registered under number 12196559 with registered offices at Well House, Chelmsford, CM3 1BT.
“Company Background IPR” means Intellectual Property Rights owned by or licensed to the Company prior to the relevant Start Date including any information the Company provides to the Company and/or the Tutor for the purposes of performing its obligations under this Agreement.
“Company’s Group” means the Company, any body corporate of which the Company is a subsidiary (as defined in section 1159 of the Companies Act 2006), any other subsidiary of such body corporate and any subsidiary of the Company.
“Conduct Regulations” means the Conduct of Employment Agencies and Employment Businesses Regulations 2003.
“Credentials Documents” means any written information provided by the Tutor to the Company about the self-employment, tax status, experience, training, qualifications, authorisations and general suitability of the Tutor for performing the Tuition Services.
“Daily Rate” shall mean the amount due to the Tutor for each day of Tuition Services provided, as confirmed by the Company in the Assignment Details.
“Data Protection Laws” means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including:
(i) EU Regulation 2016/679 as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”);
(ii) the Data Protection Act 2018 (“DPA”);
and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003.
“End Date” shall mean the date on which the Sessions are to end as set out in the Assignment Details.
“Enhanced DBS Certificate” means an enhanced disclosure and barring service check and certificate.
“Fee” means charge for the Tuition Services as set out in the relevant Assignment Details which is calculated by reference to the Hourly, Daily, Weekly and/or Annual Rate.
“Force Majeure” means an event which is beyond the reasonable control of the party affected and which has the effect that that party is prevented from performing its obligations under this Agreement including, but not limited to: acts of God, expropriation or confiscation of facilities, any form of Government intervention or action, war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots, and floods, fires, explosions or other catastrophe, global or national epidemics, pandemics, outbreak or other crisis. Force Majeure does not include:
(a) failure to adequately test any equipment supplied by a third party or other service component prior to installation, or any consequence of any such failure or;
(b) strikes or other industrial action; or
(c) failure to secure materials or resources.
“Good Industry Practice” means the exercise of the skill, diligence, prudence, foresight and judgement which would reasonably be expected from a suitably skilled and experienced person engaged in the Tuition Services or the same or similar type of services as the Tuition Services.
“Home Schooling Placements” shall mean instances where the Tutor shall be providing a Student’s education in lieu of the Student attending school.
“Hourly Rate” shall mean the amount due to the Tutor for each hour of Tuition Services provided, as confirmed by the Company in the Assignment Details.
“Hourly Tuition” means Tuition Services in the form of Sessions taught on an hourly basis at the Location where there is no agreement and/or expectation that the Tutor will need to remain available between two or more such Sessions.
“Intellectual Property Rights” or “IPR” means any patent, copyright (including copyright in software), decryption right, trade mark, service mark or trade name, right in software, right in design, utility model, right in databases (including the right to prevent the extraction or reutilisation of information from a database), topography right, image right, moral right, right in an invention, right relating to passing off, domain name and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in any country in the world.
“Introduce” means the passing to a person of information which identifies or relates to a person who may provide services as a tutor.
“ITEPA” means the Income Tax (Earnings and Pensions) Act 2003.
“Location” means the location where the Tuition Services are to be performed and if they are to be delivered face to face or online as set out in the Assignment Details.
“Loss” means any demand, contribution, claim, action, proceeding, liability, loss, damage, costs, expenses, tax, national insurance contributions (to the extent permitted by law) and charges and any related penalties, fines or interest whatsoever whether founded in statute, contract, tort or otherwise made or brought against or incurred (including without limitation all losses, liabilities and costs incurred as a result of defending or settling any claims.
“Off Payroll IR35 Legislation” means the legislation known as the Off-Payroll Working Legislation, including under ITEPA Part 2 Chapter 8 (Application of Provisions to Workers Under Arrangements Made by Intermediaries) and, (Application of Provisions to Workers’ Services Provided Through Intermediaries to Small Clients) or, as applicable, Part 2 Chapter 10 (Workers’ Services Provided to Public Sector) and, (Workers’ Services Provided Through Intermediaries to Public Authorities or Medium or Large Clients); s688AA of ITEPA; and any regulations that may be implemented in accordance with the Off Payroll Working Legislation. “Reporting Regulations” means s.84(e)-(h) of the Income Tax (Pay As You Earn) Regulations 2003.
