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These terms and conditions (“Terms and Conditions”) govern the relationship between Pretire and the Candidate ("Agreement").
1. INTERPRETATION
1.1. In this Agreement, unless the context clearly indicates a contrary intention, the following words will have the following meanings and cognate expressions will have corresponding meanings:
1.1.1. “App” means the mobile application utilised by the Client and the Candidate known as “PRETIRE”;
1.1.2. "Candidate" means any person(s) Introduced by Pretire to the Client for the purpose of rendering the Services to the Client;
1.1.3. "Client" means the person, including any juristic person (including such juristic person’s affiliates, subsidiaries, associated companies, firms and associations (if any)), who makes use of the placement services provided by Pretire;
1.1.4. “Contract Period” means –
1.1.4.1. the entire contract period as regards a Fixed Term Contract Placement in accordance with clause 5.1 and/or an Independent Contract Placement in accordance with clause 5.2; or
1.1.4.2. as regards a Permanent Placement in accordance with clause 5.3, the first 12 (twelve) months from the date on which the Candidate is to commence employment with the Client (regardless of any probation period);
1.1.5. “CPI” means the weighted average of the Consumer Price Index in respect of all metropolitan areas within Australia and for all items as published by the Australian Bureau of Statistics or its successors from time to time;
1.1.6. “CV” means the Candidate’s curriculum vitae, which shall contain the following mandatory information:
1.1.6.1. Personal details (full name, age, identity number, nationality);
1.1.6.2. Photograph;
1.1.6.3. Contact details (physical address, home and/or cellphone number, email address);
1.1.6.4. Details and history of area/field of expertise;
1.1.6.5. Number of years of work experience;
1.1.6.6. Qualifications, details of prior employment and experience; and
1.1.6.7. Memberships of professional associations (if any);
1.1.7. “Effective Date” means the day on which the Client first communicated with the Candidate by means of the Introduction;
1.1.8. “Employment” means any form of employment whether it be in the form of an appointment, consultancy relationship, use or otherwise (including such forms of employment contemplated in clause 5 below), by the Client of a Candidate, in terms of which the Candidate renders the Services and “Employs” shall have a corresponding meaning;
1.1.9. “Introduction” means the introduction of a Candidate to the Client, which introduction is facilitated and/or brought into effect by the Client’s use of this website and/or App, and “Introduce” and “Introduced” shall have a corresponding meaning;
1.1.10. "Parties" means Pretire and the Candidate collectively and "Party" shall mean either one of them;
1.1.11. “Pretire” means Pretire Proprietary Limited (ACN 638 730 211) in the Commonwealth of Australia;
1.1.12. “Selected” means the selection process to which a Candidate, who has been successful in the selection process (clause 4 below), shall be subject prior to his/her Introduction;
1.1.13. "Services" means the work to be performed by the Candidate to the Client as agreed between them; and
1.1.14. "GST" means goods and services tax payable in terms of the Goods and Services Tax Act of 1999, as amended.
2. BACKGROUND
2.1. Pretire is a web-based and/or App-based recruitment agency that specializes in matching highly-experienced Candidates to Clients that offer Candidates Employment for purposes of rendering the Services.
2.2. Pretire lists Candidates on its website/App that are reasonably regarded as industry leaders within the industry/field of expertise in which they operate. Pretire also has established a sought-after Client base whereby the opportunity exists to create a working relationship between Candidates and Clients.
2.3. The purpose of this Agreement is to provide the terms and conditions to which the selection and Employment of Candidates by Clients is subject.
2.4. Nothing in this Agreement shall be construed between the Parties as constituting the relationship of partnership or employer and employee between the parties. The Parties hereby expressly acknowledge and agree that notwithstanding any interpretation of this Agreement, directly or indirectly or in any manner whatsoever, it is not the intent of the Parties to enter into any agreement that may create an employer-employee relationship, whether temporary or otherwise, or any other relationship that may fall within the ambit of the Fair Work Act of 2009, the Fair Work Regulations of 2009 or any other act or regulation that is applicable to issues of employment.
3. THE PLACEMENT SERVICES
Pretire shall provide the web – based and/or App – based service of facilitating the Introduction of a Candidate to the Client, and the Candidate accepts the provision of such services provided by Pretire.
4. SELECTION OF CANDIDATES
4.1. Pretire shall not be obligated to list a Candidate on this website and/or App until such time as a Candidate has:
4.1.1. furnished Pretire with his/her CV; and
4.1.2. been Selected.
4.2. The selection process shall be outsourced to an entity (“Selection Panel”), which Pretire in its sole discretion deems to be reasonably competent to perform such function.
4.3. The Selection Panel shall conduct a reference check on the Candidate (and to which the Candidate consents), which reference check shall include, amongst others, whether a Candidate:
4.3.1. has a criminal record;
4.3.2. has an adverse credit rating;
4.3.3. is a person who is ineligible or disqualified to be a director or other office holder pursuant to the Corporations Act 2001 (as amended); and/or
4.3.4. has been removed as a director or other office holder pursuant to the Corporations Act 2001 (as amended).
