These Terms govern the access and use of the Marking System by Markers who will provide Marking Services to Valenture Institute on the terms and conditions set out in this Agreement.
In this Agreement, the following definitions apply:
"Agreement" means this agreement and any annexures or schedules to this Agreement, including Valenture Institute’s Privacy Policy;
"Assessments" means the individual assessments that make up the Marking Bundle;
"Marking Bundle" means the particular group of Assessments for Marking provided to the Marker by Valenture Institute;
"Marking Services" means marking performed by the Marker in respect of any Marking Bundle or part thereof;
"Marking System" means the software made available by Valenture Institute to facilitate marking;
"Moderation" means the reviewing of any completed Marking Bundle or part thereof for the purposes of assessing the quality of the Marking Services;
"Request for Payment" means the web-based request submitted by the Marker to Valenture Institute for payment of the Marker Fees;
"Marker" means the Marker that will provide the Marking Services to Valenture Institute;
"Marker Fees" mean the fees earned by the Marker in respect of each Marking Bundle, as advertised by Valenture Institute to the Marker through the Marking System;
"Valenture Institute" means Valenture Institute Proprietary Limited (South African registration number 2019/063129/07), a private company incorporated under the company laws of the Republic of South Africa, with its registered address situated at 4 Wandel Street, Gardens, Cape Town, 8001; email: privacy@valentureinstitute.com; and
"VAT" means Value-Added Tax chargeable in terms of the Value-Added Tax Act, 89 of 1991 ("VAT Act"), as may be amended from time to time.
General Obligations of the Parties
Valenture Institute will:
provide the Marker with access to the Marking System;
co-ordinate Marking bundling and distribution between Markers;
make payment of the Marker Fees to the Marker as set out in this Agreement; and
attend to any other reasonable administrative services to facilitate the Marker providing the Marking Services to Valenture Institute.
The Marker will:
Not engage in any conduct that would infringe on the privacy of learners nor make any attempt to contact learners.
indicate interest for Marking of available Marking Bundles that the Marker is suitably qualified and available to mark;
mark the Marking Bundle within the time stipulated by Valenture Institute for each Marking Bundle;
render the necessary Request for Payment to Valenture Institute; and
attend to any other reasonable administrative tasks for purposes of providing the Marking Services.
Relationship between Valenture Institute and Markers
It is the intention of the Parties that the Marker will render the Marking Services to Valenture Institute as an independent contractor. Accordingly, the Parties agree that neither Party is an employee, agent, representative, or partner of the other Party and neither party will have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.
Under no circumstances will the Marker be, or deemed to be, an employee, agent or partner of Valenture Institute for any purposes.
Marking Opportunities
Valenture Institute undertakes to advertise information on Marking Bundles to the Marker through the Marking System in accordance with Valenture Institute's internal processes.
The Marker may confirm interest and availability to offer the Marking Services required by the advertised Marking Bundle to Valenture Institute but acknowledges that, among other factors, Valenture Institute’s discretion dictates whether the Marker will be appointed by Valenture Institute to render the Marking Services.
Valenture Institute does not warrant that this Agreement will result in the Marker being engaged by Valenture Institute to provide the Marking Services.
The Marker may only confirm its interest to provide Marking Services to Valenture Institute if the Marker is suitably qualified to offer the Marking Services required by the Marking Bundle and in accordance with the requirements of Valenture Institute.
Valenture Institute is under no obligation to make a specific Marking Bundle available to the Marker.
Applying for Marking Bundles
Valenture Institute will indicate interest in receiving Marking Services by making the relevant information available to Markers, including:
the scheduling requirements of Valenture Institute, including the commitment required by the Marker in order to attend to all of the Marking Services in the Marking Bundle;
the subject matter of the Marking Services; and
the Marker Fee that the Marker will receive in respect of the Marking rendered.
The Marker must confirm its interest to offer the Marking Services through the Marking System.
Valenture Institute will inform the Marker and provide the Marker with the relevant information about the Marking Bundle if the Marker has been engaged by Valenture Institute.
Marking Services
Valenture Institute will stipulate a time frame in which the Marking Services must be delivered.
