EMPLOYER
1. INTERPRETATION AND PRELIMINARY
Unless a contrary intention clearly appears:
1.1. words importing:
1.1.1. any gender include all others;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;
1.2. the following terms have the meanings assigned to them in this clause 1.2 and related expressions will have corresponding meanings, namely:
1.2.1. “Account Administrator” means the primary administrative Account User of the Employer Account;
1.2.2. “Account User” means the Account Administrator and any employee or contractor of the Employer authorised by the Account Administrator to use the Employer Account;
1.2.3. “Applicable Laws” in relation to a Party, will include all and any:
1.2.3.1. statutes and subordinate legislation and common law, including without limitation:
1.2.3.1.1. the Protection of Personal Information Act, No. 4 of 2013; and
1.2.3.2. regulations; and
1.2.3.3. ordinances and bylaws; and
1.2.3.4. directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self regulatory or other authority or organisation, from time to time, compliance with which is mandatory for that Party;
1.2.4. “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
1.2.5. “Confidential Information” means:
1.2.5.1. any information of whatsoever nature, which has been or may be obtained by a Party from the other Party, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, lists, price lists, studies, findings, any inventions or ideas;
1.2.5.2. analyses, concepts, compilations, studies and other material prepared by or in possession or control of a Party which contain or otherwise reflect or are generated from any such information as is specified in this definition;
1.2.5.3. any dispute arising in terms of these Terms of Service, other than the information in clause 10.4;
1.2.6. “Disclosing Party” means any Party disclosing Confidential Information;
1.2.7. “Force Majeure Event” means an event beyond the reasonable control of the affected Party which was not caused by, and could not have been reasonably planned for, or avoided by, the affected Party, including strikes, lockouts and other industrial disputes, war, riot or civil commotion;
1.2.8. “Parties” means the parties to these Terms of Service, namely the Service Provider and the Employer;
1.2.9. “Payment Method” means any payment method permitted by the Service Provider to pay the Subscription Fees, it being recorded that the current payment method permitted is PayFast;
1.2.10. “Personal Information” means information about an identifiable person, business, or other entity that is not de-identified, as defined in the Protection of Personal Information Act, No 4 of 2013;
1.2.11. “Platform” means the software application developed, hosted and operated by the Service Provider through which the Employer can enter into Transactions;
1.2.12. “Prohibited Activities” means any activities as may be determined by the Service Provider in accordance with clause 23 from time to time;
1.2.13. “Receiving Party” means any Party receiving Confidential Information;
1.2.14. “Service Provider” means Handy Cats Proprietary Limited (Registration No. 2017/198724/07), with its full details as set out in ANNEXURE A;
1.2.15. “Service Provider Intellectual Property” means any and all tangible and intangible rights associated with:
1.2.15.1. names, brands, all patents, trademarks, works of authorship or creative works, images, photographs, designs, design rights, drawings, sketches, models, samples, copyright (including all copyright in any logos, devices, designs and rights in and to the software used in relation to the Platform), systems, methodologies, specifications, inventions, formulae, source codes, proprietary material, ideas, concepts, trade secrets, procedures, skills, tools, methods, techniques, rights in databases, which are held, used or accessed by the Service Provider from time to time;
1.2.15.2. any and all data or meta-data generated by the Employer and/or the Service Provider in relation to their use and provision of the Services;
1.2.15.3. any software, code or programming statements and instructions comprising or forming part of the Site and/or Services, and all related documentation, technical data, instructions, information and functional specifications required for operation;
1.2.15.4. the following domain names:
1.2.15.4.1. www.recruitaguide.co.za;
1.2.15.5. the trade secret rights in relation to the Services;
1.2.15.6. the know-how regarding the Services;
1.2.15.7. the trade names and/or word “recruitaguide” or any other abbreviated form or derivative of the foregoing, used by the Service Provider from time to time, in each case, whether registered or unregistered, and including all improvements thereto from time to time;
1.2.16. “Services” means the following services offered by the Service Provider, namely:
1.2.16.1. the provision of the Platform;
1.2.17. “Subscription Fees” means the per job post fee payable by the Employer to the Service Provider in consideration for the provision of the Services, as set out in ANNEXURE B;
1.2.18. “Site” means the website operated by the Service Provider at the address listed in clause 1.2.15.4.1, or such other address as the Service Provider may specify from time to time;
1.2.19. “Terms of Service” means these terms and conditions relating to the Services, including:
1.2.19.1. the Privacy Policy referenced in clause 12; and
1.2.19.1. all annexures and schedules;
1.2.20. “Transaction” means the listing of a job post by the Employer on the Platform;
1.2.21. “Employer” means any Employer agreeing to these Terms of Service in order to register a Employer Account;
1.2.22. “Employer Account” means an account established by the Employer in accordance with these Terms of Service, in terms of which the Account Users can manage and access details of all Transactions and communications entered into by the Employer with Jobseekers;
1.2.23. “Jobseeker” means a natural person that has created a profile for the purpose of finding a job, on the Platform;
1.3 reference to any legislation is to that legislation as at the date of access and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such legislation. Any reference to a particular section in any legislation is to that section as at the date of access, and as amended or re enacted from time to time and/or an equivalent measure in any legislation, provided that if as a result of such amendment, the specific requirements of a section referred to in these Terms of Service are changed, the relevant provision of these Terms of Service will be read also as if it had been amended as necessary, without the necessity for an actual amendment;
1.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, regardless that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of these Terms of Service;
1.5. when any number of days is prescribed in these Terms of Service, whether the period is to be calculated forwards or backwards, the ordinary civilian method will apply to the calculation as follows: include the first day and exclude the last day (FILO), unless the last day falls on a day that is not a Business Day, in which case the last day will be the next succeeding Business Day;
1.6. if figures are referred to in numerals and in words and if there is any conflict between the two, the words will prevail;
1.7. expressions defined in these Terms of Service will bear the same meanings in schedules or annexures to these Terms of Service which do not themselves contain their own conflicting definitions;
1.8. if any term is defined within the context of any particular clause in these Terms of Service, 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, will bear the meaning ascribed to it for all purposes in terms of these Terms of Service, regardless that the term has not been defined in this clause 1;
1.9. provisions of these Terms of Service may survive the expiration or termination of these Terms of Service if that is expressly provided for or if such survival is necessary to achieve the Parties’ express intention;
1.10. the rule of construction that a contract will be interpreted against the Party responsible for the drafting or preparation of the contract, will not apply;
1.11. any reference in these Terms of Service to a Party will include a reference to that Party’s assigns expressly permitted under these Terms of Service and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
1.12. the words “include”, “including” and “in particular” will be construed as being by way of example or emphasis only and will not be construed, nor will they take effect, as limiting the generality of any preceding word(s); and
1.13. any reference in these Terms of Service to any other agreement or document will be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.
2. APPLICATION OF THESE TERMS OF SERVICE
These Terms of Service will be applicable and be binding on the Employer for so long as the Employer Account remains active, unless indicated otherwise in these Terms of Service.
