GIRAFFE TERMS AND CONDITIONS
1.1. In this Agreement, unless inconsistent or otherwise indicated by the context:
“Additional Services" means the additional Applicant screening services that Giraffe can offer the Client, which services Giraffe can provide to the Client on request;
“AFSA" means the Arbitration Foundation of Southern Africa;
"Agreement" means the terms and conditions set out herein;
"Applicant" means a citizen or permanent resident of the Republic of South Africa, that:
a) is a medium-skilled job seeker;
b) has a salary expectation which falls within the Salary Range; and
c) has registered as a job seeker on the Giraffe Application;
"Business Day" means any day, other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
"Client" means the client to whom the Services are provided by the Giraffe Application pursuant to this Agreement;
"Confidential Information" means any documentation or information, whether written or oral, provided by the Disclosing Party to the Receiving Party and all information regarding the business affairs, methods of operation, data, systems, procedures or products which the Receiving Party or its contractors, consultants, agents or other representatives may receive or which may come to their attention in connection with the business of the Disclosing Party or otherwise pursuant to this Agreement;
"Database" means Giraffe’s database of Applicants;
"Disclosing Party" means the Party disclosing Confidential Information to the Receiving Party pursuant to this Agreement;
"Recruitment Fee" means the fee which is payable by the Client in respect of Placements;
"Giraffe" means Geo Spatial Management Solutions Proprietary Limited, a private company registered as such under the laws of the Republic of South Africa, with company registration number 2014/0000001/07 and having its principal place of business at 10th Floor, Fredman Towers, 13 Fredman Drive, Sandton, Johannesburg;
"Giraffe Application" means the automated, online, software application developed by Giraffe which sources, screens, contacts and schedules interviews with Applicants on behalf of prospective employers;
"Identity Verification" means the process by which the name and identity number of an Applicant is cross-checked against the records of the Department of Home Affairs of the Republic of South Africa;
"Placement" refers to the employment of an Applicant by the Client, in circumstances where the Applicant was sourced using the Giraffe Application and the offer of employment was accepted by the Applicant within twelve months of the date on which the Applicant first interviewed with the Client;
"Parties" means Giraffe and the Client, and "Party" means either one of them as the context may require;
"Receiving Party" means the Party receiving Confidential Information from the Disclosing Party pursuant to this Agreement;
“Recruitment Services Agreement” means the agreement signed by Giraffe and certain larger Clients who in consideration for their right to access and use the Giraffe Application, pay a monthly subscription fee.
"Salary Range" means a salary of between R3,000 and R15,000 per month;
""Services" means the recruitment services provided by the Giraffe Application;
"Subscription Client" means a Client who has signed a Recruitment Services Agreement and is provided Services pursuant thereto; and
"Vacancy" means an employment opportunity with a Client which is loaded onto the Giraffe Application and which may be accepted by an Applicant, if such Applicant is, following a successful interview, offered employment by the Client.
2. APPLICATION OF THIS AGREEMENT
All Services offered by Giraffe to the Client shall, where the Client has not signed a Recruitment Services Agreement, be governed strictly and exclusively on the basis of this Agreement.
This Agreement supercedes any terms and conditions which may be stipulated by the Client, including any terms and conditions which may be stipulated in the Client's purchase order.
Where a Client has signed a Recruitment Services Agreement, the Recruitment Services Agreement will take precedence.
3. THE SERVICES
Giraffe hereby gives the Client the right to access and use the Giraffe Application for the purpose of identifying suitable Applicants for Vacancies loaded by the Client onto the Giraffe Application.
The Services shall be provided to the Client exclusively through the Giraffe Application, it being explicitly recorded that Giraffe does not interact with Applicants in person and that the Applicants for any Vacancy are selected by the Giraffe Application solely on the basis of the Client’s requirements in relation to its Vacancies and the search algorithms developed by Giraffe (as refined by Giraffe in its entire discretion from time to time) and incorporated into the Giraffe Application. The Client accordingly acknowledges that the Services are provided by the Giraffe Application without any human intervention being required.
Giraffe shall not provide any Additional Services, unless requested by the Client in writing. Should the Client require Giraffe to provide Additional Services, Giraffe may in its discretion agree to provide such Services, and the Client shall be liable for extra fees in respect of such Additional Services.