Markers are responsible for:
Following the Marking Guidelines set out by Valenture Institute as accurately as possible to ensure good quality marking;
ensuring that they are knowledgeable about the subject matter of the Marking Services that they are performing and the needs of Valenture Institute; and
providing appropriate and necessary materials, tools or supplies required by the Marker's Marking methods.
Marking must be submitted to Valenture Institute to ensure that the Marker receives the Marker Fees for the Marking.
The Marker acknowledges that if the Marking takes longer than the estimated time expected to complete the Marking Bundle, the Marker will not be paid more than the Marking Fee stipulated for that Marking Bundle.
Fees and Payment
Valenture will make payment of the Marker Fees to the Marker monthly in arrears in accordance with the terms of this Agreement.
Request for Payment: the Marker is required to provide Valenture Institute with a monthly Request for Payment. The Request for Payment must set out the following information in respect of the Marking Services rendered during the past month:
the number of Assessments Marked by the Marker;
the Marker Fee per Marking Bundle and the applicable amount of VAT should the Marker be a registered VAT vendor in terms of the VAT Act;
the banking details of the Marker; and
evidence of the completed Marking.
Marker Fees: the Marker will only receive payment of the Marker Fees that have been correctly included on the Request for Payment and evidenced by the Marking System.
No interest: in the event that the Marker does not receive all Marker Fees requested in a particular month for any reason as set out herein, Valenture Institute will not be liable to pay the Marker any interest on such Marker Fees
Other than the Marker Fees, the Marker shall not be entitled to any direct or indirect compensation for the Marking Services unless agreed otherwise in writing between the Marker and Valenture Institute and signed by both parties.
Manner of payment: all Marker Fees will be paid to the Marker via electronic transfer to the nominated bank account of the Marker given to Valenture Institute. Valenture Institute shall not be liable for an error by the Marker in submitting their bank account details which results in the Marker Fees being paid into an account not belonging to the Marker. Any payment to a bank account submitted by the Marker shall deemed to be validly paid.
Foreign currency: in the event that the Marker requires to be paid in a currency other than South African Rand, or into a bank account outside of South Africa, the Marker agrees that any payments due to him will be net of all bank charges and other exchange rate related charges related to or arising out of currency conversions and the transfer to the account of the Marker.
Taxes: with the exception of VAT, which will be payable by Valenture Institute only if the Marker is VAT registered, any and all taxes and/or deductions imposed or assessed by reason of this Agreement or its performance are fully the responsibility of the Marker. The Marker shall be responsible (and absolves Valenture Institute for any liability) for any claims, taxes or penalties assessed by reason of any claims that the Marker is an employee of Valenture Institute, and the Marker indemnifies and holds Valenture Institute harmless from any claims, penalties, damages or similar demand by any tax or revenue authority as a result.
Reasonable cancellation fee: if Valenture Institute cancels or reschedules a Marking Package without providing the Marker adequate notice to inform the Marker that they may no longer continue Marking, the Marker shall have the right to receive payment of the Marker Fee for the Portion of the Marking Bundle/s that s/he has completed.
Marking Bundles and Marking Services
Late return of Marking Bundles: When Markers are given Marking Bundles, they will be informed of the time at which:
Marking is to begin; and
Marking is to be submitted by.
Should the Marker not begin the Marking within the time stipulated and/or should the Marker not submit the Marking within the stipulated time, then Valenture Institute will have the right to allocate the Marking Bundle to another Marker.
If Valenture Institute elects to allocate the Marking to another Marker in terms of clause 8.2, then the Marker will not be entitled to receive their Marker Fees for that Marking Bundle.
Should Valenture Institute allow the Marker to continue despite a breach of clause 8.2, then the Marker will be penalised a percentage of the Markers Fee for that bundle of Marking for the percentage of time that the Marking is late. For greater clarity, should the turnaround time required be 24 hours and should the Marker be 2.4 hours late in delivering the Marking Bundle, then the Marker Fee will be reduced by 10%.
Rescheduling of Marking Services by Markers
Should the Marker no longer be able to perform the Marking Services in respect of a Marking Bundle/Bundles, the Marker must immediately notify Valenture Institute that they can no longer perform the Marking Services.