3. ELIGIBILITY REGARDING THE SERVICES
3.1 To be eligible to use any Service, the Employer must:
3.1.1. create and maintain the Employer Account;
3.1.2. provide any information requested by the Service Provider, including any Personal Information or Confidential Information;
3.1.3. complete any identity verification procedures prescribed by the Service Provider, to the satisfaction of the Service Provider.
3.2. Upon creation of an Employer Account as contemplated in clause 3.1.1, a contract will have been formed between the Employer and the Service Provider on the terms set out in these Terms of Service.
3.3. These Terms of Service will be accessible by the Employer at all times through the Employer Account.
3.4. The Service Provider may, in the Service Provider’s sole discretion, refuse to allow the registration of any Employer Account.
3.5. Further to clause 3.1.3, the Service Provider may require the Employer to undergo any further or additional identity verification procedures determined by the Service Provider in its sole discretion from time to time.
4. PROVISION OF THE SERVICES
4.1. The Services are accessible through:
4.1.1. the Site; or
4.1.2. such other means as the Service Provider may make available from time to time.
4.2. The Service Provider reserves the right:
4.2.1. to modify or discontinue, temporarily or permanently, all or any part of any Service, with or without notice; and/or
4.2.2. to impose limitations and/or restrictions on any Service at any time in its sole discretion; and/or
4.2.3. to delay or cancel any Transaction relating to any Service if there is any risk of fraud or illegal activity.
4.3. The Employer acknowledges that the inclusion of any hyperlinks or any advertisement of any third party on the Site or Platform does not imply endorsement by the Service Provider of their products, services, business or security practices or any association with its operators. Further, the Employer acknowledges and agrees that:
4.3.1. accessing and using any third party websites, applications, products, services, and/or business, is done at the Employer’s sole and exclusive risk;
4.3.2. the Service Provider has no association with any of the trademarks or brands of the service providers providing the list of available Payment Methods; and
4.3.3. the Service Provider has no association with any of the trademarks or brands of the service providers providing any advertisement.
5. USE OF THE SERVICES BY THE EMPLOYER
5.1. The Employer undertakes to use the Services solely for its internal business purposes, in accordance with these Terms of Service and the Applicable Laws at all times.
5.2. The Employer agrees that the Employer will not at any time attempt or actually (whether alone or in conjunction with any third party):
5.2.1. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any part of any Service;
5.2.2. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any security features of any Service;
5.2.3. infect any Service with any software, malware or code that may infect, damage, delay or impede the operation of any Service or which may intercept, alter or interfere with any data generated by or received through any Service;
5.2.4. allow any third party to use the Employer Account in any way or deal with any Services in any manner other than as permitted by these Terms of Service;
5.2.5. access any account that is not the Employer Account;
5.2.6. use the Site or Services to solicit services or work;
5.2.7. post or upload any offensive, obscene, defamatory, pornographic or otherwise illegal content on the Services (including on any communication functionality provided for in the Services from time to time); and
5.2.8. use the Services for any Prohibited Activities or in contravention of the Applicable Laws.
5.3. The Employer agrees that it will be solely liable for all taxes, penalties, costs, charges or other amounts that they may incur pursuant to their use of the Services.
6. SUBSCRIPTION FEES
6.1. In consideration for the provision of the Services, the Employer will pay the Subscription Fees to the Service Provider.
6.2. Unless agreed otherwise in writing by the Service Provider, payment of the Subscription Fees will be made by the Employer using the Payment Method, free of set-off, or deduction of any kind.
6.3. The Service Provider reserves the right to suspend the Employer’s access to the Services in the event that the Employer is in arrears in respect of the Subscription Fees.
6.4. Unless otherwise provided, the Subscription Fees do not include any required taxes, which will be levied separately as required. Taxes not included on an invoice will be the responsibility of the Employer.
7. EMPLOYER ACCOUNT MANAGEMENT
7.1. The Employer agrees that it is the Employer’s sole and absolute responsibility to keep up to date, secure and confidential all of the Employer’s login and user information relating to the Employer Account.
7.2. The Employer must immediately notify the Service Provider in writing of any security breach in respect of the Employer Account that comes to the Employer ‘s attention.
7.3. The Employer is solely and absolutely responsible for any use of and activity on the Employer Account.
8. LIMITED LICENCE IN RESPECT OF THE SITE AND THE SERVICES
8.1. The Service Provider grants the Employer, the Account Administrator and each Account User a limited, non-exclusive, non-transferable licence, subject to these Terms of Service, to access and use the Site and the Services and related content solely for purposes of accessing and using the Services.
8.2. Any use of the Site or the Services other than in accordance with clause 8.1 is expressly prohibited and all other right, title, and interest in and to the Site and the Services vests in the Service Provider.
8.3. The Employer agrees to not copy, imitate, use, transmit, distribute, sell, licence, reverse-engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any part of the Site and the Services or related content, in whole or in part.
9. SUSPENSION AND CANCELLATION OF THE EMPLOYER ACCOUNT
9.1. The Service Provider may at any time, and in its sole discretion:
9.1.1. suspend, restrict, or cancel the Employer’s access to any or all of the Services; and/or
9.1.2. suspend or cancel the Employer Account if:
9.1.2.1. the Service Provider is so required by the Applicable Laws, or pursuant to any valid order issued by a court or government agency; or
9.1.2.2. the Service Provider reasonably suspects the Employer of using the Account in connection with any Prohibited Activity; or
9.1.2.3. use of the Employer Account is subject to any pending litigation, investigation, or government proceeding; or
9.1.2.4. the Service Provider determines that the Account may compromise the Service Provider’s compliance obligations in accordance with the Applicable Laws; or
9.1.2.5. third party service providers and/or licensors to the Service Provider are unable to support the Account.
9.2. On the cancellation of the Employer Account, and subject to the Applicable Laws, any Personal Information provided by the Employer will be dealt with in accordance with the Service Provider’s privacy policy as set out in ANNEXURE C.
9.3. The Employer may cancel the Employer Account at any time by initiating a cancellation of the Employer Account using the functionality provided on the Employer Account.
9.4. Cancellation of the Employer Account will only be effective if:
9.4.1. any outstanding amounts that may be owed to the Service Provider are paid by the Employer; and
9.4.2. the Employer expressly authorises the Service Provider to cancel or suspend any pending Transactions at the time of cancellation.
10. CONFIDENTIALITY
10.1. The Receiving Party is obliged to treat all of the Confidential Information as confidential.
10.2. The Receiving Party may use the Confidential Information exclusively in relation to exercising its rights or fulfilling its obligations in terms of these Terms of Service.
10.3. The Receiving Party will only disclose Confidential Information to its employees and contractors who:
10.3.1. have a need to access such Confidential Information solely for the purpose referred to in clause 10.2; and
10.3.2. have been advised of the obligations of confidentiality and are under obligations of confidentiality substantially similar to those set out in these Terms of Service.