“Residential Placements” means Tuition Services in the form of a Session or series of Sessions for the Client at one or more Locations where the Tutor is required to remain available at the Tuition Location between Sessions. For the avoidance of doubt, unless expressly stated otherwise in the Assignment Details, it shall be assumed that there is no obligation for the Tutor to remain available between Sessions and the provisions for Hourly Tuition rather than Residential Placements shall apply.
“Session” shall mean each individual, uninterrupted session in which the Tutor provides Tuition Services to a Student. 4 1
“Start Date” shall mean the date on which the Sessions are to start as set out in the Assignment Details.
“Student” shall mean the person who shall receive the Tuition Services. In some cases, the Client and the Student will be same person.
“Timesheet” shall mean the timesheet to be provided by the Tutor to the Company, as detailed under clause 3.1 below, which shall always be in the specific form provided to the Tutor by the Company.
“Tuition Services” means the Session or series of Sessions to be delivered by the Tutor for the Client as detailed in the relevant Assignment Details comprising Hourly Tuition or Residential Placements.
“Tutor” the individual that agrees to be bound by this Agreement.
“Tutor Background IPR” means IPR owned by or licensed to the Tutor prior to the Start Date.
“Weekly Rate” shall mean the amount due to the Tutor for each week of Tuition Services provided, as confirmed by the Company in the Assignment Details.
“Work Results” means any item of work carried out and delivered pursuant to this Agreement as part of or arising out of the Tuition Services.
1.2 Each term starting with a capital letter and not defined in clause 1.1 or elsewhere in this Agreement is as defined in the Assignment Details.
1.3 Any reference, express or implied, to an enactment includes a reference to that enactment as from time to time amended, modified, extended, reenacted, replaced or applied by or under any other enactment (whether before or after the date of this Agreement) and all subordinate legislation made (before or after this Agreement) under it from time to time.
1.4 Where the context permits, words denoting: (a) persons shall include bodies corporate and unincorporated associations of persons; (b) the singular includes the plural and vice versa; and (c) one gender shall include any gender.
1.5 The Tutor acknowledges and agrees that the terms of this Agreement together with the Assignment Details shall apply on or before the Start Date and for the term of any and each Assignment. In the event of any conflict or inconsistency between any Assignment Details and the terms in this main agreement the terms of the Assignment Details shall take precedence.
1.6 No contractual relationship shall exist between the Company and the Tutor between Assignments.
1.7 For the purposes of the Conduct Regulations the Company shall operate as an “employment agency” in relation to the Tutor (except where any holiday courses are enacted in which case the Company shall act as an employment business).
2 Tutor’s Obligations
2.1 The Tutor shall:
(a) throughout the term of the Assignment supply the Tuition Services in accordance with Good Industry Practice at all times taking responsibility for the way in which the Tuition Services are performed;
(b) have reasonable autonomy in relation to determining the method of performance of the Tuition Services but in doing so shall cooperate with the Client to help ensure that the Tuition Services are generally delivered in line with the Client’s objectives;
(c) throughout the term of the Assignment supply the Tuition Services during the hours from the Start Date until the End Date specified in the relevant Assignment Details (unless a shortened period of time has been agreed with the Client and the Company) at the end of which the Assignment will terminate albeit the terms of this Agreement shall continue unless and until the Agreement is terminated in accordance with clause 9;
(d) use reasonable endeavours to accommodate the lawful and reasonable requests of the Company and/or the Client from time to time in relation to the Tuition Services;
(e) only teach the specific subjects agreed in advance with the Client;
(f) at all times perform the Assignment to the highest standard. In particular, the Tutor shall make every effort to:
(i) be punctual, arriving no later than five minutes prior to the commencement of each Session;
(ii) be presentable and dressed in an appropriate and respectable manner at all times;
(iii) be polite, diligent, and helpful; and
(iv) do all the necessary preparation for each Session.