In the event that the Marker does not notify Valenture Institute within a reasonable period of time, Valenture Institute will have the right to remove the Marker from Valenture Institute’s service.
Replacement of Markers
The Marker acknowledges that Valenture Institute has the discretion to replace one Marker for another.
Moderation
The Marker understands that they will be subject to Moderation by Valenture Institute.
Any due but unpaid Marker Fees and any Marker Fees potentially due in the future shall be withheld until such time as the Moderation is complete.
Upon completion of the Moderation, if Valenture Institute is not satisfied with the Marker’s Marking Services and Valenture Institute requests that the Marker’s Marking Services (or part thereof) be re-marked by a different Marker, then the Marker shall not be entitled to the Marker Fee in respect of the Marking Services (or any part thereof) that is sent for re-marking.
Valenture Institute may remove the Marker from the Marking System and terminate this Agreement in the event that the Marker is subject to Moderation and the Marker’s work is found to be substandard.
Warranties and Representations
The Marker warrants to and in favour of Valenture Institute that:
the Marker has the legal capacity to agree to and be bound by this Agreement and is 18 (eighteen) years or older;
the Marker has not been convicted of any criminal offences and he/she is not the subject of active criminal investigations;
a child has not been removed (whether temporarily or permanently) from the Marker’s care as a result of child protection proceedings nor does the Markers name appear on the child protection register.
the Marker has never been convicted of a sexual offence and the Marker is not listed on the National Register for Sex Offenders.
the Marker will not do or omit to do anything which might prejudice or impede the business and/or interests and/or goodwill of Valenture Institute;
the Marker will comply with all applicable laws and regulations in the course of providing the Marking Services;
the Marker will meet with the designated representative(s) of Valenture Institute at such intervals as are agreed from time to time between the Marker and Valenture Institute to discuss the progress and quality of the Marking Services;
the Marker will use the utmost care and skill in undertaking the Marking Services and exercise the utmost good faith towards Valenture Institute in carrying out his/her obligations in terms of this Agreement and in providing the Marking Services;
the Marker is appropriately experienced and qualified to provide the Marking Services; and
this Agreement constitutes a contract valid and binding on and enforceable against the Marker.
Each of the warranties given by the Marker will:
be a separate warranty and will in no way be limited or restricted by inference from the terms of any other warranty or by any other words in this Agreement;
continue and remain in force irrespective of whether this Agreement is suspended or cancelled; and
be deemed to be material.
Limited Liabilities
To the extent capable of exclusion in terms of applicable laws, the maximum liability of Valenture Institute to the Marker for any costs, claims, penalties, awards, determinations or damages (including, without limitation, any indirect, incidental, special, consequential, punitive, exemplary or other similar damages) which the Marker may suffer or incur, arising out of, or in connection with, whether directly or indirectly, the entering into, implementation and/or termination of this Agreement shall be an amount equal to the Marker Fees paid to the Marker in respect of the specific Marking Bundle from which the costs, claims, penalties, awards, determinations or damages arose.
Valenture Institute shall not be liable to the Marker for any consequential losses suffered or incurred by the Marker under any circumstances.
Indemnity
Important: the Marker indemnifies Valenture Institute against any claims by any third party, that Valenture Institute may suffer or incur as a result of any breach by the Marker of any of the terms of this Agreement
The Marker agrees to indemnify, keep indemnified and defend at its own expense Valenture Institute against all costs, claims, damages, or expenses incurred by Valenture Institute or for which Valenture Institute may become liable due to any failure by the Marker to comply with any of its obligations under this Agreement or POPIA.
Marker conduct toward Valenture Institute
The Marker shall:
only use language that is appropriate and not offensive or discriminatory and treat Valenture Institute with respect;
ensure that all communications with Valenture Institute are appropriate and limited to what is relevant for the Marking;
Not abuse or misuse any technological platform that the Marker is given access to by Valenture Institute;
not make any inappropriate suggestions to the Valenture Institute;
not send any unsolicited communications to Valenture Institute; and
report any dispute or issue, including any inappropriate behaviour or illegal activity, to Valenture Institute.
