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Independent Contractor Agreement

  • Independent Contract entered into between: ONE PERCENT SA (PTY) LTD (Hereinafter referred to as "the Company) and
  • Please submit the following certified documents with your application:
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          • WHEREAS the company and the Contractor agree as follows:

            1. Definitions

            1.1 "Commencement Date" means date of completion of certified training.

            1.2 "The Company" means ONE PERCENT SA (PTY) LTD or any of its successors in title or associated organisations, trading divisions or subsidiaries.

            2. Nature of services

            2.1 The company shall contract with the Contractor and the Contractor shall provide services to the company in the capacity and form of Independent Contractor (Accountant) – Registered within the South African Institute of Professional Accountants or any professional regulatory board (CIMA/SAICA).

            2.2 No expectation of employment is created by this contract or by the Contractor's services with the company. The Contractor agrees and certifies that the Contractor is not entitled in fact or in law, nor does the Contractor have any expectation of, employment with the company, and is an independent contractor to the company.

            2.3 The Contractor is not entitled to any of the employment benefits and conditions applicable to the employees of the company.

            2.4 No employer / employee relationship of any nature whatsoever is created by the terms of this agreement. The Contractor agree that this agreement is in compliance with Section 200A of the Labour Relations Act 66 of 95.

            3. Remuneration

            3.1 The Contractor shall be remunerated for services rendered by him to the company, in terms of this agreement. The Contractor will be entitled to remuneration as per the addendum "A" within this Agreement.

            3.2 All payments listed on Addendum "A", shall be payable monthly in arrears. Payment shall be made on the last day of each and every month, subject to 3.3. below.

            3.3 Payment of remuneration to the Contractor is however subject to the Contractor actually completing an invoice for services rendered and rendering invoice to the company upon the payment date as aforesaid. No payment whatsoever is due to the Contractor if the Paid invoice/s is not rendered by the Contractor to the company.

            3.4 Subjected to clause 3.3., the Contractor is responsible to ensure that all submitted invoices are paid for by the client before any invoice will be taken into consideration for the commission paid out to the Contractor.

            3.5 Any unpaid invoice/s shall not be considered for the commission payable during the current month. Once such unpaid invoice/s has been paid, such commission will be counted for the month after which payment has been received.

            5. Contractor’s powers and duties

            5.1 As a Contractor of the company, the Contractor shall in terms of this agreement:

            5.1.1 Perform all such duties and exercise all such powers in relation to the business of the company as may from time to time be vested in or assigned to him by the company;

            5.1.2 Comply with all reasonable directives from time to time given to him by the company and with all rules and regulations from time to time laid down by the company;

            5.1.3 Abide by bona fide work practices in his relationship with the company;

            5.1.4 Devote the whole of his time, attention and abilities during business hours to the discharge of his duties under this agreement;

            5.1.5 Use his best endeavours properly to conduct, improve, extend, develop, promote, protect and preserve the business interest, reputation and goodwill of the company and carry out his duties in a proper, loyal and efficient manner;

            5.1.6 Undergo or attend any training or other courses as agreed between the company and the Contractor from time to time.

            5.1.7 Comply with all Standard set of Procedure including the billing and costing according to the Costing Structure.

            5.2 It is however recorded that any control and supervision exercised by the company in respect of the Contractor shall be solely for the purposes of ensuring that the Contractor properly discharges his duties in terms of this agreement, and not for the purposes of establishing or indicating the existence of any employment relationship between the parties.

            6. Working hours

            6.1 The hours of work of the Contractor shall be determined and specified by the company from time to time and shall be determined by the nature of the services the Contractor is required to render from time to time.
            6.2 There shall be no limitation on the working hours of the Contractor in order to discharge his / her duties in terms of this agreement.

            7. Period and termination of agreement

            7.1 This agreement may be terminated by either party upon giving 1 (one) month written notice to the other party.

            7.2 This clause however does not in any way prejudice or affect the rights of the company to terminate this agreement on a summary basis without any notice, where such manner of termination is justified by the provisions of the common law and the rules of the company applicable from time to time.