(g) in the case of Online Tuition keep a Zoom record as proof of Tuition Services provided and the Tutor acknowledges that failure to deliver and return any Zoom Records may (if required by the Company) delay payment to the Tutor while the Company makes enquiries to verify work delivered;
(h) comply with all health and safety, site and security regulations applicable at the Location to the extent that they apply to the type of work required for the provision of the Tuition Services;
(i) comply with the Client’s IT security policies and protocols where required;
(j) comply with all Client’s regulations, policies and protocols as notified by the Client and/or the Company from time to time, except where such regulations and policies relate solely to the Client’s employees;
(k) not engage in any conduct detrimental to the interests of the Client or the Company, including, without limitation, any conduct likely to bring the Client or the Company into disrepute;
(l) at the request of the Client, provide any reports and/or information as to the Student’s performance and his/her own performance and keep the Client informed of any issues or problems with each Student taught, as and when they develop;
(m) not smoke within the vicinity of the Location and ensure that he/she does not smell of smoke at any time during a Session;
(n) not be under the influence of alcohol or any controlled substances, legal or illegal, when providing the Tuition Services.
(o) so far as is reasonable, to be in ready contact by email and telephone with the Client to enable the Client to inform about possible hours of Tuition Services and of any cancellations.
(p) once the Tutor has accepted an Assignment, commit to the specified times and dates.
(q) use all reasonable endeavours to provide at least 48 hours notice to the Company of any period during which the Tutor will be incapacitated, unavailable or otherwise unwilling to perform the Tuition Services in accordance with the cancellation provisions in clause 11;
(r) supply to the Company copies of any relevant qualifications or authorisations that the Tutor is required by law or any professional body to have in order to provide the Tuition Services to the Client including (on such terms as the Company may stipulate including as to charges for that) an Enhanced DBS Certificate;
(s) where necessary, provide at the Tutor’s own cost all such equipment and training for the Tutor as is reasonable for the adequate performance of the Tuition Services;
(u) where any equipment has been provided by the Company or the Client, return such equipment in full working order at the Tutor’s own cost by the end of the relevant Assignment;
(v) indemnify the Company against all Loss incurred by the Company arising out of any negligent, wrongful or fraudulent act or omission of the Tutor;
(w) comply with any code of conduct the Company may from time to time notify to the Tutor;
(x) not Introduce a third party to the Client to provide tuition or consultancy services other than via the Company; and
(y) make up any time either at the end of a Session, or before or after another Session if they are late to a Session. For the avoidance of doubt, if the Client is late, the Tutor is under no obligation to extend the duration of the Tuition Services.
2.2 Where the Client requires assistance in relation to any application to a school, university or academic institution the Tutor shall refer the Client to the Company.
2.3 Any Tuition Services related request that goes beyond or varies what has been agreed in the relevant Assignment Details shall be treated as a variation to the Assignment and the Tutor shall notify the Company via email as soon as reasonably practicable of any proposed alteration, adjustment or extension to the Assignment. The Company shall provide a written response via email and shall not unreasonably withhold its consent to a change or extension requested by the Tutor.
2.4 The Tutor shall bear the cost of any training which the Tutor or any substitute may require in order to perform the Tuition Services.
2.5 It is recommended that the Tutor and the Individual follows government recommendations according to the Gov.UK webpage for the country/countries visited.
2.7 Unless specifically authorised to do so by the Client in writing, the Tutor shall not:
(a) have any authority to include any expenditure in the name or for the account of the Client; or
(b) hold him/herself out as having authority to bind the Client.
2.8 Failure to comply with this clause 2 may result in immediate termination of this Agreement.
- Tutor Fees
3.1 The Fees payable to the Tutor are based upon the rates recorded in the Assignment Details and the Sessions recorded and submitted to the Company from the Tutor via Tutorcruncher. The Tutor shall be paid the Hourly Rate by the Client for each hour of Tuition Services provided, the Daily Rate by the Client for each full day of Tuition Services provided, the Weekly Rate by the Client for each full week of Tuition Services provided or the Annual Rate by the Client for each full year of Tuition Services provided.