4.4. The Selection Panel, in consultation with Pretire, may in their sole discretion determine such additional criteria as may be necessary to ensure that the Selected Candidates are reasonably reliable, competent and possess the necessary experience to be considered within the caliber of Candidates that Pretire wish to list on its website and/or App.
4.5. For the avoidance of doubt, only Candidates, which have been approved by the Selection Panel will be listed on Pretire’s website and/or App.
4.6. In order to safeguard the confidentiality of Candidates, the information obtained from the reference check will only be made available upon written request by Client prior to Employment, subject to a Candidate giving his/her consent thereto.
5. PLACEMENTS
5.1. Fixed Term Contract Placements:
Should a Candidate be Introduced to a Client and the Client Employs such Candidate on a fixed term contractual basis, the Candidate acknowledges that the following shall apply:
5.1.1. the Client shall pay to Pretire, in consideration for the Contract Period, a monthly fixed term contract placement fee, which shall be in total an amount equal to 15% of the Candidate's monthly gross contract cost to Client for the Contract Period ("Fixed Term Placement Fee");
5.1.2. the Client shall, without delay, notify Pretire in writing of any renewals and/or extensions of the Contract Period and the Client shall pay to Pretire the fee recorded in clause 5.1.1 in respect of any extended or renewed period;
5.1.3. should the Client enter into any new fixed term contracts with the Candidate within a period of 12 months from expiry of the Contract Period, or any renewals/extensions thereof, the Client shall pay to Pretire the fees recorded in clause 5.1.1 for the Contract Period of such new fixed term contract and the provisions of clause 5.1.2 shall apply mutatis mutandis to the extension/renewal of the Contract Period of the new fixed term contract;
5.1.4. the Fixed Term Placement Fee shall be paid by the Client to Pretire on the presentation of an invoice by Pretire to the Client, which shall be payable by the Client to Pretire within 7 days of the presentation of such invoice; and
5.1.5. in the event that a Candidate is employed by the Client on a permanent basis in accordance with the terms of clause 5.3, either during the currency of the Contract Period or within a period of 12 months from the expiry of the Contract Period or termination of the fixed term contract, as applicable, then a Permanent Placement Fee shall become due and payable by the Client to Pretire in addition to the Fixed Term Placement Fee in accordance with clause 5.3.1 below and the remainder of the provisions of clause 5.3 shall apply accordingly.
5.2. Independent Contract Placements:
Should a Candidate be Introduced to a Client and the Client Employs such Candidate on an independent contractual basis, the following shall apply:
5.2.1. placement fees shall be paid by the Client to Pretire only for the time worked by the Candidate in rendering the Services during the Contract Period and any renewals and/or extensions thereof and the Client shall pay Pretire 15% of the Candidate’s gross independent contract cost to Client for such Contract Period;
5.2.2. any other charges relating to overtime, weekend, public holiday work, travel, and/or board and lodging, will be in accordance with the standard charges, as agreed to between Client and Candidate, as determined from time to time;
5.2.3. during the period over which the Candidate is providing independent contractual services to the Client, the Candidate will be, for all intents and purposes, under the direct control and supervision of the Client, and it shall be the responsibility of the Client to ensure that the Candidate complies with all the requirements and instructions given by the Client to the Candidate;
5.2.4. in the event that the Candidate is offered and accepts any further independent contractual work whatsoever from the Client, either during the tenure of the Contract Period or within a period of 12 months following expiry of the Contract Period, or any renewals/extensions thereof on an independent contractual basis in terms of this clause 5.2, the Candidate shall, without delay, notify Pretire of such renewals/extensions and Pretire shall be entitled to charge the Client a fee for each additional independent contractual appointment of the Candidate by the Client at an amount equal to 15% of the Candidate's gross independent contract cost to Client package during such Contract Period and any renewals and/or extensions thereof;
5.2.5. in the event that a Candidate is employed by the Client on a permanent basis in accordance with the terms of clause 5.3 either during the tenure of the Contract Period or within a period of 12 months from the expiry of the Contract Period or termination of the independent contract placement, as applicable, then the Client shall, in addition to any other charges payable by the Client to Pretire in terms of this clause 5.2, be charged a permanent placement fee which shall be equal to 15% of the Candidate's gross cost to Client for the Contract Period applicable to Permanent Placements (provided for in clause 5.3); and
5.2.6. an invoice for the placement fees due to Pretire in terms of this clause 5.2 will be rendered to the Client on a monthly basis, and such placement fees and/or any other fees chargeable in terms of this clause 5.2, shall be payable by the Client to Pretire on presentation of an invoice by Pretire to the Client within 72 hours of the termination date, being the date referred to as such between the Client and Candidate in their concluded written agreement or otherwise and it shall be the responsibility of the Candidate to notify Pretire in writing of the termination date.