4. APPLICANT QUALITY
Giraffe is unable to provide the Client with high-skilled job seekers or job seekers whose salary expectations are outside the specified Salary Range and the Client agrees not to load any vacancies onto the Giraffe Application which are either high-skilled vacancies or which offers a salary which falls outside of the Salary Range.
The parameters of the search algorithm used by the Giraffe Application shall be determined by Giraffe in its sole discretion and the Client shall not be entitled to request any changes to these parameters.
Giraffe does not guarantee the suitability of any Applicant for a Vacancy which the Giraffe Application sends to the Client for an interview and it shall be the responsibility of the Client to determine whether an Applicant satisfies the requirements in respect of the Vacancy which they are interviewing for. Further, save for Identity Verification and the provision of the agreed Additional Services, if any, neither Giraffe or the Giraffe Application is able to independently verify any information provided by the Applicant.
Subject to 4.6, Giraffe will not bear any liability for loss or damage suffered by the Client, of any nature whatsoever, and the Client shall not be entitled to any refund or reduction of the fees paid, or due and payable to Giraffe, if an Applicant accepts a position with the Client and subsequently fails to report for duty, resigns, proves unsuitable for the position he or she was hired to fill, or is dismissed for any reason whatsoever, including for misrepresenting his or her qualifications and/or experience, or for otherwise providing inaccurate or false information during the recruitment process.
In circumstances where the Client decides to make an offer to an Applicant, Giraffe cannot guarantee that the Applicant will accept the offer or that an Applicant who has accepted an offer of employment from the Client will remain so employed.
Giraffe and the Client undertake in relation to any personal information provided by an Applicant, to comply with the requirements of the Protection of Personal Information Act, 4 of 2013 and with any other laws in force in the Republic of South Africa from time to time, which has as its object, the protection of an individual’s privacy.
5. OFFER AND ACCEPTANCE
The Recruitment Fee payable by a Client (who is not a Subscription Client) to Giraffe for access to and use of the Giraffe Application shall be 3% (three percent) of the Applicant’s annual salary on Placement of the Applicant.
If an Applicant terminates his/her employment with a Client within 30 (thirty) day of his/her Placement, Giraffe will source a replacement Applicants for the Client at no additional charge..
Where an Applicant receives a basic salary plus a commission based income, the Recruitment Fee payable for the Services by the Client on Placement shall be 3% of the basic annual salary of the successful Applicant, multiplied by 1.5 (one point five).
Any credit, criminal, education and/or reference checks requested by the Client for an Applicant shall be available at an additional cost.
All fees payable by the Client under this Agreement shall be paid by the Client:
by way of an electronic funds transfer into the bank account specified by Giraffe in writing from time to time, and without set-off or deduction; or
online, by credit or debit card, using the payment mechanism provided by the Giraffe Application.
If any fees owed by the Client to Giraffe are outstanding, Giraffe shall be entitled to levy interest on the outstanding amounts at the prime rate of interest quoted by the Standard Bank of Southern Africa Limited from time to time, in respect of unsecured lending to a client in good standing.
6. SERVICE LEVELS
Giraffe shall provide the Client with a selection of suitable Applicants for any Vacancy loaded onto the Giraffe Application, within three Business Days or such longer period as may be agreed by the Parties.
7. CLIENT OBLIGATIONS
The Client shall be responsible for loading Vacancies onto the Giraffe Application and under no circumstances will Giraffe load Vacancies onto the Giraffe Application for the Client.
The Client shall ensure that its requirements in relation to any Vacancy loaded onto the Giraffe Application are clear and accurate and that it provides as much detail regarding the Vacancy as possible. Additionally, the Client shall ensure that its requirements in relation to any Vacancy do not unfairly discriminate against any Applicant on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth.
Once an interview has been scheduled with an Applicant, the Client shall use its best endeavours to interview the Applicant on the scheduled date and at the scheduled time, and it may only reschedule such interview if it has given Giraffe at least forty-eight hours prior written notice. If the Client cancels an interview on less than 48 hours written notice, Giraffe shall not be obliged to reschedule the interview and may elect, on written notice to the Client, to cancel this Agreement.
The Client shall, on completion of an Applicant interview, provide Giraffe with formal feedback regarding the Applicant using the feedback form supplied by Giraffe.
If a Client fails to provide the required feedback, the Applicant will remain on Giraffe’s Database and will continue to receive information regarding other job opportunities.