10.4. The Receiving Party will have no obligation to retain as confidential any information which:
10.4.1. was legally in its possession or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party;
10.4.2. is, or subsequently becomes, legally and publicly available without breach of these Terms of Service;
10.4.3. is independently developed by the Receiving Party, which independent development can be shown by written evidence; or
10.4.4. is legally obtained by the Receiving Party from a third party source without any obligation of confidentiality.
10.5. Subject to the provisions of clause 10.4, the confidentiality obligations of the Receiving Party will be perpetual and will survive the termination or expiry of these Terms of Service.
10.6. The Receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides the Disclosing Party with:
10.6.1. prior written notice of such obligation; and
10.6.2. the opportunity to oppose such disclosure or obtain a protective order.
11. FORCE MAJEURE
11.1. If either Party is prevented or restricted directly from carrying out all or any of its obligations under these Terms of Service by a Force Majeure Event, this clause 11 will apply.
11.2. If either Party is prevented or delayed in the performance of any of its obligations under these Terms of Service by a Force Majeure Event, that Party will within 1 (one) Business Day of that Party becoming aware of the Force Majeure Event notify the other Party specifying the nature and extent of the circumstances giving rise to the Force Majeure Event.
11.3. The affected Party will, subject to service of the notice under clause 11.2 to clause 11.5 have no liability in respect of the performance of such of its obligations as are directly prevented by the Force Majeure Event(s) during the continuation of such event(s), and for such time after they cease as is reasonably necessary for that Party to begin re-performing the affected obligation.
11.4. The affected Party will use all reasonable endeavours both to notify the other Party of the end of the Force Majeure Event and to recommence its affected operations as soon as reasonably practicable in order for it to perform its obligations under these Terms of Service.
11.5. The affected Party will use all reasonable endeavours to bring the Force Majeure Event(s) to a close or to find a solution by which these Terms of Service may be performed despite the continuance of the Force Majeure Event.
11.6. The Parties agree that, should the Force Majeure Event last more than 6 (six) weeks, the Party who has not invoked the provisions of this clause 11 to excuse any non-performance of its obligations may terminate these Terms of Service by giving 10 (ten) days’ written notice to the other Party.
12. PRIVACY
The Service Provider’s privacy policy is set out in ANNEXURE C, and sets out the terms on which the Service Provider may collect, process and use Personal Information, as well as the Service Provider’s full cookie policy.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. The Employer acknowledges and agrees that all right, title and interest in, and to, the Service Provider Intellectual Property is proprietary to the Service Provider and will remain vested in the Service Provider at all times.
13.2. The Employer therefore unconditionally and irrevocably agrees that the Employer will not at any time or under any circumstances acquire any rights of any nature in respect of the Service Provider Intellectual Property.
14. REPRESENTATIONS AND WARRANTIES
14.1. The Service Provider makes no representations or warranties, whether express or implied, and assumes no liability or responsibility for the proper performance of the Services.
14.2. Accordingly, the Employer’s use of the Services is at the Employer’s own risk.
14.3. The Services and all the materials, data, information, software, facilities and other content are provided ‘as is’ and ‘as available’ without warranties of any kind, either expressed or implied. Specifically:
14.3.1. the Service Provider does not warrant that the functions in relation to any Service will be available, uninterrupted or error-free;
14.3.2. the Service Provider does not warrant that any defects in relation to any Service will be corrected;
14.3.3. the Service Provider does not warrant that the Services or the servers that make them available are free of viruses or other harmful components;
14.3.4. the Service Provider does not broker Transactions on behalf of the Employer or Jobseekers; and
14.3.5. all Transactions are executed automatically, and the Employer is solely responsible for determining the appropriateness of entering into any Transaction.
14.4. The Employer warrants to and in favour of the Service Provider that:
14.4.1. the Employer will not use the Services for any Prohibited Activities;
14.4.2. the Employer has the legal capacity to agree to and be bound by these Terms of Service;
14.4.3. each Account User is 18 years or older, and is formally employed or contracted by the Employer;
14.4.4. these Terms of Service constitute a contract that is valid and binding on the Employer and enforceable against the Employer by the Service Provider; and
14.4.5. the entering into and implementation of these Terms of Service by the Employer will be in full compliance with the Applicable Laws.
14.5. Each of the warranties given by the Employer will:
14.5.1. 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 these Terms of Service; and
14.5.2. continue and remain in force irrespective of whether the Employer Account is active, suspended or cancelled; and
14.5.3. be deemed to be material.
15. INDEMNITY
The Employer unconditionally and irrevocably indemnifies and holds the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind (including direct, indirect, special or consequential damages) brought by any third party (including any Jobseeker), and whether in an action based on contract, negligence or any other action, arising out of or in connection with:
15.1. any breach of these Terms of Service by the Employer, including (without limitation) the breach of any warranty given by the Employer; or
15.2. any dispute between the Employer and any Jobseeker.
16. LIMITATION OF LIABILITY, SOLE REMEDY
16.1. Subject to clause 16.2, to the extent permitted in terms of the Applicable Laws, under no circumstances whatsoever, will the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) be liable in any manner for any costs, claims, damages, awards, penalties, or other amounts (and expressly including indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind) which may be suffered or incurred by the Employer (or with which the Employer has been threatened) arising out of, whether directly or indirectly, the Employer’s use of the Services.
16.2. The limitation on the Service Provider’s liability set out in clause 16.1 will not apply in circumstances of fraud or negligence on the part of the Service Provider.
16.3. The Employer agrees that:
16.3.1. the Employer’s sole and exclusive remedy for any dispute of any nature with the Service Provider (whether in relation to the Employer’s use of the Services or otherwise) is to stop using the Services and to immediately cancel the Employer Account;
16.3.2. the Employer will have no class-action rights or claims of any nature arising out of any dispute of any nature with the Service Provider (whether in relation to the Employer’s use of the Services or otherwise).
17. NO ASSIGNMENT
The Employer will not be entitled to cede its rights or delegate its obligations in terms of these Terms of Service without the express prior written consent of the Service Provider.
18. ADDRESS FOR SERVICE
18.1. The Parties choose, as their address for service for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses in clause 1.2.
18.2. Any notice or communication required or permitted to be given in terms of this Agreement will be valid and effective only if in writing, which will include giving notice by email.
18.3. Any Party may by notice to any other Party, change the physical address chosen as its address for service or its postal address or its e-mail address, provided that the change will become effective on the 7th (seventh) Business Day from the receipt of the notice by the addressee.
18.4. Any notice to a Party:
18.4.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen in clause 18.1 to which post is delivered will be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
18.4.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen in clause 18.1 will be deemed to have been received on the day of delivery; or
18.4.3. sent by email to its chosen e-mail address stipulated in clause 18.1 will be deemed to have been received on the date of sending (unless the contrary is proved).