5.3. Permanent Placements:
Should a Candidate be Introduced to the Client and the Client Employs such a Candidate on a permanent basis (regardless of any probation period), the following shall apply:
5.3.1. the Client shall pay to Pretire a once-off permanent placement fee which shall be an amount equal to 15% of the Candidate’s gross contract cost to Client for the Contract Period ("Permanent Placement Fee"); and
5.3.2. the Permanent Placement Fee shall be payable by the Client to Pretire on the presentation of an invoice by Pretire to the Client within 7 days of the presentation of such invoice;
5.4. In the event of the Client having previously received a curriculum vitae of a Candidate for any reason whatsoever from such Candidate or another third party source, and for whatever reason makes use of Pretire's Introduction services as contemplated in this Agreement to facilitate the successful Employment of such Candidate with the Client, a placement fee shall be payable by the Client to Pretire calculated similarly in accordance with the provisions of clauses 5.1, 5.2 and 5.3 as the case may be.
6. PAYMENT OF PLACEMENT FEES
6.1. Unless otherwise stated, all amounts payable by a Client to Pretire are exclusive of GST, and a Client shall be liable to pay GST at the prevailing rate to Pretire in respect of any such amount payable on representation of a GST invoice by Pretire to the Client.
6.2. Any amounts payable by a Client to a Candidate for the Services shall be paid by the Client to Pretire which amount shall include, in addition to the amount owed to the Candidate, Pretire’s placement fee. Pretire shall be entitled to deduct, as a first charge, the placement fees (described above) due and payable to Pretire in accordance with this Agreement and, thereafter, pay the balance to the nominated bank account of the Candidate, provided that the Candidate has invoiced Pretire for such portion of the amount payable to them by the Client.
6.3. Notwithstanding any provision of this Agreement to the contrary, there shall be no obligation on Pretire to make any payments whatsoever to a Candidate for the Services rendered by them until such time as Pretire has first received payment from the Client in respect of the Candidate concerned.
6.4. All payments made by a Client to Pretire shall be made in cash, without deduction or set-off into the bank account nominated by Pretire in writing from time to time.
6.5. The Client shall not be entitled to withhold, set-off or defer any payment due to Pretire in terms of this Agreement for any reason whatsoever.
6.6. A certificate signed by any director of Pretire (whose appointment and authority it shall not be necessary to prove) specifying the amount due and payable by the Client shall be full and sufficient proof of the amount due and payable to Pretire in terms of this Agreement.
7. NON CIRCUMVENTION:
With effect from the Effective Date and for the maximum duration permitted at law of 2 years, 1 year or 6 months thereafter, the Candidate irrevocably and unconditionally undertakes in favour of Pretire, its successors in title and assigns, that it shall not, either alone or jointly, directly or indirectly, circumvent Pretire in concluding any employment contract, of any nature whatsoever, with the Client (including, but not limited to, its directors, shareholders, agents, consultants, employees, subsidiaries, holding company, or any of its affiliates) pursuant to the Effective Date.
8. OBLIGATIONS OF THE PARTIES
8.1. For the duration of this Agreement, Pretire undertakes to the Candidate to:
8.1.1. take all reasonable steps to ensure that the website and App are accessible at all times;
8.1.2. take all reasonable steps to restore access to the website and App in the even that access thereto is disrupted for whatever reason;
8.1.3. keep its website and App professional and ensure that the website and App are regularly updated, thereby using its best endeavours to market the Candidate;
8.1.4. take all reasonable steps to refer all enquiries from Clients (if any) in respect of a specific Candidate to the specific Candidate without delay;
8.1.5. act in good faith towards the Candidate and shall at all times uphold the integrity and ethics of the Pretire; and
8.1.6. continue to establish and maintain good working relationships with Clients;
8.1.7. timeously invoice the Client for the applicable fee owing and payable to Pretire; and
8.1.8. provide the Client with information obtained from the reference check, upon written request by Client at the time of Placement, subject to the Candidate giving Pretire his/her consent thereto.
8.2. For the duration of the Agreement, the Candidate undertakes and irrevocably, and unconditionally warrants in favour of Pretire to:
8.2.1. have the necessary skills and capacity to carry out the Employment;
8.2.2. act in the utmost good faith by furnishing Pretire with a reliable and truthful CV;
8.2.3. contact Pretire immediately should the Client offer the Candidate Employment;
8.2.4. forthwith submit the contract of Employment to Pretire, or if no such written contract is in place, the terms agreed to between the Client and the Candidate;
8.2.5. participate in all interviews and/or conference calls and/or any other form of communication as is reasonably required by the Client to evaluate the Candidate;
8.2.6. carry out and perform his/her obligations for the duration of the contract of Employment diligently, timeously, and with the proper skill and exercising the due care;
8.2.7. notify Pretire in writing of any complaints, of any nature however so arising, in respect of a Client to which it has been Introduced as soon as reasonably possible; and
8.2.8. forthwith notify Pretire in writing upon early cancellation of a Candidate’s Employment and submit reasons for such early cancellation.
9. NO PARTNERSHIP, JOINT VENTURE OR AGENCY
Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership, joint venture or agency between the Parties hereto and neither Party shall have the authority to bind the other or to contract in the name of the other, or create a liability against the other in any way or for any purpose.
10. NO WARRANTY AND INDEMNITY
10.1. Pretire accepts in good faith that details and information supplied by the Candidate to it are true and correct and therefore does not warrant or represent to the Client that the Candidate is fit for the specific purpose for which the Client has appointed the Candidate, and Pretire shall not be responsible for any errors, omission or misrepresentations on behalf of the Candidate, or for any claims of whatsoever nature arising in this regard.
