PHAKISA HOLDINGS (PTY) LTD (“THE COMPANY”)’S GENERAL TERMS AND CONDITIONS AS BETWEEN THE COMPANY AND THE USER (“THE GENERAL TERMS AND CONDITIONS”).
THE GENERAL TERMS AND CONDITIONS ARE EFFECTIVE AS OF 19 OCTOBER 2021 “EFFECTIVE DATE”
READ THE GENERAL TERMS AND CONDITIONS CAREFULLY BEFORE BROWSING THE WEBSITE. YOUR CONTINUED USE OF THE WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THE GENERAL TERMS AND CONDITIONS. YOU CANNOT USE THE WEBSITE IF YOU DO NOT ACCEPT THE GENERAL TERMS AND CONDITIONS. ALL SECTIONS OF THE GENERAL TERMS AND CONDITIONS ARE APPLICABLE TO THE USER.
1.1. The Company’s website available at www.dev.phakisaholdings.co.za is made available and owned by Phakisa Holdings (Pty) Ltd (bearing registration number 2019/569481/07) (hereinafter referred to as “the Company”, “Website”, “we”, “our” or “us”). Any reference to “the Company”, “we”, “our” or “us” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and partners.
1.2. Should a user of the Website (hereinafter referred to as “User”) not agree to the terms contained herein, a User must immediately desist from using this Website.
1.3. To the extent permitted by applicable law, we may modify the General Website Terms and Conditions, with prospective effect without prior notice to a User, and these revisions will take effect when posted on the Website. A User’s continued use of the Website will be construed as a User’s consent to the amended General Website Terms and Conditions. A User’s only remedy, should such Party not agree to such modifications, is to stop the use of the Website.
2.1. In these General Website Terms and Conditions, “Posted Content” shall mean any audio, video text, images or other material a User may choose to display on the Website, if applicable. By displaying Posted Content, a User grants the Company non-exclusive, worldwide irrevocable, sub-licensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
2.2. Posted Content must be a User’s own and must not be invading any third party’s rights. The Company reserves the right to remove any of a User’s Posted Content from this Website at any time without notice.
3.1. Other than the content a User owns and may be required to upload during the use of this Website, the Company and/or the Company’s licensors own all the intellectual property rights and materials as are contained on this Website.
3.2. None of the contents of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, except as permitted by the fair use privilege under the South African copyright laws or without our prior written permission, and further, should such consent be provided, we reserve the right to withdraw such consent at any stage at our sole and absolute discretion.
3.3. A User is granted a limited license only for purposes of utilising this Website.
3.4. A User undertakes not to attempt to decipher, decompile, disassemble or reverse engineer any of the software or code comprising or in any way making up a part of the Website, including any algorithm used by us.
3.5. We own or are licensed to use all intellectual property on the Website, with the exception of the User’s Posted Content, which User’s Posted Content shall remain the intellectual property of that User, and which a User hereby licenses to us. A User may not use any of our intellectual property for any purpose other than as may be required to use the Website for its intended purpose.
3.6. We do not permit copyright infringing activities and infringement of intellectual property rights on the Website, and we may, at our sole discretion, remove any infringing content if we are of the view that such content infringes on another’s intellectual property rights or our own.
4.1. A User may not:
4.1.1. publish or mirror any of this Website’s material in any media whatsoever;
4.1.2. use this Website for any objectionable or unlawful purpose, including the posting of any threatening, libellous, defamatory, obscene, scandalous, inflammatory, pornographic, profane or spam material;
4.1.3. take any action that imposes an unreasonable or disproportionately large load on the Website’s infrastructure, including spam or other unsolicited mass e-mailing techniques;
4.1.4. use the Website in any manner that would result in another User breaching any applicable legislation or licensing obligations (including with respect to privacy) or any obligations a User may owe to third parties;
4.1.5. mislead or deceive others through any act or omission or make a false representation about a User’s identity, including the impersonation of a real or fictitious person or using an alternative identity or pseudonym;
4.1.6. conduct any activity which compromises or breaches another party’s patent rights, trademark, copyright or other intellectual property rights;
4.1.7. copy, collect or save information about other Users;
4.1.8. introduce any virus, worm, trojan horse, malicious code or other programs which may damage computers or other computer-based equipment to the Website or to other Users;
4.1.9. stalk or harass anyone;
4.1.10. attempt to disrupt or interfere with the Company Services or Services as delivered through the Website;
4.1.11. use the details of other Users for anything other than the use expressly permitted by those users;
4.1.12. download, access, use, harvest or download in bulk User details;
4.1.13. pass on a User’s login details to anyone other than the authorised user of that account;
4.1.14. remove or alter our copyright notices or other means of identification including any watermarks, as they appear on the Website;
4.1.15. use this Website contrary to applicable laws and regulations, or in any way that may cause harm to the Website, or to any person or business entity;
4.1.16. use this Website to engage in any advertising or marketing other than in a manner expressly permitted by the Website;
4.1.17. crawl, spider or scrape the content of the Website, except to the extent required by recognised search engines (e.g. Google) for the purposes of indexing this Website; or
4.1.18. provide unauthorised interfaces to the Website.