18.5. Regardless of anything to the contrary set out in this clause, a written notice or communication actually received by a Party will be an adequate written notice or communication to it, regardless of it not being sent to or delivered at its chosen address.
19. RELATIONSHIP BETWEEN THE PARTIES
The Parties agree that:
19.1. no Party is a partner or agent of the any other Party;
19.2. no 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, any other Party; and
19.3. these Terms of Service will not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon any Party.
20. GOVERNING LAW AND SUBMISSION TO JURISDICTION
20.1. These Terms of Service and any matter arising from these Terms of Service will be governed by and interpreted in accordance with the laws of the Republic of South Africa.
20.2. The Parties hereby consent and submit to the exclusive jurisdiction of the Western Cape High Court in respect of any litigation arising in terms of these Terms of Service, subject to the provisions of clause 20.2.
21. DISPUTE RESOLUTION
21.1. Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to:
21.1.1. the interpretation of;
21.1.2. the carrying into effect of;
21.1.3. any of the Parties’ rights and obligations arising from;
21.1.4. the termination or purported termination of or arising from the termination of; or
21.1.5. the rectification or proposed rectification of, this Agreement, or out of or pursuant to this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) will be submitted to and decided by arbitration.
21.2. That arbitration will be held:
21.2.1. with only the Parties and their representatives present;
21.2.2. at Cape Town.
21.3. It is the intention that the arbitration will, where possible, be held and concluded in 21 (twenty one) Business Days after it has been demanded.
21.4. The Parties will use their best endeavours to procure the expeditious completion of the arbitration.
21.5. The arbitration will be subject to the arbitration legislation for the time being in force in the Republic of South Africa.
21.6. The arbitrator will be an impartial admitted attorney, whether practicing or non-practicing, of not less than 10 (ten) years’ standing appointed by the Parties or, failing agreement by the Parties within 14 (fourteen) days after the arbitration has been demanded, at the request of any of the Parties will be nominated by the President for the time being of the Cape Law Society (or its successor body in the Western Cape) following which the Parties will immediately appoint such person as the arbitrator. If that person fails or refuses to make the nomination, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
21.7. The Parties will keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.
21.8. The arbitrator will be obliged to give his award in writing fully supported by reasons.
21.9. The provisions of this clause 21 are severable from the rest of this Agreement and will remain in effect even if this Agreement is terminated for any reason.
21.10. The arbitrator will have the power to give default judgement if any Party fails to make submissions on the due date and/or fails to appear at the arbitration.
21.11. The arbitrator’s award will be final and binding on the Parties.
21.12. The costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the hearing will be borne by the Parties in equal shares and will be recoverable, as costs in the cause under 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.
22. WHOLE AGREEMENT, NO AMENDMENT
22.1. These Terms of Service constitutes the whole agreement between the Parties relating to the subject matter of these Terms of Service and supersedes any other discussions, agreements and/or understandings regarding the subject matter of these Terms of Service.
22.2. No amendment or consensual cancellation of these Terms of Service, no settlement of any disputes arising under these Terms of Service and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of these Terms of Service will be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party(ies) granting such extension, waiver or relaxation).
23. AMENDMENTS
23.1. The Service Provider may amend or modify these Terms of Service by posting on the Platform, and the revised Terms of Service will be effective at such time. Specifically, and without limitation, the Service Provider will be entitled at any time:
23.1.1. to amend the eligibility criteria referred to in clause 3.1; or
23.1.2. To update, amend or change any of the available Services.
23.2. If the Employer does not agree with any such modification, the Employer must cancel the Employer Account. Any further use of the Services after such modification by the Employer will constitute full acceptance by the Employer of these Terms of Service.
24. GENERAL
24.1. Any provision in these Terms of Service which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Terms of Service will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms of Service, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
24.2. No part of these Terms of Service will constitute a stipulation in favour of any person who is not a party to these Terms of Service unless the provision in question expressly provides that it does constitute such a stipulation.
ANNEXURE A – SERVICE PROVIDER DETAILS
The following detail is required in terms of section 43 of the Electronic Communications and Transactions Act, No. 25 of 2002:
1.1. Service Provider full name and legal status:
1.1.1. Handy Cats Proprietary Limited, a private company incorporated in South Africa under the Companies Act, No. 71 of 2008.
1.2. Service Provider physical address and telephone number:
1.2.1. Physical address: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945
1.2.2. Telephone number: +27 (0)87 057 5725
1.3. Service Provider website address and email address:
1.3.1. Website: www.recruitaguide.co.za.
1.3.2. Email address: [email protected]
1.4. Membership of any self-regulatory or accreditation bodies to which the Service Provider belongs or subscribes and the contact details of that body:
1.4.1. N/A
1.5. Any code of conduct to which the Service Provider subscribes and how that code of conduct may be accessed electronically by the consumer:
1.5.1. N/A
1.6. In the case of a legal person, the Service Provider’s registration number, the names of its office bearers and its place of registration:
1.6.1. Registration number: 2017/198724/07.
1.6.2. Place of registration: South Africa
1.6.3. Director: Robert Bernatzeder.
1.7. The physical address where the Service Provider will receive legal service of documents:
1.7.1. Address for service: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945
1.8. A sufficient description of the main characteristics of the goods or services offered by the Service Provider to enable a consumer to make an informed decision on the proposed electronic transaction:
1.8.1. See clause 1.2.14 of the Terms of Service.
1.9. The full price of the goods or services, including transport costs, taxes and any other fees or costs:
1.9.1. See clause 6 of the Terms of Service.
1.10. The manner of payment:
1.10.1. See clause 6 of the Terms of Service.
1.11. Any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers:
1.11.1. See full Terms of Service.
1.12. The time within which the goods will be dispatched or delivered or with in which the services will be rendered:
1.12.1. See clause 2 of the Terms of Service.
1.13. The manner and period within which consumers can access and maintain a full record of the transaction:
1.13.1. See clause 2 of the Terms of Service.
1.14. The return, exchange and refund policy of the Service Provider:
1.14.1. N/A.
1.15. Any alternative dispute resolution code to which the Service Provider subscribes and how the wording of that code may be accessed electronically by the consumer;
1.15.1. See clause 21 of the Terms of Service.
1.16. The security procedures and privacy policy of the Service Provider in respect of payment, payment information and personal information:
1.16.1. See the Privacy Policy in ANNEXURE C to the Terms of Service.
1.17. Where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently: 1.17.1 See clause 2 of the Terms of Service.
1.18. The rights of consumers in terms of section 44, where applicable:
1.18.1. N/A.
ANNEXURE B – SUBSCRIPTION FEES
The Subscription Fees are due on the listing of a job post and are described here (https://www.recruitaguide.co.za/pricing).