3.2 For Hourly Tuition, the Tutor accepts that the Client may elect to change the Tutor or request a different tutor after the first hour if in the reasonable opinion of the Client or Student the Tutor is unsuitable.
3.3 For Hourly Tuition of 5 hours per week or more, Residential Placements and/or HomeSchooling Placements, the Client and Student are strongly encouraged to meet with (or at least have a video conference with) each other before the Assignment is confirmed.
3.4 At the end of each lesson in which the Tutor has provided Tuition Services the Tutor shall be entitled to request payment by logging the lesson on Tutorcruncher. Such payment shall be calculated in accordance with the applicable Fee set out in the Assignment Details.
3.5 The Fee shall be agreed between the parties before the relevant Assignment. The Tutor may request an increase in the Fee, but there is no obligation on the Client to increase the Tutor’s Fee.
3.6 The Tutor agrees to submit all invoices promptly.
3.9 If there is any dispute regarding whether the Tuition Services have been performed and delivered as claimed by the Tutor, the Client reserves the right to withhold payment of the disputed amount on the invoice until such time as the matter is resolved. The parties agree to use their reasonable endeavours to investigate the matter in dispute and to work together in good faith towards a resolution of the disputed sum as soon as reasonably practicable.
3.10 The Client is not obliged to pay any Fees to the Tutor in respect of Tuition Services performed by a Tutor for the benefit of a Client that go beyond or vary what has been agreed in the relevant Assignment Details without the agreement of the Client for such additional services.
3.14 In the event that the Tutor accepts any payment direct from the Client: (a) full monies owing to the Company will be pursued from both the Client and the Tutor; and (b) the Tutor and the Client shall be jointly and severally liable for any costs incurred by the Company in this regard.
3.15 Unless otherwise agreed in the relevant Assignment Details, and subject to Clause 3.16 below the Fee shall be inclusive of all expenses and the Tutor shall not be entitled to claim from the Company or the Client any expenses incurred in connection with the performance of the Tuition Services.
3.16 For tuition where the tutor needs to travel beyond their usually accepted radius, if the Client requires the Individual to travel to a location outside of their usual accepted travel area a) the tutor will need to get agreement from the client in writing b) the Tutor shall recover from the Client all travel expenses via Tutorcrunchers ad hock fees category.
- Tutor’s status and liability
4.1 The Tutor warrants, covenants and undertakes that he/she operates as a self-employed trader on a business to business basis such that the supply made under this Agreement is one of professional consultancy services and that he/she is not subject to (or to the right of) supervision, direction or control of any person as to the manner in which he/she performs the Tuition Services.
4.2 The Tutor shall, subject to working towards meeting the Client’s objectives and time scales, determine generally how and when the Tuition Services shall be performed. The parties acknowledge and agree that the:
(a) Tuition Services do not and will not involve managing the Client’s staff or covering for employed staff of the Client;
(b) Tuition Services do not and will not involve representing the Client or direct contact with the Client’s customers in any material respect for the purposes of commercial negotiation of the like;
4.3 The parties acknowledge that the Tutor is not the employee, worker, agency worker, agent, partner or servant of the Client or the Company and accordingly:
(a) this Agreement is not an exclusive arrangement and nothing in this Agreement shall prevent the Tutor from engaging in other Tuition Services for any third party provided that does not involve any conflict of interest;
(b) neither the Company nor the Client are obliged to offer work to the Tutor, nor is the Tutor obliged to accept or undertake work for the Client or the Company, to work beyond the termination or expiry of the Assignment;
(c) the Tutor shall comply with all legal and fiscal obligations of the country in which the Tuition Services are performed including but not limited to obligations in sub-clause (d) below;
(d) the Tutor agrees that as they are self employed: they will declare their own income, pay their own tax and national insurance.