4.2. The User understands and agrees that the User is solely responsible for compliance with any and all laws, rules, regulations and taxation obligations that may apply to the User’s use of the Website.
4.3. Certain areas of this Website are restricted from being accessed by a User, and the Company may further restrict access by a User to any areas of this Website, at any time, at its absolute discretion. Any User Log in Details a User may have for this Website are confidential and a User must maintain the confidentiality thereof.
5.1. This Website is provided “as is,” with all faults, and the Company expresses no representations or warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or non-infringement.
5.2. Without limiting the generality of the foregoing, the Company makes no warranty that the Website will meet a User’s requirements, or that the Website will be uninterrupted, timely, secure, error-free or that defects on the Website will be corrected.
5.3. The Company cannot guarantee or warrant that any file downloaded from this Website or delivered to a User will be free of infection or virus, worms, trojan horses or other code that has contaminating or destructive qualities. A User is responsible for implementing appropriate processes, systems and procedures to circumvent this type of issue.
5.4. The Company cannot be held liable for any inaccurate information contained on the Website
6.1. The User warrants and represents that the information provided to the Company is and shall remain accurate, true and correct and that the User will update the information held by us to reflect any changes as soon as possible.
6.2. Any User registering on the Website on behalf of any entity warrants that such User will be taken to have represented to us that it has the authority to act on behalf of the entity and that these General Website Terms and Conditions will be binding on the User.
6.3. The User further warrants that when registering on the Website it:
6.3.1. is not impersonating any person or entity;
6.3.2. is not violating any applicable law regarding the use of personal or identification information;
6.3.3. is authorised to create an account; and
6.3.4. will provide, on-demand from our verification of such User’s credentials in such form as required by us.
7.1. The Website shall be used entirely at a User’s own risk.
7.2. The User indemnifies us, and agrees to keep us indemnified, from and against any claim, loss, damage, cost or expense that we may suffer or incur as a result of or in connection with the User’s improper use of or conduct in connection with the Website, including any breach by the User of these terms or any applicable law or licensing requirements.
7.3. As the Company only provides the Website on which Users do business, to the fullest extent permitted by law, a User agrees that the Company shall not be liable for any losses to the User however arising and whatever the cause in respect of the Website, even in instances where the Company was informed of the possibility of such losses being caused, including, but not limited to, losses that arise as a result of any User’s misconduct, negligence and/or gross negligence.
7.4. Notwithstanding the foregoing clauses, should the Company not be permitted to lawfully limit its liability as referred to in 7.3 above, the Company’s aggregate liability for losses arising out of or in connection with Services or Company Services, shall be the Fees as charged by the Company in respect of such particular transaction.
7.5. Neither Party will be liable to the other Party, or to any cessionary or third-party claiming through or on behalf of a Party, for any punitive, indirect, special or consequential damages whatsoever, arising out of or related to these General Terms and Conditions.
8.1. If any of these terms are deemed invalid or unenforceable for any reason then the invalid or unenforceable provision will be severed from these General Terms and Conditions and the remaining terms will continue to apply. Failure by us to enforce any of the provisions set out in these General Terms and Conditions and/or any other agreement, or failure to exercise any option to terminate, shall not be construed as a waiver of such provisions and shall not affect the validity of these General Terms and Conditions or of any agreement or any part thereof, or the right thereafter to enforce each and every provision.
9.1. The Company is allowed to assign, transfer, and subcontract its rights and/or obligations under these General Terms and Conditions without any notification. However, a User is not allowed to assign, transfer, or subcontract any of its rights and/or obligations under these General Terms and Conditions.
10.1. These General Terms and Conditions relationship between the User and the Company shall be regulated entirely by the laws of the Republic of South Africa and, in the event of a dispute, the User consents, at the Company’s sole and exclusive discretion to the jurisdiction of the Boksburg Magistrate’s Court of South Africa.
PHAKISA HOLDINGS (PTY) LTD (“THE COMPANY”)’S TERMS OF SERVICE AS BETWEEN THE COMPANY AND THE CLIENT (“THE CLIENT TERMS OF SERVICE”).