ANNEXURE C – PRIVACY POLICY
Please see the privacy policy here: https://www.recruitaguide.co.za/privacy-policy
JOBSEEKER
1. INTERPRETATION AND PRELIMINARY
Unless a contrary intention clearly appears:
1.1. words importing:
1.1.1. any gender include all others;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;
1.2. the following terms have the meanings assigned to them in this clause 1.2 and related expressions will have corresponding meanings, namely:
1.2.1. “Applicable Laws” in relation to a Party, will include all and any:
1.2.1.1. statutes and subordinate legislation and common law, including without limitation:
1.2.1.1.1. the Protection of Personal Information Act, No. 4 of 2013;
1.2.1.2. regulations; and
1.2.1.3. ordinances and bylaws; and
1.2.1.4. directives, codes of practice, circulars, guidance notices, judgments and decisions of any competent authority, or any governmental, intergovernmental or supranational body, agency, department or regulatory, self regulatory or other authority or organisation, from time to time, compliance with which is mandatory for that Party;
1.2.2. “Business Day” means any day excluding Saturday, Sunday and a public holiday in the Republic of South Africa;
1.2.3. “Confidential Information” means:
1.2.3.1. any information of whatsoever nature, which has been or may be obtained by a Party from the other Party, whether in writing or in electronic form or pursuant to discussions between the Parties, or which can be obtained by examination, testing, visual inspection or analysis, including, without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, lists, price lists, studies, findings, any inventions or ideas;
1.2.3.2. analyses, concepts, compilations, studies and other material prepared by or in possession or control of a Party which contain or otherwise reflect or are generated from any such information as is specified in this definition;
1.2.3.3. any dispute arising in terms of these Terms of Service, other than the information in clause 9.4;
1.2.4. “Disclosing Party” means any Party disclosing Confidential Information;
1.2.5. “Force Majeure Event” means an event beyond the reasonable control of the affected Party which was not caused by, and could not have been reasonably planned for, or avoided by, the affected Party, including strikes, lockouts and other industrial disputes, war, riot or civil commotion;
1.2.6. “Parties” means the parties to these Terms of Service, namely the Service Provider and the Jobseeker;
1.2.7. “Personal Information” means information about an identifiable person, business, or other entity that is not de-identified, as defined in the Protection of Personal Information Act, No 4 of 2013;
1.2.8. “Platform” means the software application developed, hosted and operated by the Service Provider through which the Jobseeker can create a digital Curriculum Vitae, video biography and communicate with potential Employers;
1.2.9. “Prohibited Activities” means any activities as may be determined by the Service Provider in accordance with clause 22 from time to time;
1.2.10. “Receiving Party” means any Party receiving Confidential Information;
1.2.11. “Service Provider” means Handy Cats Proprietary Limited, with its full details as set out in ANNEXURE A;
1.2.12. “Service Provider Intellectual Property” means any and all tangible and intangible rights associated with:
1.2.12.1. names, brands, all patents, trademarks, works of authorship or creative works, images, photographs, designs, design rights, drawings, sketches, models, samples, copyright (including all copyright in any logos, devices, designs and rights in and to the software used in relation to the Platform), systems, methodologies, specifications, inventions, formulae, source codes, proprietary material, ideas, concepts, trade secrets, procedures, skills, tools, methods, techniques, rights in databases, which are held, used or accessed by the Service Provider from time to time;
1.2.12.2. any and all data or meta-data generated by the Jobseeker and/or the Service Provider in relation to their use and provision of the Services;
1.2.12.3. any software, code or programming statements and instructions comprising or forming part of the Site and/or Services, and all related documentation, technical data, instructions, information and functional specifications required for operation;
1.2.12.4. the following domain names:
1.2.12.4.1. www.recruitaguide.co.za;
1.2.12.5. the trade secret rights in relation to the Services;
1.2.12.6. the know-how regarding the Services;
1.2.12.7. the trade names and/or word “recruitaguide” or any other abbreviated form or derivative of the foregoing, used by the Service Provider from time to time, in each case, whether registered or unregistered, and including all improvements thereto from time to time;
1.2.13. “Services” means the following services offered by the Service Provider, namely:
1.2.13.1. the provision of the Platform;
1.2.14. “Site” means the website operated by the Service Provider at the address listed in clause 1.2.12.4.1, or such other address as the Service Provider may specify from time to time;
1.2.15. “Terms of Service” means these terms and conditions relating to the Services, including:
1.2.15.1. the Privacy Policy referenced in clause 11; and
1.2.15.2. all annexures and schedules;
1.2.16. “Profile” means the Jobseekers digital Curriculum Vitae and video biography uploaded by the Jobseeker on the Platform;
1.2.17. “Employer” means any potential employer who has listed a vacancy on the Platform;
1.2.18. “Jobseeker” means any Jobseeker agreeing to these Terms of Service in order to register a Jobseeker Account;
1.2.19. “Jobseeker Account” means an account established by the Jobseeker in accordance with these Terms of Service, in terms of which the Jobseeker can manage and access details of their Profile and can communicate with Employers;
1.3. reference to any legislation is to that legislation as at the date of access and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such legislation. Any reference to a particular section in any legislation is to that section as at the date of access, and as amended or re enacted from time to time and/or an equivalent measure in any legislation, provided that if as a result of such amendment, the specific requirements of a section referred to in these Terms of Service are changed, the relevant provision of these Terms of Service will be read also as if it had been amended as necessary, without the necessity for an actual amendment;
1.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, regardless that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of these Terms of Service;
1.5. when any number of days is prescribed in these Terms of Service, whether the period is to be calculated forwards or backwards, the ordinary civilian method will apply to the calculation as follows: include the first day and exclude the last day (FILO), unless the last day falls on a day that is not a Business Day, in which case the last day will be the next succeeding Business Day;
1.6. if figures are referred to in numerals and in words and if there is any conflict between the two, the words will prevail;
1.7. expressions defined in these Terms of Service will bear the same meanings in schedules or annexures to these Terms of Service which do not themselves contain their own conflicting definitions;
1.8. if any term is defined within the context of any particular clause in these Terms of Service, 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, will bear the meaning ascribed to it for all purposes in terms of these Terms of Service, regardless that the term has not been defined in this clause 1;
1.9. provisions of these Terms of Service may survive the expiration or termination of these Terms of Service if that is expressly provided for or if such survival is necessary to achieve the Parties’ express intention;
1.10. the rule of construction that a contract will be interpreted against the Party responsible for the drafting or preparation of the contract, will not apply;
1.11. any reference in these Terms of Service to a Party will include a reference to that Party’s assigns expressly permitted under these Terms of Service and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
1.12. the words “include”, “including” and “in particular” will be construed as being by way of example or emphasis only and will not be construed, nor will they take effect, as limiting the generality of any preceding word(s); and
1.13. any reference in these Terms of Service to any other agreement or document will be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented.
2. APPLICATION OF THESE TERMS OF SERVICE
These Terms of Service will be applicable and be binding on the Jobseeker for so long as the Jobseeker Account remains active, unless indicated otherwise in these Terms of Service.