Subject to an Applicant’s right to request that his/her name remain on Giraffe’s Database following his/her employment by the Client (the consequence being that the Applicant will continue to receive notifications of other job opportunities), where a Client has employed an Applicant, Giraffe will remove the Applicant from its Database for a period of 12 months, during which period the Applicant will not receive notifications of any other job opportunities.
The Receiving Party will keep all Confidential Information disclosed by the Disclosing Party pursuant to this Agreement, in strict confidence and shall not use any such information for any purpose other than the purpose for which it was disclosed, unless disclosure is authorised by the Disclosing Party, or if the Receiving Party is ordered to disclose such information in the course of legal proceedings or by an order to court, or if disclosure is required pursuant to any law.
For the purposes of this clause, Confidential Information does not include information:
that was known to the Receiving Party prior to disclosure by the Disclosing Party;
that is, or becomes public knowledge through no fault of the Receiving Party; or
that comes to the knowledge of the Receiving Party as a result of disclosure by a third party who is not in breach of any obligation of confidentiality.
In the event of either Party ("the Defaulting Party") breaching any provision of this Agreement and failing to rectify such breach within 10 (ten) days of receipt by the Defaulting Party of a written notice delivered to it by the other Party ("the Aggrieved Party"), calling upon the Defaulting Party to rectify such breach, the Aggrieved Party will be entitled at its election to seek specific performance of the Defaulting Party's obligations in terms of this Agreement, or to cancel this Agreement, in either instance without prejudice to the Aggrieved Party's right to claim any loss or damage it may have suffered by reason of such breach.
10. LEGAL PROCEEDINGS
Regardless of the place of execution or performance under this Agreement or the domicile of the Client, this Agreement and all modifications and amendments hereof, shall be governed by and construed under the laws of the Republic of South Africa.
The Client hereby submits to the jurisdiction of Magistrates Court, notwithstanding that the amount of Giraffe's claim may exceed the jurisdiction of the Magistrates Court.
A certificate issued and signed by any director or manager of Giraffe, whose authority need not be proved, in respect of any indebtedness of the Client to Giraffe, shall be prima facie evidence of the Client's indebtedness to Giraffe.
The Client's physical business address from time to time shall be recognized as the Client's address for receipt of notices and execution of legal documents for all purposes in terms of this Agreement, whether in respect of the serving of any court process, notices, the payment of any amount or communications of whatever nature. Giraffe chooses 10th Floor, Fredman Towers, 13 Fredman Drive, Sandton, Johannesburg as its domicilium address.
In the event of there being any dispute or difference between the Parties arising out of this Agreement, the said dispute or difference shall, on written demand by either Party, be submitted to arbitration in Johannesburg in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, or should AFSA refuse to accept the particular request for arbitration for whatever reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties or failing agreement within 10 Business Days of the demand for arbitration, either Party shall be entitled to forthwith call upon the chairperson of the Johannesburg Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate of not less than 10 years standing as such. The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties to the dispute.
Any Party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.
Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
Any arbitration in terms of 11.1 or 11.2 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential, details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
This clause will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.
The Parties agree that the written demand by a Party to the dispute in terms of clause 9.1 that the dispute or difference be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 68 of 1969.
This Agreement constitutes the whole of the Agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
This Agreement supersedes and replaces any and all Agreements between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
The Client acknowledges that no warranties, representations or guarantees have been made by Giraffe or on behalf of Giraffe, which may have induced the Client to sign this Agreement.
No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from this Agreement and no single or partial exercise of any right by either Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from this Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of either Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
Neither this Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by either Party without the prior signed written consent of the other, save as otherwise provided herein.
The Client undertakes to notify Giraffe in writing within a period of 7 (seven) days of any change of address, change in ownership, name change or any changes in information as set out in this Agreement and shall likewise inform the Client of any such changes affecting Giraffe.
The headings in this document are included for convenience only and are not to be taken into account for the purpose of interpreting this Agreement.
All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.
No waiver, suspension or postponement by either Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by that Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
13. CONSUMER PROTECTION ACT
Giraffe recognizes that its Clients may be consumers under the Consumer Protection Act and Regulations and in so far as any transactions contemplated herein are protected under the Consumer Protection Act, the provisions of this Agreement shall be interpreted in order to give effect to the Client’s rights. Likewise, the Client recognizes and confirms that in so far as they are not in conflict with the Consumer Protection Act and Regulations, the Client shall dutifully perform its obligations under this Agreement.
This Agreement shall commence on the date the Client first makes use of the Giraffe Application and shall continue for as long as such use persists.