THE CLIENT TERMS OF SERVICE ARE EFFECTIVE AS OF 19 OCTOBER 2021
“EFFECTIVE DATE”
READ THE CLIENT TERMS OF SERVICE CAREFULLY BEFORE BROWSING THE WEBSITE. YOUR CONTINUED USE OF THE WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THE CLIENT TERMS OF SERVICE. YOU CANNOT USE THE WEBSITE IF YOU DO NOT ACCEPT THE CLIENT TERMS OF SERVICE. ALL SECTIONS OF THE CLIENT TERMS OF SERVICE ARE APPLICABLE TO THE CLIENT.
1.1. The Company’s Website which is accessed at www.dev.phakisaholdings.co.za is made available and owned by Phakisa Holdings (Pty) Ltd (bearing registration number 2019/569481/07) (hereinafter referred to as “the Company”, “Website”, “we”, “our” or “us”). Any reference to “the Company”, “we”, “our” or “us” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and partners.
1.2. The Client Terms of Service, including any document incorporated by reference herein, including, but not limited to the General Terms and Conditions and Privacy Policy (collectively, the “Terms”) apply to any Client who uses the Services, accesses, refers to, views and/or uploads or downloads any information or material made available on the Website for whatever purpose. These Client Terms of Service govern the Client’s relationship with the Company.
1.3. Accessing and/or use of the Website after the Effective Date will signify that the Client has read, understands, accepts, and agrees to be bound, and is bound, by the Terms, in such Client’s individual capacity and/or for and on behalf of any entity for whom the Client utilises the Website (if applicable). Further, the Client represents and warrants that they have the authority to do so and that in the case of the Client being a natural person, the Client is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
2.1. The following terminology applies to these Client Terms of Service:
2.1.1. “BCEA” shall mean the Basic Conditions of Employment Act 77 of 1997 (as amended);
2.1.2. “Browser” shall mean any person who visits any page of the Website, whether by landing on the home page or any other page through use of a hyperlink of another website or by direct access to the Website and has not used the Services as made available by the Company through the Website;
2.1.3. “Client” shall mean either a natural person or an entity which acquires Services through the Website, alternatively engages privately with a Worker after making first contact through the Website in order to have Worker Services rendered;
2.1.4. “Client Terms of Service” shall mean these terms of service;
2.1.5. “Company” shall mean Phakisa Holdings (Pty) Ltd (Registration number: 2019/569481/07) a private company duly incorporated in accordance with the company laws of South Africa, as the provider and/or facilitator of the Services made available through the use of the Website;
2.1.6. “Company Services” shall mean the provision of temporary employment labour broking services and recruitment services as provided by the Company to the Client, as detailed more fully in clause 7 below;
2.1.7. “Deeming Provision” shall mean an instance where a Worker, who earns below the Threshold does not perform, or no longer performs, a temporary service as defined in the LRA. In such an event, and unless the provisions in the LRA relating to fixed-term contracts in respect of employees earning below the Threshold applies, the Worker will be deemed to be employed by the Client on an indefinite basis after the expiration of the Deeming Term;
2.1.8. “Deeming Term” shall mean a three month period calculated from the date upon which the Worker commences with the Worker Services in respect of a Client;
2.1.9. “Employment Agreement” shall mean a separate agreement, not forming part of these Client Terms of Service, which will be entered into and concluded between the Client and a Worker to whom the Deeming Provision applies, in instances where a Deeming Provision applies;
2.1.10. “Fees” shall mean the amount/s payable by the Client to the Company in respect of the Worker Services rendered, which payment terms are set out more fully in clause 8 below;
2.1.11. “General Terms and Conditions” shall mean those terms and conditions applicable to both the Client and the Worker, and which are available here: https://decidefunctional.co.za/cms/view/terms-and-conditions
2.1.12. “Log in Details” shall mean, inter alia, the Client’s unique username and password used to access the Company Services, use the Website and access/use any ancillary services;
2.1.13. “LRA” shall mean the Labour Relations Act, 66 of 1995 as amended;
2.1.14. “Party” or “Parties” shall mean the Company or the Client, or both, as the context implies;
2.1.15. “Registration Process” shall mean the process to be followed by a Browser on the Website in order to enable the Browser to make use of the Company Services and thus make the transition from a Browser to a Client;
2.1.16. “Services” shall mean the Company Services and Worker Services collectively;
2.1.17. “Service Specification Form” shall mean the document completed by the Client on the Website setting out the Worker Services that it requires a Worker to fulfil;
2.1.18. “Terms” shall mean these Client Broker Terms and Conditions read together with the General Terms and Conditions and Privacy Policy, which may be found here: https://decidefunctional.co.za/cms/view/privacy-policy and https://decidefunctional.co.za/cms/view/terms-and-conditions respectively;
2.1.19. “Threshold” shall mean the earnings Threshold amount as determined from the Minister of Labour and Employment from time to time;
2.1.20. “Website” shall mean the Website as owned, hosted and managed by the Company on which the Worker’s Services are advertised and/or made available for acquisition by the Client and which is situated at the following URL: www.dev.phakisaholdings.co.za;
2.1.21. “Worker” shall mean a person, who is employed by the Company, who has passed the pre-qualified tests of the Client and who is deemed suitably qualified to render the Worker Services; and
2.1.22. “Worker Services” shall mean those skills as may be rendered by a Worker to a Client and set out more fully in the Service Specification Form.