            7.3 During this agreement, should the Contractor fail to oblige and comply with the set terms and conditions as set out in this agreement, the contractor may terminate this agreement and further should such breach result in any damages whatsoever, the Contractor agrees that such breach will be deemed as a material breach of this agreement and agree to be liable for such damages incurred.

            8. Disclosure

            8.1 The Contractor is required to disclose and declare all outside or other interests that are or may potentially be in conflict with the interests of the company. The company may require the Contractor to refrain from such activities, which request it is obliged to observe.

            8.2 The Contractor is further obliged to disclose forthwith to the company any of the following:

            8.2.1 Any mental health or any medical deficiencies, conditions or any such circumstances which could detrimentally affect or in any way influence the Contractor’s employment or the fulfilment thereof with the company, as soon as the Contractor becomes aware of the same;

            8.2.2 Any criminal offence specified in Schedule 1 of the Criminal Procedure Act No. 51 of 1977 or any amendment or variations thereof from time to time, the Contractor or its staff has been convicted of.

            9. Confidentiality

            9.1 The Contractor is required to keep confidential and not to disclose any of the company's trade secrets, confidential documentation, technical know-how and data, drawings, systems, chemical formulae, methods, software, processes, client lists, programmes, marketing and/or financial information to any person other than to persons employed and/or authorised by the company or associated company (where applicable) who are required to know such secrets or information for the purpose of their employment and/or association with the company, both during the continuance of his/her employment hereunder or thereafter.

            9.2 The company and the Contractor hereby acknowledge that the confidential and/or information represents a substantial monetary value to the company.

            9.3 The Contractor shall adhere to the above obligation not to disclose any confidential information to any undertaking, firm, company or person with which the company may at any time be in technical and/or actual competition, co-operation or association.

            9.4 The Contractor acknowledges that the aforesaid obligation shall remain in force indefinitely and notwithstanding termination of this contract for any reason whatsoever.

            10. Access

            10.1 It is recorded that any right of access the Contractor has to any premises of the company is dependent upon the Contractor actually rendering performance and actually fulfilling its duties with the company in terms of this contract or any rules of the company applicable from time to time. Should the Contractor, for any reason whatsoever not render actual performance or fulfil actual duties as aforesaid, the company shall be entitled to require the Contractor to immediately vacate the company premises.

            11. Representations

            11.1 Any representations made, or information supplied or furnished by the Contractor to the company pursuant to the Contractor wishing to procure this contract with the company is warranted by the Contractor to be true and correct.

            12. General

            12.1 Any latitude, extension of time or other indulgence which may be granted to the Contractor by the company or any failure by the company to enforce any of its rights under this agreement at any time shall not, under the circumstances, be deemed to be a waiver of any of the company's rights thereafter to enforce and compel strict compliance with the terms and conditions of this agreement.

            12.2 This agreement shall constitute the entire contract between the parties who by their signatures hereby acknowledge that no representations have been made or warranties given or conditions to stipulations attached to any of the matters referred to in this agreement, save as set out in this agreement. No variation of this agreement shall be of any force or effect unless recorded in writing and signed by or on behalf of the parties by the representatives, duly authorised thereto.

            12.3 As the Contractor is not an employee of the company, the Contractor shall only be remunerated for actual services rendered to the company and shall not be entitled to any leave, sick leave or other employment benefits prescribed by law.

            12.4 Any control and supervision exercised by the company over the Contractor shall only take place in the form of, and to the extent required, to give effect to a proper discharge of the duties of the Contractor in terms of this agreement. Such control and supervision shall not establish the existence of an employment relationship between the parties.