10.2. The Candidate accepts that his/her Contract of Employment with the Client is separate and divisible from this Agreement and accordingly Pretire cannot give any warranties, nor can Pretire be held responsible for any damages whatsoever, howsoever arising from any actions of Clients facilitated through the Introduction. The Candidate indemnifies and holds Pretire harmless against any loss, damage, liability, claim, expense or penalty whatsoever sustained by the Client in this regard.
11. ARBITRATION
11.1. Should any dispute arise between the Parties to this Agreement in regard to:
11.1.1. the interpretation of; or
11.1.2. the carrying into effect of; or
11.1.3. any of the Parties rights and obligations in terms of this Agreement; or
11.1.4. the termination of or arising from the termination of; or
11.1.5. the rectification of this Agreement,
then the dispute shall be submitted to and decided by arbitration.
11.2. The arbitration shall be held:
11.2.1. In the metropolitan area of Perth in the State of Western Australia;
11.2.2. with only the Parties and their representatives present thereat;
11.2.3. otherwise in terms of the Commercial Arbitration Act, 2012, it being the intention of that the arbitration shall, where possible, be held and concluded within 21 working days after it has been demanded.
11.3. The arbitrator shall be, if the matter in dispute is principally:
11.3.1. a legal matter, a practicing attorney specializing in commercial and company law of no less than 20 years standing or a practicing senior counsel (advocate);
11.3.2. an accounting matter, a practicing chartered account of not less than 10 years standing;
11.3.3. any other matter, any independent person agreed to between the Parties.
11.4. Should the Parties fail to agree on an arbitrator within 12 days after the arbitration has been demanded then the arbitrator shall be nominated by the Chairman for the time being of the Cape Bar Council at the request of either party.
11.5. Should the Parties fail to agree whether dispute is of a legal, accounting or other nature within 7 days after the arbitration has been demanded then it shall be considered a matter as referred to in clause 11.3.3 above.
11.6. The arbitrator shall have the fullest and freest discretion with regard to the proceedings and his award shall be final and binding on the Parties to the dispute. Furthermore, the arbitrator:
11.6.1. may dispense wholly, or in part, with formal submissions or pleadings;
11.6.2. shall determine the applicable procedure;
11.6.3. shall not be bound by strict rules or evidence;
11.6.4. shall take into account the practicality or otherwise of ordering the continuance of illegal relationship between the Parties; and
11.6.5. shall include such order as to costs as he deems just and the Parties shall be entitled to have the award made an order of any court of competent jurisdiction.
11.7. Anything herein contained or implied shall not preclude any Party from applying to court for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the Arbitrator hereunder.
11.8. The provisions of this clause 11 are severable from the rest of this Agreement and remain in effect despite the termination or invalidity for any reason of this Agreement or any part thereof.
11.9. Subject to the preceding provisions of this clause 11, the Parties hereby consent to the jurisdicrtion of the relevant High Court of South Africa having jurisdiction.
12. JURISDICTION
These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the State of Western Australia and where applicable the laws of the Commonwealth of Australia. Each Party agrees to submit to the jurisdiction of the Courts of the State of Western Australia and if applicable the Commonwealth of Australia.
13. BREACH
If any Party (“Defaulting Party”) commits a breach of this Agreement and/or fails to comply with any of the provisions hereof, then the other Party shall be entitled to give the Defaulting Party 7 days’ notice in writing to remedy such beach and/or failure and if the Defaulting Party fails to comply with such notice, then the other Party shall forthwith be entitled, but not obliged, without prejudice to any other rights or remedies which the other Party may have in law or in terms of this Agreement, including the right to claim damages:
13.1. to cancel this Agreement; or
13.2. to claim immediate performance and/or payment of all the Defaulting Party’s obligations in terms hereof.
14. GENERAL PROVISIONS
14.1. Circumstances beyond the control of Pretire shall be sufficient excuse for any delay or suspension in the providing of services by Pretire to the Candidate.
14.2. This Agreement is personal to the Parties. Accordingly, no Party may cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Parties.
14.3. Any document prepared by Pretire remains its exclusive property and any information relating to any Candidate shall remain confidential and shall not be passed on to a third party.
14.4. In the event of the Client forwarding details of the Candidate to any other company, subsidiary, associate company or third party, within 12 months after the Introduction, who in turn Employs the Candidate in any way whatsoever, the Client shall be liable for an applicable placement fee as if the Client himself had employed the Candidate.
14.5. No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.
14.6. These Terms and Conditions contains the entire agreement between the Parties and no Party shall be bound by any undertakings representations, warranties, promises or the like not recorded in this Agreement.
14.7. No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice or preclude the Party granting any such indulgence, leniency or extension of time from exercising any of its rights in the future.
14.8. All terms and provisions of this Agreement are deemed to be independent of each other and accordingly, if any term is found to be invalid, unlawful or unenforceable, such term or provision shall be deemed to be pro non scripto and the remainder of the Agreement shall continue to be of full force and effect.