3. ELIGIBILITY REGARDING THE SERVICES
3.1. To be eligible to use any Service, the Jobseeker must:
3.1.1. create and maintain the Jobseeker Account;
3.1.2. be at least 18 years old;
3.1.3. provide any information requested by the Service Provider, including any Personal Information or Confidential Information; and
3.1.4. complete any identity verification procedures prescribed by the Service Provider, to the satisfaction of the Service Provider.
3.2. Upon creation of a Jobseeker Account as contemplated in clause 3.1.1, a contract will have been formed between the Jobseeker and the Service Provider on the terms set out in these Terms of Service.
3.3. These Terms of Service will be accessible by the Jobseeker at all times through the Jobseeker Account.
3.4. The Service Provider may, in the Service Provider’s sole discretion, refuse to allow the registration of any Jobseeker Account.
3.5. Further to clause 3.1.4, the Service Provider may require the Jobseeker to undergo any identity verification procedures determined by the Service Provider in its sole discretion from time to time.
4. PROVISION OF THE SERVICES
4.1. The Services are accessible through:
4.1.1. the Site; or
4.1.2. a native software application for iOS and Android devices; or
4.1.3 such other means as the Service Provider may make available from time to time.
4.2. The Service Provider reserves the right:
4.2.1. to modify or discontinue, temporarily or permanently, all or any part of any Service, with or without notice; and/or
4.2.2. to impose limitations and/or restrictions on any Service at any time in its sole discretion; and/or
4.2.3. to deactivate or cancel any Profile relating to any Service if there is any risk of fraud or illegal activity.
4.3. The Jobseeker acknowledges that the inclusion of any hyperlinks or any advertisement of any third party on the Site or Platform does not imply endorsement by the Service Provider of their products, services, business or security practices or any association with its operators. Further, the Jobseeker acknowledges and agrees that:
4.3.1. accessing and using any third party websites, applications, products, services, and/or business, is done at the Jobseeker’s sole and exclusive risk;
4.3.2. the Service Provider has no association with any of the trademarks or brands of the service providers providing the list of available Payment Methods; and
4.3.3. the Service Provider has no association with any of the trademarks or brands of the service providers providing any advertisement.
5. USE OF THE SERVICES BY THE VISITOR
5.1. The Jobseeker undertakes to use the Services solely for its individual personal purposes, in accordance with these Terms of Service and the Applicable Laws at all times.
5.2. The Jobseeker agrees that the Jobseeker will not at any time attempt or actually (whether alone or in conjunction with any third party):
5.2.1. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any part of any Service;
5.2.2. alter, reverse-engineer, modify, circumvent, disable, amend, tamper with or change any security features of any Service;
5.2.3. infect any Service with any software, malware or code that may infect, damage, delay or impede the operation of any Service or which may intercept, alter or interfere with any data generated by or received through any Service;
5.2.4. allow any third party to use the Jobseeker Account in any way or deal with any Services in any manner other than as permitted by these Terms of Service;
5.2.5. access any account that is not the Jobseeker Account;
5.2.6. post or upload any offensive, obscene, defamatory, pornographic or otherwise illegal content on the Services (including on any communication functionality provided for in the Services from time to time); and
5.2.7. use the Services for any Prohibited Activities or in contravention of the Applicable Laws.
5.3. The Jobseeker agrees that it will be solely liable for all taxes, penalties, costs, charges or other amounts that they may incur pursuant to their use of the Services.
6. VISITOR ACCOUNT MANAGEMENT
6.1. The Jobseeker agrees that it is the Jobseeker’s sole and absolute responsibility to keep up to date, secure and confidential all of the Jobseeker’s login and user information relating to the Jobseeker Account.
6.2. The Jobseeker must immediately notify the Service Provider in writing of any security breach in respect of the Jobseeker Account that comes to the Jobseeker’s attention.
6.3. The Jobseeker is solely and absolutely responsible for any use of and activity on the Jobseeker Account.
7. LIMITED LICENCE IN RESPECT OF THE SITE AND THE SERVICES
7.1. The Service Provider grants the Jobseeker a limited, non-exclusive, non-transferable licence, subject to these Terms of Service, to access and use the Site and the Services and related content solely for purposes of accessing and using the Services.
7.2. Any use of the Site or the Services other than in accordance with clause 7.1 is expressly prohibited and all other right, title, and interest in and to the Site and the Services vests in the Service Provider.
7.3. The Jobseeker agrees to not copy, imitate, use, transmit, distribute, sell, licence, reverse-engineer, modify, publish, or participate in the transfer or sale of, create derivative works from, or in any other way exploit any part of the Site or Services or related content, in whole or in part.
8. SUSPENSION AND CANCELLATION OF VISITOR ACCOUNT
8.1. The Service Provider may at any time, and in its sole discretion:
8.1.1. suspend, restrict, or cancel the Jobseeker’s access to any or all of the Services; and/or
8.1.2. suspend or cancel the Jobseeker Account if:
8.1.2.1. the Service Provider is so required by the Applicable Laws, or pursuant to any valid order issued by a court or government agency; or
8.1.2.2. the Service Provider reasonably suspects the Jobseeker of using the Account in connection with any Prohibited Activity; or
8.1.2.3. use of the Jobseeker Account is subject to any pending litigation, investigation, or government proceeding; or
8.1.2.4. the Service Provider determines that the Jobseeker Account may compromise the Service Provider’s compliance obligations in accordance with the Applicable Laws; or
8.1.2.5. third party service providers and/or licensors to the Service Provider are unable to support the Jobseeker Account.
8.2. On the cancellation of the Jobseeker Account, and subject to the Applicable Laws, any Personal Information provided by the Jobseeker will be dealt with in accordance with the Service Provider’s privacy policy as set out in ANNEXURE B.
8.3. The Jobseeker may cancel the Jobseeker Account at any time by requesting an initiation of the Jobseeker Account using the functionality provided on the Jobseeker Account.
8.4. Cancellation of the Jobseeker Account will only be effective if the Jobseeker expressly authorises the Service Provider to cancel or suspend any pending Transactions at the time of cancellation.
9. CONFIDENTIALITY
9.1. The Receiving Party is obliged to treat all of the Confidential Information as confidential.
9.2. The Receiving Party may use the Confidential Information exclusively in relation to exercising its rights or fulfilling its obligations in terms of these Terms of Service.
9.3. The Receiving Party will only disclose Confidential Information to its employees and contractors who:
9.3.1. have a need to access such Confidential Information solely for the purpose referred to in clause 9.2; and
9.3.2. have been advised of the obligations of confidentiality and are under obligations of confidentiality substantially similar to those set out in these Terms of Service.
9.4. The Receiving Party will have no obligation to retain as confidential any information which:
9.4.1. was legally in its possession or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party;
9.4.2. is, or subsequently becomes, legally and publicly available without breach of these Terms of Service;
9.4.3. is independently developed by the Receiving Party, which independent development can be shown by written evidence; or
9.4.4. is legally obtained by the Receiving Party from a third party source without any obligation of confidentiality.