(e) the Tutor hereby warrants, covenants and undertakes that he/she has valid and subsisting leave to enter and remain in the United Kingdom for the duration of the Assignment, and;
(i) is not (in relation to such leave) subject to any conditions which may preclude or have an adverse effect on the provision of the Tuition Services;
(ii) shall notify the Company without delay his/her right to work and remain in the UK lapses or is withdrawn for any reason;
4.4 The Tutor hereby takes full responsibility and accountability and liability for his/her actions and/or omissions.
4.5 The Tutor warrants, covenants and undertakes that:
(a) he/she works on a self-employed, sole trader basis;
(b) all invoices shall be raised in the Tutor’s name and payable directly to a registered bank account held in the Tutor’s name in the UK (unless the Company agrees otherwise); and
(c) the Tutor shall not supply or purport to supply his/her services to the Company via a personal services company or any other relevant intermediary such that the Off Payroll IR35 Legislation would need to be considered.
4.6 The Tutor shall promptly supply to the Company all such information the Company may require to comply with UK Legal Regulations.
4.8 The Tutor shall indemnify the Company from and against any Loss which the Company may suffer or incur as a result of the failure of the Tutor to comply with any of the representations, warranties and/or undertakings in this clause 4 including, without limitation, any Losses suffered or incurred as a result of:
(a) the Tutor claiming to be; and/or
(b) an official, public body or regulatory authority for any purpose regarding the Tutor as, an employee or worker of the Company or otherwise entitled to any rights or benefits that employees and/or workers enjoy.
4.11 The Tutor shall be liable for and shall indemnify the Company from and against any Loss arising out of or in connection with any breach by the Tutor of the terms of this Agreement including any negligent or reckless act, omission or default in the provision of the Tuition Services.
5.1 The Tutor shall: (a) keep confidential all information relating to the Client’s and the Company’s business and affairs (including, for the avoidance of doubt, Fee Rates, trade secrets, technical or commercial information of the Client which it may obtain during the course of any Assignment or throughout the term of this Agreement) (“Confidential Information”) which may become known to it in connection with the supply of the Tuition Services or this Agreement; (b) not use any Confidential Information except for the purposes of performing the Tuition Services; (c) without delay enter into any and all assignments of intellectual property rights (relating to the Work Results) or confidentiality undertakings that the Client or the Company may require the Tutor to enter into; (d) not without the Client’s or the Company’s express written permission remove from the Client’s or the Company’s premises any material containing any Confidential Information; and (e) on request, return to the Client or the Company (or any other entity as the Client or the Company may direct) all material in its or the Tutor’s possession or control and belonging to the Client or the Company.
The Tutor agrees that any reviews written by the Client regarding their time engaging with the Company and Tutor, online or otherwise, will be directed towards the Company and not the Tutor. The Tutor will not approach a client to ask for or use a quote/review from the Client. If a tutor is found to have made repeated attempts to contact Clients for reviews, the Company will cease working with the Tutor.
The Company has its own review sites that Clients should use. The Tutor must contact the Company if the Client wishes to leave a review of any kind. The Company will then direct the Client to the Company’s own review sites.
The Tutor does not have the right to work with a client presented to them by the Company outside the agreed Assignment. This includes the Client’s extended family and friends as well as anyone introduced to the Tutor by the Client.
- Ownership of Intellectual Property Rights
6.1 All Intellectual Property Rights in any Work Results, and in any materials which are created by or on behalf of the Tutor as a result of the provision of the Tuition Services and which are produced for, on behalf of or at the request of the Client and/or the Company, shall vest in the Tutor (“Tutor IPR”).
6.2 Where any Work Results and any other materials which are otherwise created by or on behalf of the Tutor as a result of the performance of an Assignment are supplied with or have embedded in them Tutor IPR or Tutor Background IPR then the Tutor shall retain ownership of such Tutor Background IPR, but hereby grants to the Client a non-exclusive, perpetual (unless agreed otherwise in the relevant Assignment Details), irrevocable, royalty-free licence to use such Tutor Background IPR in any way whatsoever to facilitate and/or enable full use of the Work Results or other materials and, for this purpose, to sub-license such Tutor Background IPR to third parties.
6.3 The Company shall retain ownership of Company Background IPR.
6.4 Any academic work completed by the Client or any student connected with the Client shall remain the property of the Client/student (whichever applies) and the Tutor shall have no right to use all or part of any such academic work for any purpose other than the delivery of the Tuition Services.