1. INTERPRETATION
1.1. In this Agreement, unless the context clearly indicates a contrary intention, the following words will have the following meanings and cognate expressions will have corresponding meanings:
1.1.1. “App” means the mobile application utilised by the Client and the Candidate known as “PRETIRE”;
1.1.2. "Candidate" means any person(s) Introduced by Pretire to the Client for the purpose of rendering the Services to the Client;
1.1.3. "Client" means the person, including any juristic person (including such juristic person’s affiliates, subsidiaries, associated companies, firms and associations (if any)), who makes use of the placement services provided by Pretire;
1.1.4. “Contract Period” means –
1.1.4.1. the entire contract period as regards a Fixed Term Contract Placement in accordance with clause 5.1 and/or an Independent Contract Placement in accordance with clause 5.2; or
1.1.4.2. as regards a Permanent Placement in accordance with clause 5.3, the first 12 (twelve) months from the date on which the Candidate is to commence employment with the Client (regardless of any probation period);
1.1.5. “CPI” means the weighted average of the Consumer Price Index in respect of all metropolitan areas within South Africa and for all items as published by Statistics South Africa or its successors from time to time;
1.1.6. “CV” means the Candidate’s curriculum vitae, which shall contain the following mandatory information:
1.1.6.1. Personal details (full name, age, identity number, nationality);
1.1.6.2. Photograph;
1.1.6.3. Contact details (physical address, home and/or cellphone number, email address);
1.1.6.4. Details and history of area/field of expertise;
1.1.6.5. Number of years of work experience; Qualifications, details of prior employment and experience; and
1.1.1.1. Memberships of professional associations (if any);
1.1.2. “Effective Date” means the day on which the Client first communicated with the Candidate by means of the Introduction;
1.1.3. “Employment” means any form of employment whether it be in the form of an appointment, consultancy relationship, use or otherwise (including such forms of employment contemplated in clause 5 below), by the Client of a Candidate, in terms of which the Candidate renders the Services and “Employs” shall have a corresponding meaning;
1.1.4. “Introduction” means the introduction of a Candidate to the Client, which introduction is facilitated and/or brought into effect by the Client’s use of this website and/or App, and “Introduce” and “Introduced” shall have a corresponding meaning;
1.1.5. "Parties" means Pretire and the Candidate collectively and "Party" shall mean either one of them;
1.1.6. “Pretire” means Pretire Proprietary Limited (Registration Number: 2017/331912/07);
1.1.7. “Selected” means the selection process to which a Candidate, who has been successful in the selection process (clause 4 below), shall be subject prior to his/her Introduction;
1.1.8. "Services" means the work to be performed by the Candidate to the Client as agreed between them; and
1.1.9. "VAT" means value-added tax payable in terms of the Value-Added Tax Act, No 89 of 1991, as amended.
2. BACKGROUND
2.1. Pretire is a web-based and/or App-based recruitment agency that specializes in matching highly-experienced Candidates to Clients that offer Candidates Employment for purposes of rendering the Services.
2.2. Pretire lists Candidates on its website/App that are reasonably regarded as industry leaders within the industry/field of expertise in which they operate. Pretire also has established a sought-after Client base whereby the opportunity exists to create a working relationship between Candidates and Clients.
2.3. The purpose of this Agreement is to provide the terms and conditions to which the selection and Employment of Candidates by Clients is subject.
2.4. Nothing in this Agreement shall be construed between the Parties as constituting employment service or temporary employment service as contemplated in section 198 of the Labour Relations Act, 55 of 1995, or any other applicable statute or law. The Parties hereby expressly acknowledge and agree that notwithstanding any interpretation of this Agreement, directly or indirectly or in any manner whatsoever, it is not the intent of the Parties to enter into any agreement that may create an employer-employee relationship, whether temporary or otherwise, or any other relationship that may fall within the ambit of the Labour Relations Act, the Basic Conditions of Employment Act or any other act or regulation that is applicable to issues of employment.
3. THE PLACEMENT SERVICES
Pretire shall provide the web – based and/or App – based service of facilitating the Introduction of a Candidate to the Client, and the Candidate accepts the provision of such services provided by Pretire.
4. SELECTION OF CANDIDATES
4.1. Pretire shall not be obligated to list a Candidate on this website and/or App until such time as a Candidate has:
4.1.1. furnished Pretire with his/her CV; and
4.1.2. been Selected.
4.2. The selection process shall be outsourced to an entity (“Selection Panel”), which Pretire in its sole discretion deems to be reasonably competent to perform such function.
4.3. The Selection Panel shall conduct a reference check on the Candidate (and to which the Candidate consents), which reference check shall include, amongst others, whether a Candidate:
4.3.1. has a criminal record;
4.3.2. has an adverse credit rating;
4.3.3. is a person who is ineligible or disqualified to be a director or prescribed officer in terms of section 69 of the Companies Act No. 71 of 2008 (as amended); and/or
4.3.4. has been removed as a director in accordance with section 71 of the Companies Act No 71 of 2008 (as amended).