9.5. Subject to the provisions of clause 9.4, the confidentiality obligations of the Receiving Party will be perpetual and will survive the termination or expiry of these Terms of Service.
9.6. The Receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides the Disclosing Party with:
9.6.1. prior written notice of such obligation; and
9.6.2. the opportunity to oppose such disclosure or obtain a protective order.
10. FORCE MAJEURE
10.1. If either Party is prevented or restricted directly from carrying out all or any of its obligations under these Terms of Service by a Force Majeure Event, this clause 10 will apply.
10.2. If either Party is prevented or delayed in the performance of any of its obligations under these Terms of Service by a Force Majeure Event, that Party will within 1 (one) Business Day of that Party becoming aware of the Force Majeure Event notify the other Party specifying the nature and extent of the circumstances giving rise to the Force Majeure Event.
10.3. The affected Party will, subject to service of the notice under clause 10.2 to clause 10.5, have no liability in respect of the performance of such of its obligations as are directly prevented by the Force Majeure Event(s) during the continuation of such event(s), and for such time after they cease as is reasonably necessary for that Party to begin re-performing the affected obligation.
10.4. The affected Party will use all reasonable endeavours both to notify the other Party of the end of the Force Majeure Event and to recommence its affected operations as soon as reasonably practicable in order for it to perform its obligations under these Terms of Service.
10.5. The affected Party will use all reasonable endeavours to bring the Force Majeure Event(s) to a close or to find a solution by which these Terms of Service may be performed despite the continuance of the Force Majeure Event.
10.6. The Parties agree that, should the Force Majeure Event last more than 6 (six) weeks, the Party who has not invoked the provisions of this clause 10 to excuse any non-performance of its obligations may terminate these Terms of Service by giving 10 (ten) days’ written notice to the other Party.
11. PRIVACY
The Service Provider’s privacy policy is set out in ANNEXURE B, and sets out the terms on which the Service Provider may collect, process and use Personal Information, as well as the Service Provider’s full cookie policy.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. The Jobseeker acknowledges and agrees that all right, title and interest in, and to, the Service Provider Intellectual Property is proprietary to the Service Provider and will remain vested in the Service Provider at all times.
12.2. The Jobseeker therefore unconditionally and irrevocably agrees that the Jobseeker will not at any time or under any circumstances acquire any rights of any nature in respect of the Service Provider Intellectual Property.
13. REPRESENTATIONS AND WARRANTIES
13.1. The Service Provider makes no representations or warranties, whether express or implied, and assumes no liability or responsibility for the proper performance of the Services.
13.2. Accordingly, the Jobseeker’s use of the Services is at the Jobseeker’s own risk.
13.3. The Services and all the materials, data, information, software, facilities and other content are provided ‘as is’ and ‘as available’ without warranties of any kind, either expressed or implied. Specifically:
13.3.1. the Service Provider does not warrant that the functions in relation to any Service will be available, uninterrupted or error-free;
13.3.2. the Service Provider does not warrant that any defects in relation to any Service will be corrected;
13.3.3. the Service Provider does not warrant that the Services or the servers that make them available are free of viruses or other harmful components;
13.3.4. the Service Provider does not broker an employment relationship on behalf of the Jobseeker or Employers; and
13.3.5. the Jobseeker is solely responsible for determining the appropriateness of entering into any relationship with an Employer.
13.4. The Jobseeker warrant to and in favour of the Service Provider that:
13.4.1. the Jobseeker will not use the Services for any Prohibited Activities;
13.4.2. the Jobseeker has the legal capacity to agree to and be bound by these Terms of Service;
13.4.3. the Jobseeker is 18 years or older;
13.4.4. these Terms of Service constitute a contract that is valid and binding on the Jobseeker and enforceable against the Jobseeker by the Service Provider; and
13.4.5. the entering into and implementation of these Terms of Service by the Jobseeker will be in full compliance with the Applicable Laws.
13.5. Each of the warranties given by the Jobseeker will:
13.5.1. 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 these Terms of Service; and
13.5.2. continue and remain in force irrespective of whether the Jobseeker Account is active, suspended or cancelled; and
13.5.3. be deemed to be material.
14. INDEMNITY
The Jobseeker unconditionally and irrevocably indemnifies and holds the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind, (including direct, indirect, special or consequential damages) brought by any third party (including any Employer), and whether in an action based on contract, negligence or any other action, arising out of or in connection with:
14.1. any breach of these Terms of Service by the Jobseeker, including (without limitation) the breach of any warranty given by the Jobseeker; or
14.2. any dispute between the Jobseeker and any Employer.
15. LIMITATION OF LIABILITY, SOLE REMEDY
15.1. Subject to clause 15.2, to the extent permitted in terms of the Applicable Laws, under no circumstances whatsoever, will the Service Provider (including its directors, agents, contractors and service providers, in whose favour this constitutes a third party stipulation capable of acceptance in writing at any time) be liable in any manner for any costs, claims, damages, awards, penalties, or other amounts (and expressly including indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind) which may be suffered or incurred by the Jobseeker (or with which the Jobseeker has been threatened) arising out of, whether directly or indirectly, the Jobseeker’s use of the Services.
15.2. The limitation on the Service Provider’s liability set out in clause 15.1 will not apply in circumstances of fraud or negligence on the part of the Service Provider.
15.3. The Jobseeker agrees that:
15.3.1. the Jobseeker’s sole and exclusive remedy for any dispute of any nature with the Service Provider (whether in relation to the Jobseeker’s use of the Services or otherwise) is to stop using the Services and to immediately cancel the Jobseeker Account;
15.3.2. the Jobseeker will have no class-action rights or claims of any nature arising out of any dispute of any nature with the Service Provider (whether in relation to the Jobseeker’s use of the Services or otherwise).
16. NO ASSIGNMENT
The Jobseeker will not be entitled to cede its rights or delegate its obligations in terms of these Terms of Service without the express prior written consent of the Service Provider.
17. ADDRESS FOR SERVICE
17.1. The Parties choose, as their address for service for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, the addresses in clause 1.2.
17.2. Any notice or communication required or permitted to be given in terms of this Agreement will be valid and effective only if in writing, which will include giving notice by email.
17.3. Any Party may by notice to any other Party, change the physical address chosen as its address for service or its postal address or its e-mail address, provided that the change will become effective on the 7th (seventh) Business Day from the receipt of the notice by the addressee.
17.4. Any notice to a Party:
17.4.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen in clause 17.1 to which post is delivered will be deemed to have been received on the 7th (seventh) Business Day after posting (unless the contrary is proved);
17.4.2. delivered by hand to a responsible person during ordinary business hours at the physical address chosen in clause 17.1 will be deemed to have been received on the day of delivery; or
17.4.3. sent by email to its chosen e-mail address stipulated in clause 17.1 will be deemed to have been received on the date of sending (unless the contrary is proved).