6.5 Nothing in this Agreement shall be construed as transferring the ownership of any Intellectual Property Rights from any party that currently owns or otherwise has valid title to any such IPR, or creates new IPR in the course of this Agreement, to any other party other than by the separate, explicit and unambiguous agreement between the parties concerned to exercise such a transfer under terms specified by any such separate agreement.
7.1 If any dispute arises between the parties with respect to the performance of the Tuition Services, the conformity of the Tuition Services with the provisions of this Agreement or as otherwise specified under this Agreement the parties agree to enter into mediation in good faith to settle such a dispute.
- Protection of the Company’s business
9.1 The Tutor shall for a period of 6 calendar months after the date of termination or expiry of this Agreement:
(a) enter into (or approach with a view to entering into) a similar contract of service contract or for Tuition Services:
(i) direct with the Client; or
(ii) with any member of the Client’s Group; or
(iii) with any other person for whom, or with whom, the Tutor had material contact in the course of its, his or her or their supply of the Tuition Services at any time either in the 6 months prior to such termination or expiry or during the term of this Agreement if such term is a period of less than 6 months;
(b) enter into a contract or other form of agreement with a person other than the Company for the supply of services to the Client or any member of the Clients Group;
(c) induce (or seek to induce) the Client to engage the Tuition Services of any other person in competition with the Company.
10.1 This Agreement shall automatically expire at the End Date if specified in the Assignment Details save to the extent the parties agree otherwise.
10.4 This Agreement may be terminated prior to the relevant End Date:
(i) the Tutor is in breach of any term of this Agreement, which is, in the reasonable opinion of the Company, incapable of being remedied.
(iii) the Company shall become unable to commence, continue or completely perform its obligations under this Agreement by reason of Force Majeure affecting the Company and/or the Client;
(v) the Tutor has in relation to this Agreement committed an act or omission of dishonesty, incompetence or negligence; or is convicted of any indictable criminal offence (other than, where the Tuition Services do not require the Tutor to drive, a road traffic offence for which a penalty of imprisonment is not imposed)
(vii) for any reason the Client: (A) terminates its agreement with the Company relating to the Tuition Services; or (B) cancels its requirement for the Tuition Services prior to the Start Date, in relation to the provision of the Tuition Services by the Tutor or requests that the Tutor be removed or replaced and, for the avoidance of doubt, the Company shall incur no liability for Losses in connection with any such termination;
(viii) the Tutor fails to provide to the Company or Client any information requested by the Company or Client on or prior to the Start Date
(ix) the Tutor fails any required security checks (as detailed in the Assignment Details);
(xii) the Tutor is dishonest or commits fraud (in the reasonable belief of the Company and/or the Client);
(xiii) the Tutor is incapacitated, unable or otherwise unwilling to carry out the Tuition Services in more than two weeks in any month;
10.5 Termination or expiry of this Agreement shall be without prejudice to the rights of the Company arising directly or indirectly out of the acts and/or omissions of the Tutor prior to, in connection with or as a result of such termination or expiry.
10.6 On the expiry or termination of this Agreement (howsoever arising), the Tutor shall:
(a) immediately deliver to the Company (or the Client) all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the Assignment and to the business or affairs of the Company and/or the Client and/or its or their business contacts generally, any keys and any other property of the Company and/or the Client, which is in its, his or her possession or under its, his or her control; and
(b) unless otherwise required by the Client, irretrievably delete any information relating to the Assignment and/or to the business or affairs of the Company and/or the Client and/or its or their business contacts stored on any magnetic or optical disk or memory and all matter derived from such sources which is in its, his or her possession or under its, his or her control.
11.1 Without prejudice to the rights to terminate the whole Agreement under clause 10, where any Session is cancelled (meaning not performed, whether or not notice has been given by the Tutor) by the Tutor with less than 48 hours’ notice the Tutor shall use all reasonable endeavours to rearrange the Session within 10 Business Days. For the avoidance of doubt, this re-arranged Session shall not be arranged to take place at the time of an already scheduled Session.