            13. Restraint of trade

            13.1 Specifically for the purposes of this particular clause, the following words shall have the following meaning(s):

            13.1.1 "Business" shall mean any person, business, company, association, corporation, partnership, undertaking, trust, whether incorporated or not;

            13.1.2 "Interest/Interested" shall mean interested or concerned, directly or indirectly, whether as proprietor, partner, shareholder, Contractor, employee, agent, financier, shareholder or in any other capacity whatsoever, and/or permitting his/her name to used in connection with or in any manner relating thereto;

            13.1.3 "The territory" shall mean 50 kilometres within the radius of the Contractor residential areas.

            13.2 All the provisions of this restraint of trade shall strictly apply to the Contractor in respect of all clients, activities, undertakings, business, operations and services of the company.

            13.3 The Contractor records that he/she agrees to this restraint of trade in consideration of:

            13.3.1 All benefits which has or will accrue to him/her from the company;

            13.3.2 His/her knowledge of and/or access to the business methods, business secrets, technological information and data and/or manufacturing / service methods of the company, which are to be known to and which will be gained by him/her;

            13.3.3 The goodwill factor and technological, manufacturing, service and sales expertise in a business and/or undertaking such as the business and/or undertaking of the company;

            13.3.4 The confidential nature of the information, documentation and other data relating the members, customers and suppliers of the company, which are available to the Contractor.

            13.4 In terms of this restraint of trade, the Contractor specifically undertakes and agrees to:

            13.4.1 not to be interested in any business in the territory which carries on business, manufactures, sells or supplies any commodity or goods, brokers or acts as agent in the sale or supply of any commodity or goods and/or performs or renders any service, in competition with or identical or similar or comparative to that carried on, sold, supplied, provided, brokered or performed by the company, during the period of the engagement of the Contractor up to and including the termination of the contract of the Contractor; and

            13.4.2 not to solicit the custom of or deal with or in any way transact with, in competition to the company, any business, company, firm, undertaking, association or person which during the period of 3 (three) years preceding the date of termination of the contract of the Contractor has been a member, customer or supplier of the company in the territory; and

            13.4.3 not to directly or indirectly offer employment to or in any way cause to be employed any person who was employed by the company as at the termination of the contract of the Contractor or at any time within a period of 3 (three) years immediately preceding such termination.

            13.5 Each and every restraint in this entire clause shall operate and be valid and binding for a period of One (1) year in the territory, calculated from the date of termination of the contract of the Contractor in terms of this agreement. This restraint shall apply irrespective of what the cause or reason of such termination may be and whether the fairness of the termination of the Contractor’s contract is challenged or not by the Contractor.

            13.6 Each restraint in this entire clause shall be construed as being severable and divisible and applicable to the Contractor, whether that restraint is in respect of:

            13.6.1 Nature of business or concern;
            13.6.2 Area or territory;
            13.6.3 Articles, commodities or goods sold and/or supplied;
            13.6.4 Services performed or rendered;
            13.6.5 Company or concern entitled to the benefit thereof.

            13.7 Each restraint in this entire clause shall be deemed in respect of each part thereof to be separately enforceable in the widest sense possible from the other parts thereof, and the invalidity or unenforceability of any part thereof shall not in any way affect or taint the validity or enforceability of any other part of such restraints, or in fact any other terms of this agreement.

            13.8 All restraints in this clause are for the sole benefit of the company.

            13.9 The Contractor specifically acknowledges and agrees:

            13.9.1 That he / she has carefully read and considered all the terms and provisions of this clause relating to the restraints applicable to him / her;

            13.9.2 That this clause and/or all the restraints contained therein, after taking all circumstances into account, are fair and reasonable; and

            13.9.3 That should he/she at any time dispute the reasonableness or fairness of any of the provisions of this clause and/or restraints, then and in such event he / she will have the onus to provide or prove such unreasonableness or unfairness.

            14. Policies and procedures

            14.1 The company issues regulations and Set of Procedures from time to time. The details of these rules, regulations and policies can be requested from the company via written request. These regulations and Set of Procedure may change from time to time. Whilst the regulations and Set of Procedure do not form part of the Independent Contractor Agreement, it is the Contractor's obligation in terms of this contract to ensure that the Contractor is familiar with and comply with them.

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