4.4. The Selection Panel, in consultation with Pretire, may in their sole discretion determine such additional criteria as may be necessary to ensure that the Selected Candidates are reasonably reliable, competent and possess the necessary experience to be considered within the caliber of Candidates that Pretire wish to list on its website and/or App.
4.5. For the avoidance of doubt, only Candidates, which have been approved by the Selection Panel will be listed on Pretire’s website and/or App.
4.6. In order to safeguard the confidentiality of Candidates, the information obtained from the reference check will only be made available upon written request by Client prior to Employment, subject to a Candidate giving his/her consent thereto.
5. PLACEMENTS
5.1. Fixed Term Contract Placements:
Should a Candidate be Introduced to a Client and the Client Employs such Candidate on a fixed term contractual basis, the Candidate acknowledges that the following shall apply:
5.1.1. the Client shall pay to Pretire, in consideration for the Contract Period, a monthly fixed term contract placement fee, which shall be in total an amount equal to 15% of the Candidate's monthly gross contract cost to Client for the Contract Period ("Fixed Term Placement Fee");
5.1.2. the Client shall, without delay, notify Pretire in writing of any renewals and/or extensions of the Contract Period and the Client shall pay to Pretire the fee recorded in clause 5.1.1 in respect of any extended or renewed period;
5.1.3. should the Client enter into any new fixed term contracts with the Candidate within a period of 12 months from expiry of the Contract Period, or any renewals/extensions thereof, the Client shall pay to Pretire the fees recorded in clause 5.1.1 for the Contract Period of such new fixed term contract and the provisions of clause 5.1.2 shall apply mutatis mutandis to the extension/renewal of the Contract Period of the new fixed term contract;
5.1.4. the Fixed Term Placement Fee shall be paid by the Client to Pretire on the presentation of an invoice by Pretire to the Client, which shall be payable by the Client to Pretire within 7 days of the presentation of such invoice; and
5.1.5. in the event that a Candidate is employed by the Client on a permanent basis in accordance with the terms of clause 5.3, either during the currency of the Contract Period or within a period of 12 months from the expiry of the Contract Period or termination of the fixed term contract, as applicable, then a Permanent Placement Fee shall become due and payable by the Client to Pretire in addition to the Fixed Term Placement Fee in accordance with clause 5.3.1 below and the remainder of the provisions of clause 5.3 shall apply accordingly.
5.2. Independent Contract Placements:
Should a Candidate be Introduced to a Client and the Client Employs such Candidate on an independent contractual basis, the following shall apply:
5.2.1. placement fees shall be paid by the Client to Pretire only for the time worked by the Candidate in rendering the Services during the Contract Period and any renewals and/or extensions thereof and the Client shall pay Pretire 15% of the Candidate’s gross independent contract cost to Client for such Contract Period;
5.2.2. any other charges relating to overtime, weekend, public holiday work, travel, and/or board and lodging, will be in accordance with the standard charges, as agreed to between Client and Candidate, as determined from time to time;
5.2.3. independent contractual services to the Client, the Candidate will be, for all intents and purposes, under the direct control and supervision of the Client, and it shall be the responsibility of the Client to ensure that the Candidate complies with all the requirements and instructions given by the Client to the Candidate;
5.2.4. in the event that the Candidate is offered and accepts any further independent contractual work whatsoever from the Client, either during the tenure of the Contract Period or within a period of 12 months following expiry of the Contract Period, or any renewals/extensions thereof on an independent contractual basis in terms of this clause 5.2, the Candidate shall, without delay, notify Pretire of such renewals/extensions and Pretire shall be entitled to charge the Client a fee for each additional independent contractual appointment of the Candidate by the Client at an amount equal to 15% of the Candidate's gross independent contract cost to Client package during such Contract Period and any renewals and/or extensions thereof;
5.2.5. in the event that a Candidate is employed by the Client on a permanent basis in accordance with the terms of clause 5.3 either during the tenure of the Contract Period or within a period of 12 months from the expiry of the Contract Period or termination of the independent contract placement, as applicable, then the Client shall, in addition to any other charges payable by the Client to Pretire in terms of this clause 5.2, be charged a permanent placement fee which shall be equal to 15% of the Candidate's gross cost to Client for the Contract Period applicable to Permanent Placements (provided for in clause 5.3); and
5.2.6. an invoice for the placement fees due to Pretire in terms of this clause 5.2 will be rendered to the Client on a monthly basis, and such placement fees and/or any other fees chargeable in terms of this clause 5.2, shall be payable by the Client to Pretire on presentation of an invoice by Pretire to the Client within 72 hours of the termination date, being the date referred to as such between the Client and Candidate in their concluded written agreement or otherwise and it shall be the responsibility of the Candidate to notify Pretire in writing of the termination date.