11.2 Where the Tuition Services are cancelled by the Client:
(a) if the Session is cancelled with less than 48 hours notice the Tutor shall be entitled to his/her Fee for the Session;
(b) if the Session is cancelled with 48 hours notice or more the Tutor shall not be entitled to his/her Fee for the Session; and
(c) the Tutor shall use all reasonable endeavours to re-arrange the Tuition Services within 10 Business Days.
- Details and identity of Tutor(s)
12.1 The Tutor warrants:
(a) the correctness of the information supplied to the Company in any Credentials Documents;
(b) he/she will at all times throughout the Assignment have the experience, training, qualifications and any authorisation which are required by law or by any professional or regulatory body in order to perform the Tuition Services; and that he/she shall, at the Company’s request, provide confirmation of the identity of the Tutor and at least two written references and co-operate in any checks in relation to experience, training, qualifications and authorisations relevant to the performance of the Tuition Services;
(c) he/she will at all times have an up to date Enhanced DBS Certificate, prior to applying for or supplying Tuition Services. The Tutor accepts that the Enhanced DBS Certificate is only valid for 1 year and so they agree to remain on the update service whilst working with Clients.
(d) he/she has no criminal convictions which would reasonably affect the Client’s decision to allow the Tutor access to the Location(s)or to provide the Tuition Services; and
(e) he/she is not prevented by any other agreement or arrangement or any restriction from fulfilling in full his/her obligations under this Agreement.
- Data Protection
13.1 The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing personal data in connection with this Agreement.
13.2 The Tutor shall do nothing to place the Client or the Company in breach of Data Protection Laws.
13.3 The Tutor shall comply with the provisions of Schedule 1 (Data Protection and Security).
14.1 The Tutor acknowledges and agrees that the Company will not tolerate bribery in any form in connection with the conduct of its business and shall comply with all applicable laws, statutes, regulations, codes and guidance relating to anti-bribery and anti-corruption (“Anti-Bribery Laws”), including without limitation the Bribery Act 2010.
15.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements and arrangements (if any) whether written, oral or implied between the Company and the Tutor relating to the Tuition Services and all such agreements still effective at the date of this Agreement (if any) shall (without prejudice to the rights of the Company arising prior to the Start Date in respect of prior breaches by the Tutor of which the Company 17 1 is not aware) be deemed to have been terminated by mutual consent with effect from the relevant Start Date but so that nothing in this clause 15.1 shall operate to exclude or limit the liability of any party in respect of fraud.
15.2 The Tutor acknowledges that, in entering this Agreement, he/she has not relied on any representations by the Company, or the Tutor made before the execution of this Agreement other than those expressly set out in this Agreement.
15.4 This Agreement may be executed in any number of counterparts and by the parties on separate counterparts
15.5 No amendment to this Agreement is effective unless agreed to by each party..
15.7 If any provision or any part of this Agreement is held to be illegal or unenforceable, in whole or in part, under any enactment or rule of law:
(a) such provision or part shall to that extent be deemed not to form part of this Agreement but the enforceability of the remainder of this Agreement shall not be affected; and/or
(b) if any provision shall be found to be void, but would be valid if some part of the relevant provision were deleted the relevant provision shall apply with such deletions as may be necessary to make it valid and effective.
15.8 This Agreement shall be governed by and construed in all respects in accordance with English law and the Courts of England and Wales shall have exclusive jurisdiction.
15.9 Save as set out in clause 15.10, none of the provisions of this Agreement are intended to be for the benefit of, or enforceable by third parties (other than permitted assignees) and the operation of the Contracts (Rights of Third Parties) Act 1999 is excluded.