Termination
At any time, either Valenture Institute or the Marker may immediately terminate this Agreement for any reason or no reason by giving written notice to the other party. In addition to the required notice, the Marker may be required to complete all outstanding Marking Services in any booked Marking Bundles if required by Valenture Institute and this Agreement shall continue to apply until such Marking Services have been completed and the Marker has complied with all obligations in respect of such Marking Services. Further, any provisions of this Agreement that are clearly intended to survive the termination of this Agreement.
Apart from any other provision of this Agreement, Valenture Institute shall have the right to terminate the Agreement immediately without notice or liability for further compensation or any damages if the Marker is guilty of, or there are reasonable grounds for suspecting that the Marker is guilty of, any gross negligence, breach of any law or regulations applicable to the Marking Services, incompetence in the performance of the Marking Services, breach of any provision of this Agreement, including providing inadequate notice to reschedule Marking Services or withdraw from a Marking Bundle, defrauding or attempting to defraud Valenture Institute, its agents or customers or misconduct prejudicial to the interests of Valenture Institute or any of its subsidiary or associated companies.
The result of termination will be that the Marker is removed from the Marking System and will no longer be affiliated or represent themselves as being affiliated with Valenture Institute.
Disputes
Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, any dispute which arises in regard to:
the interpretation of;
the carrying into effect of;
any of the parties' rights and obligations arising from;
the termination or purported termination of or arising from the termination of; or
the rectification or proposed rectification of,
this Agreement, or out of or pursuant to this Agreement between the Marker and Valenture Institute (other than where an interdict is sought, or urgent relief may be obtained from a court of competent jurisdiction) shall be submitted to and decided by arbitration in accordance with the arbitration rules and legislation for the time being in force in the Republic of South Africa.
That arbitration shall be held with only the parties and their representatives present at Cape Town.
The parties shall use their best endeavours to procure the expeditious completion of the arbitration.
The parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.
The arbitrator shall have the power to give default judgment if any party fails to make submissions on the due date and/or fails to appear at the arbitration.
The arbitrator's award shall be final and binding on the parties.
The costs of any venue, arbitrator's remuneration, recording, transcription and other costs and expenses ancillary to the hearing shall be borne by the parties in equal shares and shall be recoverable, as costs in the cause in terms of the provisions of any award. The parties, together with the arbitrator will agree from time to time on the arbitrator's remuneration, which will be paid by the parties in equal shares, upon receipt of invoices.
The provisions of this clause are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
General
Intellectual Property: the Marker acknowledges and agrees that all right, title, and interest in, and to, any of Valenture Institute's intellectual property (including but not limited to any copyright, trademark, design, logo, process, practice, or methodology which forms part of, or is displayed or used on Valenture Institute's (or affiliated) websites) is proprietary to Valenture Institute or the respective owner(s)' property and will remain Valenture Institute’s or the owner's property at all times.
Entire agreement: this Agreement constitutes the whole agreement between the parties relating to the subject matter of this Agreement and supersedes any other discussions, agreements and/or understandings regarding the subject matter of this Agreement.
Confidentiality: neither party shall disclose any confidential information to any third party without the prior written approval of the other party, unless required by law.
Law and jurisdiction: this Agreement and all obligations connected to it or arising from it shall be governed and interpreted in terms of the laws of South Africa. Each party submits to the jurisdiction of the South African courts.
Good faith: the parties shall in their dealings with each other display good faith.
No waiver: the failure of Valenture Institute to insist upon or enforce strict performance by the Marker of any provision of this Agreement, or to exercise any right under this Agreement, shall not be construed as a waiver or relinquishment of Valenture Institute's right to enforce any such provision or right in any other instance.
No assignment: the Marker will not be entitled to cede its rights or delegate its obligations in terms of this Agreement without the express prior written consent of Valenture Institute.
No representation: to the extent permissible by law, no party shall be bound by any express or implied or tacit term, representation, warranty, promise or the like not recorded herein, whether it induced the contract and/or whether it was negligent or not.
Severability: any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement.