5.3. Permanent Placements:
Should a Candidate be Introduced to the Client and the Client Employs such a Candidate on a permanent basis (regardless of any probation period), the following shall apply:
5.3.1. the Client shall pay to Pretire a once-off permanent placement fee which shall be an amount equal to 15% of the Candidate’s gross contract cost to Client for the Contract Period ("Permanent Placement Fee"); and
5.3.2. the Permanent Placement Fee shall be payable by the Client to Pretire on the presentation of an invoice by Pretire to the Client within 7 days of the presentation of such invoice;
5.4. In the event of the Client having previously received a curriculum vitae of a Candidate for any reason whatsoever from such Candidate or another third party source, and for whatever reason makes use of Pretire's Introduction services as contemplated in this Agreement to facilitate the successful Employment of such Candidate with the Client, a placement fee shall be payable by the Client to Pretire calculated similarly in accordance with the provisions of clauses 5.1, 5.2 and 5.3 as the case may be.
6. PAYMENT OF PLACEMENT FEES
6.1. Unless otherwise stated, all amounts payable by a Client to Pretire are exclusive of VAT, and a Client shall be liable to pay VAT at the prevailing rate to Pretire in respect of any such amount payable on representation of a VAT invoice by Pretire to the Client.
6.2. Any amounts payable by a Client to a Candidate for the Services shall be paid by the Client to Pretire which amount shall include, in addition to the amount owed to the Candidate, Pretire’s placement fee.. Pretire shall be entitled to deduct, as a first charge, the placement fees (described above) due and payable to Pretire in accordance with this Agreement and, thereafter, pay the balance to the nominated bank account of the Candidate, provided that the Candidate has invoiced Pretire for such portion of the amount payable to them by the Client.
6.3. Notwithstanding any provision of this Agreement to the contrary, there shall be no obligation on Pretire to make any payments whatsoever to a Candidate for the Services rendered by them until such time as Pretire has first received payment from the Client in respect of the Candidate concerned.
6.4. All payments made by a Client to Pretire shall be made in cash, without deduction or set-off into the bank account nominated by Pretire in writing from time to time.
6.5. The Client shall not be entitled to withhold, set-off or defer any payment due to Pretire in terms of this Agreement for any reason whatsoever.
6.6. A certificate signed by any director of Pretire (whose appointment and authority it shall not be necessary to prove) specifying the amount due and payable by the Client shall be full and sufficient proof of the amount due and payable to Pretire in terms of this Agreement.
7. NON CIRCUMVENTION:
With effect from the Effective Date and for a duration of 2 years thereafter, the Candidate irrevocably and unconditionally undertakes in favour of Pretire, its successors in title and assigns, that it shall not, either alone or jointly, directly or indirectly, circumvent Pretire in concluding any employment contract, of any nature whatsoever, with the Client (including, but not limited to, its directors, shareholders, agents, consultants, employees, subsidiaries, holding company, or any of its affiliates) pursuant to the Effective Date.
8. OBLIGATIONS OF THE PARTIES
8.1. For the duration of this Agreement, Pretire undertakes to the Candidate to:
8.1.1. take all reasonable steps to ensure that the website and App are accessible at all times;
8.1.2. take all reasonable steps to restore access to the website and App in the even that access thereto is disrupted for whatever reason;
8.1.3. keep its website and App professional and ensure that the website and App are regularly updated, thereby using its best endeavours to market the Candidate;
8.1.4. take all reasonable steps to refer all enquiries from Clients (if any) in respect of a specific Candidate to the specific Candidate without delay;
8.1.5. act in good faith towards the Candidate and shall at all times uphold the integrity and ethics of the Pretire; and
8.1.6. continue to establish and maintain good working relationships with Clients;
8.1.7. timeously invoice the Client for the applicable fee owing and payable to Pretire; and
8.1.8. provide the Client with information obtained from the reference check, upon written request by Client at the time of Placement, subject to the Candidate giving Pretire his/her consent thereto.
8.2. For the duration of the Agreement, the Candidate undertakes and irrevocably, and unconditionally warrants in favour of Pretire to:
8.2.1. have the necessary skills and capacity to carry out the Employment;
8.2.2. act in the utmost good faith by furnishing Pretire with a reliable and truthful CV;
8.2.3. contact Pretire immediately should the Client offer the Candidate Employment;
8.2.4. forthwith submit the contract of Employment to Pretire, or if no such written contract is in place, the terms agreed to between the Client and the Candidate;
8.2.5. participate in all interviews and/or conference calls and/or any other form of communication as is reasonably required by the Client to evaluate the Candidate;
8.2.6. carry out and perform his/her obligations for the duration of the contract of Employment diligently, timeously, and with the proper skill and exercising the due care;
8.2.7. notify Pretire in writing of any complaints, of any nature however so arising, in respect of a Client to which it has been Introduced as soon as reasonably possible; and
8.2.8. forthwith notify Pretirein writing upon early cancellation of a Candidate’s Employment and submit reasons for such early cancellation.
9. NO PARTNERSHIP, JOINT VENTURE OR AGENCY
Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership, joint venture or agency between the Parties hereto and neither Party shall have the authority to bind the other or to contract in the name of the other, or create a liability against the other in any way or for any purpose.
10. NO WARRANTY AND INDEMNITY
10.1. Pretire accepts in good faith that details and information supplied by the Candidate to it are true and correct and therefore does not warrant or represent to the Client that the Candidate is fit for the specific purpose for which the Client has appointed the Candidate, and Pretire shall not be responsible for any errors, omission or misrepresentations on behalf of the Candidate, or for any claims of whatsoever nature arising in this regard.