18 1 Schedule 1. Data protection and security 1. The terms “data controller”, “data processor”, “data subject”, “personal data”, “process”, “processing”, “transfer” and “appropriate technical and organisational measures” shall be interpreted in accordance with the applicable Data Protection Laws. “Client Personal data” shall mean any personal data in relation to which Client is data controller. 2. The parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing personal data in connection with this Agreement. 3. Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Laws, and shall make such information available to any DP Regulator on request. 4. The parties acknowledge and agree that the Tutor may process Client Personal Data in the course of providing the Tuition Services. As such and to the extent the Tutor receives from, or processes any Personal Data on behalf of the Client, the Tutor shall in relation to any such Personal Data so received or processed: (a) process such Personal Data (i) only in accordance with the relevant data controller’s written instructions from time to time (including those set out in this Agreement), unless it is otherwise required by applicable law (in which case, unless such law prohibits such notification on important grounds of public interest, the Tutor shall notify the data controller of the relevant legal requirement before processing the personal data) and (ii) only for the duration of this Agreement; (b) not process such personal data for any purpose other than expressly authorised by the relevant data controller; (c) take reasonable steps to ensure the reliability of all its personnel who have access to such personal data, and ensure that any such personnel are committed to binding obligations of confidentiality when processing such personal data; (d) implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such personal data, including protecting such personal data against the risks of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure, dissemination or access; (e) not transfer, access or process such personal data outside the UK or the European Economic Area without the prior written consent of the relevant data controller (and, if the relevant data controller so consents, take such steps as are required by the relevant data controller to ensure that the relevant transfer, access or processing complies with the Data Protection Laws); (f) inform the relevant data controller within 24 hours if any such personal data is (while within the Tutor’s possession or control) subject to a personal data breach (as defined in Article 4 of GDPR) or is lost or destroyed or becomes damaged, corrupted or unusable; (g) only appoint a third party (including any subcontractors) to process such personal data with the prior written consent of the relevant data controller, and notwithstanding any such appointment the Tutor shall be liable for the acts and omissions of any such third party as if they were the acts and omissions of the Tutor; 19 1 (h) not disclose any personal data to any data subject or to a third party other than at the written request of the relevant data controller or as expressly provided for in this Agreement; (i) as the relevant data controller so directs, return or irretrievably delete all personal data on termination or expiry of this Agreement, and not make any further use of such personal data (except to the extent applicable law requires continued storage of the personal data by the Tutor, and the Tutor has notified the other party accordingly, in which case the provisions of this paragraph 4(i) shall continue to apply to such personal data); (j) provide to the relevant data controller and any DP Regulator all information and assistance necessary or desirable to demonstrate or ensure compliance with the obligations in this paragraph 4(i) and/or the Data Protection Laws; (k) permit the relevant data controller’s representatives to access any relevant premises, personnel or records of the Tutor on reasonable notice to audit and otherwise verify compliance with this Schedule 1 (Data Protection and Security); (l) take such steps as are reasonably required to assist the relevant data controller in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR; (m) notify the relevant data controller within 2 Business Days if it receives a request from a data subject to exercise its rights under the Data Protection Laws in relation to that person’s personal data; and (n) provide the relevant data controller with its full co-operation and assistance in relation to any request made by a data subject to exercise its rights under the Data Protection Laws in relation to that person’s personal data. 5. To the extent that the Tutor processes Personal Data on behalf of the Client, the Tutor shall, when requested to do so by the Client or the Company, enter into legally binding data processing obligations which reflect the obligations set out in paragraph 4 of Schedule 1 (Data Protection and Security). 6. If either party receives any complaint, notice or communication which relates directly or indirectly to the processing of personal data by the other party or to either party’s compliance with the Data Protection Laws, it shall as soon as reasonably practicable notify the other party and it shall provide the other party with reasonable co-operation and assistance in relation to any such complaint, notice or communication. 7. Each party shall without undue delay (and in any event within 24 hours) after discovering any security breach notify the other of the same (including full details of the security breach and its consequences, to the extent known) and will co-operate with the other in respect of the security breach. Unless required by any Data Protection Laws not make any notifications to any applicable regulator or data subjects about the security breach without the data controller’s prior written consent (not to be unreasonably withheld or delayed). 8. The Tutor shall do nothing to place the Client or the Company in breach of Data Protection Laws. 9. The Tutor acknowledges and agrees that when processing the Client Personal Data, the Client’s data processing policies shall apply to such processing.