17.5. Regardless of anything to the contrary set out in this clause, a written notice or communication actually received by a Party will be an adequate written notice or communication to it, regardless of it not being sent to or delivered at its chosen address.
18. RELATIONSHIP BETWEEN THE PARTIES
The Parties agree that:
18.1. no Party is a partner or agent of the any other Party;
18.2. no 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, any other Party; and
18.3. these Terms of Service will not be interpreted or construed to create an association, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon any Party.
19. GOVERNING LAW AND SUBMISSION TO JURISDICTION
19.1. These Terms of Service and any matter arising from these Terms of Service will be governed by and interpreted in accordance with the laws of the Republic of South Africa.
19.2. The Parties hereby consent and submit to the exclusive jurisdiction of the Western Cape High Court in respect of any litigation arising in terms of these Terms of Service, subject to the provisions of clause 20.
20. DISPUTE RESOLUTION
20.1. Other than in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to:
20.1.1. the interpretation of;
20.1.2. the carrying into effect of;
20.1.3. any of the Parties’ rights and obligations arising from;
20.1.4. the termination or purported termination of or arising from the termination of; or
20.1.5. the rectification or proposed rectification of, this Agreement, or out of or pursuant to this Agreement (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction) will be submitted to and decided by arbitration.
20.2. That arbitration will be held:
20.2.1. with only the Parties and their representatives present;
20.2.2. at Cape Town.
20.3. It is the intention that the arbitration will, where possible, be held and concluded in 21 (twenty one) Business Days after it has been demanded. The Parties will use their best endeavours to procure the expeditious completion of the arbitration.
20.4. The arbitration will be subject to the arbitration legislation for the time being in force in the Republic of South Africa.
20.5. The arbitrator will be an impartial admitted attorney, whether practising or non-practising, of not less than 10 (ten) years’ standing appointed by the Parties or, failing agreement by the Parties within 14 (fourteen) days after the arbitration has been demanded, at the request of any of the Parties will be nominated by the President for the time being of the Cape Law Society (or its successor body in the Western Cape) following which the Parties will immediately appoint such person as the arbitrator. If that person fails or refuses to make the nomination, any Party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
20.6. The Parties will keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.
20.7. The arbitrator will be obliged to give his award in writing fully supported by reasons.
20.8. The provisions of this clause 20 are severable from the rest of this Agreement and will remain in effect even if this Agreement is terminated for any reason.
20.9. The arbitrator will have the power to give default judgement if any Party fails to make submissions on the due date and/or fails to appear at the arbitration.
20.10. The arbitrator’s award will be final and binding on the Parties.
20.11. The costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the hearing will be borne by the Parties in equal shares and will be recoverable, as costs in the cause under 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.
21. WHOLE AGREEMENT, NO AMENDMENT
21.1. These Terms of Service constitutes the whole agreement between the Parties relating to the subject matter of these Terms of Service and supersedes any other discussions, agreements and/or understandings regarding the subject matter of these Terms of Service.
21.2. No amendment or consensual cancellation of these Terms of Service, no settlement of any disputes arising under these Terms of Service and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provisions or terms of these Terms of Service will be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party(ies) granting such extension, waiver or relaxation).
22. AMENDMENTS
22.1. The Service Provider may amend or modify these Terms of Service by posting on the Platform, and the revised Terms of Service will be effective at such time. Specifically, and without limitation, the Service Provider will be entitled at any time:
22.1.1. to amend the eligibility criteria referred to in clause 3.1; or
22.1.2. to update, amend or change any of the available Services.
22.2. If the Jobseeker does not agree with any such modification, the Jobseeker must cancel the Jobseeker Account. Any further use of the Services after such modification by the Jobseeker will constitute full acceptance by the Jobseeker of these Terms of Service.
23. GENERAL
23.1. Any provision in these Terms of Service which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Terms of Service will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Terms of Service, without invalidating the remaining provisions of these Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
23.2. No part of these Terms of Service will constitute a stipulation in favour of any person who is not a party to these Terms of Service unless the provision in question expressly provides that it does constitute such a stipulation.
ANNEXURE A – SERVICE PROVIDER
The following detail is required in terms of section 43 of the Electronic Communications and Transactions Act, No. 25 of 2002:
1.1. Service Provider full name and legal status:
1.1.1. Handy Cats Proprietary Limited, a private company incorporated in South Africa under the Companies Act, No. 71 of 2008.
1.2. Service Provider physical address and telephone number:
1.2.1. Physical address: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945
1.2.2. Telephone number: +27 (0)87 057 5725
1.3. Service Provider website address and email address:
1.3.1. Website: www.recruitaguide.co.za.
1.3.2. Email address: [email protected]
1.4. Membership of any self-regulatory or accreditation bodies to which the Service Provider belongs or subscribes and the contact details of that body:
1.4.1. N/A
1.5. Any code of conduct to which the Service Provider subscribes and how that code of conduct may be accessed electronically by the consumer:
1.5.1. N/A
1.6. In the case of a legal person, the Service Provider’s registration number, the names of its office bearers and its place of registration:
1.6.1. Registration number: 2017/198724/07.
1.6.2. Place of registration: South Africa.
1.6.3. Director: Robert Bernatzeder.
1.7. The physical address where the Service Provider will receive legal service of documents:
1.7.1. Address for service: Unit 4&5 Rose Mews, 18 Rose Avenue, Tokai, Cape Town, 7945
1.7.2. A sufficient description of the main characteristics of the goods or services offered by the Service Provider to enable a consumer to make an informed decision on the proposed electronic transaction:
1.7.3. See clause 1.2.13 of the Terms of Service.
1.8. The full price of the goods or services, including transport costs, taxes and any other fees or costs:
1.8.1. N/A.
1.9. The manner of payment:
1.9.1. N/A.
1.10. Any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers:
1.10.1. See clauses 3.2 and 3.3 of the Terms of Service.
1.11. The time within which the goods will be dispatched or delivered or with in which the services will be rendered:
1.11.1. See clause 2 of the Terms of Service.
1.12. The manner and period within which consumers can access and maintain a full record of the transaction:
1.12.1. See clause 2 of the Terms of Service.
1.13. The return, exchange and refund policy of the Service Provider:
1.13.1. N/A.
1.14. Any alternative dispute resolution code to which that the Service Provider subscribes and how the wording of that code may be accessed electronically by the consumer:
1.14.1. See clause 20 of the Terms of Service.
1.15. The security procedures and privacy policy of the Service Provider in respect of payment, payment information and personal information:
1.15.1. See the Privacy Policy in ANNEXURE B to the Terms of Service.
1.16. Where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently:
1.16.1. See clause 2 of the Terms of Service.
1.17. The rights of consumers in terms of section 44, where applicable:
1.17.1. N/A.
ANNEXURE B – PRIVACY POLICY
Please see the Privacy Policy here: https://www.recruitaguide.co.za/privacy-policy