No stipulation: no part of this Agreement shall constitute a stipulation in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute such a stipulation.
Being reduced to writing and signed: for purposes of this Agreement, being reduced to "writing" and "signed" shall not include any written email sent between the parties containing their email signatures and include a scanned attachment of an originally signed document or an attachment of a digitally signed document in respect of such email.
Data Protection
Valenture Institute takes the right to privacy seriously and is committed to taking steps to protect Learners' and Marker's privacy and implements business practices that comply with applicable laws, including the Protection of Personal Information Act 4 of 2013 ("POPIA") and the General Data Protection Regulation ((EU) 2016/679) ("GDPR") to the extent that the legislation is applicable.
All personal information of Markers will be processed in accordance with Valenture Institute's Privacy Policy and in compliance with applicable laws. The privacy policy can be found on Valenture Institute's website.
The Marker also agrees to only process personal information received as a result of this Agreement or received for purposes of providing the Marking Services in a manner compliant with POPIA and the GDPR (to the extent applicable) in accordance with Valenture Institute’s instructions.
In this Agreement, the capitalised terms below (including the terms Personal Information, Processed/Process/Processing, Data Subject, Responsible Party, and Operator) shall have the meanings as defined in POPIA.
The Parties acknowledge that as a result of the Marking Services rendered in terms of this Agreement, or otherwise in their dealings, Personal Information of the Parties (including their employees and contractors) and Markers may be accessed, viewed, and Processed by the Parties.
Markers acknowledge that they are aware of the sensitivity of Learners' Personal Information. Personal Information of Learners will not be accessible to or Processed by Markers except to the extent required for the Marking Services, and both Parties shall take commercially reasonable steps to ensure that Learner Personal Information will be encrypted and anonymised (where applicable) and will not be available to the Markers via the Marking System or otherwise.
The Parties agree that they have familiarised themselves with the requirements and provisions of POPIA and have implemented processes and measures to meet the compliance requirements to the extent applicable to that Party.
The Parties agree to not Process or share any Personal Information received from the other as a result of the Agreement for any purpose other than as specified and authorised in terms of this Agreement, unless the Party disclosing the information provides written consent to the other Party to Process the Personal Information for any other purpose.
The Parties will Process Personal Information in a manner that is adequate, relevant, and not excessive for purposes of providing the Services and carrying out their obligations as specified in this Agreement.
The Parties acknowledge and agree that any Personal Information received from one another will remain the exclusive property of the disclosing Party, unless agreed otherwise.
The Parties will take reasonable steps to identify all reasonably foreseeable internal and external risks posed to the Personal Information under each Party's possession or control and establish and maintain appropriate safeguards against any risks identified. In addition, the Parties will ensure that safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.
The Parties implement reasonable appropriate technical and organisational measures to prevent loss of, damage to, unauthorised destruction of, or unauthorised access to Personal Information Processed in order to establish and maintain the security safeguards as required by POPIA.
Markers will notify Valenture Institute as soon as reasonably possible where there are reasonable grounds to believe that:
the Personal Information received from the other Party has been accessed or acquired by any unauthorised person; and
there are reasonable grounds to believe that a security breach has occurred or that a security breach is anticipated (together with the full details of the breach or anticipated breach) that could result in the unauthorised access by any unauthorised person.
Unless otherwise agreed or required by applicable laws and to the extent possible as determined either Party, the Parties shall permanently destroy, delete or return all Personal Information received from one another as a result of this Agreement after a period of 1 (one) month from the date of termination of this Agreement.
Notices.
Valenture Institute selects the address and email address indicated in clause 1 above, as updated from time to time, as its physical and email address for the service of all formal notices and legal processes in connection with this Agreement.
The Marker hereby selects the physical and email address indicated on each Request for Payment as its physical and email address for service of all formal notices and legal processes in connection with this Agreement. The Marker may change these details by providing Valenture Institute with 7 (seven) days' notice in writing.
Service via email shall be accepted in all cases where notice is required. Service via email is deemed to be received at the time and date of sending, subject to the terms of this Agreement that may regulate alternative specific notice requirements in some instances.