10.2. The Candidate accepts that his/her Contract of Employment with the Client is separate and divisible from this Agreement and accordingly Pretire cannot give any warranties, nor can Pretire be held responsible for any damages whatsoever, howsoever arising from any actions of Clients facilitated through the Introduction. The Candidate indemnifies and holds Pretire harmless against any loss, damage, liability, claim, expense or penalty whatsoever sustained by the Client in this regard.
11. ARBITRATION
11.1. Should any dispute arise between the Parties to this Agreement in regard to:
11.1.1. the interpretation of; or
11.1.2. the carrying into effect of; or
11.1.3. any of the Parties rights and obligations in terms of this Agreement; or
11.1.4. the termination of or arising from the termination of; or
11.1.5. the rectification of this Agreement,
then the dispute shall be submitted to and decided by arbitration.
11.2. The arbitration shall be held:
11.2.1. in Cape Town;
11.2.2. with only the Parties and their representatives present thereat;
11.2.3. otherwise in terms of the Arbitration Act, No. 42 of 1965, it being the intention of that the arbitration shall, where possible, be held and concluded within 21 working days after it has been demanded.
11.3. The arbitrator shall be, if the matter in dispute is principally:
11.3.1. a legal matter, a practicing attorney specializing in commercial and company law of no less than 20 years standing or a practicing senior counsel (advocate);
11.3.2. an accounting matter, a practicing chartered account of not less than 10 years standing;
11.3.3. any other matter, any independent person agreed to between the Parties.
11.4. Should the Parties fail to agree on an arbitrator within 12 days after the arbitration has been demanded then the arbitrator shall be nominated by the Chairman for the time being of the Cape Bar Council at the request of either party.
11.5. Should the Parties fail to agree whether dispute is of a legal, accounting or other nature within 7 days after the arbitration has been demanded then it shall be considered a matter as referred to in clause 11.3.3 above.
11.6. The arbitrator shall have the fullest and freest discretion with regard to the proceedings and his award shall be final and binding on the Parties to the dispute. Furthermore, the arbitrator:
11.6.1. may dispense wholly, or in part, with formal submissions or pleadings;
11.6.2. shall determine the applicable procedure;
11.6.3. shall not be bound by strict rules or evidence;
11.6.4. shall take into account the practicality or otherwise of ordering the continuance of illegal relationship between the Parties; and
11.6.5. shall include such order as to costs as he deems just and the Parties shall be entitled to have the award made an order of any court of competent jurisdiction.
11.7. Anything herein contained or implied shall not preclude any Party from applying to court for a temporary interdict or other relief of an urgent and temporary nature, pending the decision or award of the Arbitrator hereunder.
11.8. The provisions of this clause 11 are severable from the rest of this Agreement and remain in effect despite the termination or invalidity for any reason of this Agreement or any part thereof.
11.9. Subject to the preceding provisions of this clause 11, the Parties hereby consent to the jurisdicrtion of the relevant High Court of South Africa having jurisdiction.
12. JURISDICTION
The Candidate consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act, No 32 of 1944 having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by Pretire may exceed the normal jurisdiction of the Magistrate’s Court as to amount. Pretire shall, in its discretion, be entitled to proceed against the Candidate in any other court of competent jurisdiction, notwithstanding the aforegoing.
13. BREACH
If any Party (“Defaulting Party”) commits a breach of this Agreement and/or fails to comply with any of the provisions hereof, then the other Party shall be entitled to give the Defaulting Party 7 days’ notice in writing to remedy such beach and/or failure and if the Defaulting Party fails to comply with such notice, then the other Party shall forthwith be entitled, but not obliged, without prejudice to any other rights or remedies which the other Party may have in law or in terms of this Agreement, including the right to claim damages:
13.1. to cancel this Agreement; or
13.2. to claim immediate performance and/or payment of all the Defaulting Party’s obligations in terms hereof.
14. GENERAL PROVISIONS
14.1. Circumstances beyond the control of Pretire shall be sufficient excuse for any delay or suspension in the providing of services by Pretire to the Candidate.
14.2. This Agreement is personal to the Parties. Accordingly, no Party may cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Parties.
14.3. Any document prepared by Pretire remains its exclusive property and any information relating to any Candidate shall remain confidential and shall not be passed on to a third party.
14.4. In the event of the Client forwarding details of the Candidate to any other company, subsidiary, associate company or third party, within 12 months after the Introduction, who in turn Employs the Candidate in any way whatsoever, the Client shall be liable for an applicable placement fee as if the Client himself had employed the Candidate.
14.5. No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.
14.6. These Terms and Conditions contains the entire agreement between the Parties and no Party shall be bound by any undertakings representations, warranties, promises or the like not recorded in this Agreement.
14.7. No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice or preclude the Party granting any such indulgence, leniency or extension of time from exercising any of its rights in the future.
14.8. All terms and provisions of this Agreement are deemed to be independent of each other and accordingly, if any term is found to be invalid, unlawful or unenforceable, such term or provision shall be deemed to be pro non scripto and the remainder of the Agreement shall continue to be of full force and effect