2.2. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
3.1. These Client Terms of Service shall commence on the date on which the Client has successfully gone through the Registration Process and shall continue indefinitely until termination by –
3.1.1. reason of the occurrence of a force majeure event as set out in clause 28 below;
3.1.2. the cancellation of this Agreement by either Party in accordance with the provisions of clause 15 below; or
3.1.3. either Party in accordance with the provisions of clause 16 below.
4.1. The Company, in providing the Company Services as set out in clause 7 below undertakes that it will comply with all applicable legislation.
4.2. Neither Party is an agent of the other or has any authority to represent the other in any matters, except as expressly authorised in the Terms.
4.3. Nothing contained in the Terms shall be construed as creating a company, close corporation, joint venture, partnership or association of any kind whatsoever between the Parties, nor shall anything contained in the Terms be construed as creating or requiring any continuing relationship or commitment from any entity controlled, whether directly or indirectly by either one of the Parties or by any employees, agents, independent contractors or the like of either of the Parties.
4.4. Unless expressly authorised in the Terms, neither of the Parties (nor their respective agents) shall have the authority or right, nor shall any Party hold itself out as having the authority or right, to assume, create or undertake any obligation of any kind whatsoever, express or implied, on behalf of or in the name of the other Party.
5.1. The Company grants the Client a limited, revocable, non-transferable license to access and use the Website in accordance with the Terms which may govern such use and access.
5.2. To the extent that there exists any inconsistency between the terms of the Client Terms of Service and the General Terms and Conditions, the terms herein shall prevail to the extent of any inconsistency unless expressly provided otherwise herein.
6.1. Only a Client may acquire the Services through the Website.
6.2. In order to register as a Client, a Browser will, through the Registration Process, be prompted to provide Log in Details as well as submit certain personal information which is set out in more detail in the Privacy Policy.
7.1. In order that the Company Services may properly be executed, the Client will be required to complete a Service Specification Form which shall include certain details relating to:
7.1.1. the type of Worker Services required;
7.1.2. the duration that it requires the Worker Services to be provided for;
7.1.3. the place where such Worker Services would need to be performed;
7.1.4. if home-based services, the equipment that the Worker would need in order to provide the Worker Services;
7.1.5. the days and hours on which the Worker Services will be required to be provided; and
7.1.6. any other information that the Client may feel is relevant relating to the specific Worker Services.
7.2. After completing the Service Specification Form, the Client shall engage with suitable Worker(s) on the Website, in the manner as set out by the Company from time to time on the Website, in order to appoint a Worker(s) to perform the Worker Services.
7.3. In the event of a Client circumventing the Website or Company and engaging with a Worker directly, the Client may not rely on the content of this Customer Terms and Conditions, or benefit from any protection that may be offered in respect hereof.
7.4. The Company shall further act as a facilitator between the Worker and the Client by:
7.4.1. permitting a Client (once the Registration Process has been completed) to gain access to the Website and view the profiles of Workers who have registered on the Website;
7.4.2. recruiting a Worker based on a Client’s request, on the provision that such Worker meets the Client’s specifications;
7.4.3. where required by a Client, book medical appointments, or any other safety appointments in respect of the Worker;
7.4.4. entering into an employment agreement with a Worker;
7.4.5. in cases where required, both issuing and controlling personal protective equipment (“PPE”);
7.4.6. attending to the processing of the payroll and delivering payslips on due date;
7.4.7. dealing with any salary enquiries or payment disputes which a Worker may have;
7.4.8. where necessary, and specifically required by the Client, attending to disciplinary procedures in respect of a Worker, which shall include but not be limited to the holding of disciplinary enquiries. In the event of a disciplinary enquiry being required, the Client undertakes that it shall testify as a witness at such enquiry if required by the Company;
7.4.9. in circumstances where a worker may be injured on duty, taking the Worker to hospital and completing all necessary documents in order that the Worker may receive medical attention;
7.4.10. remaining in contact with the Worker for the duration of the Worker Services, and if necessary, providing feedback to the Client where the subject of the contact is relevant to the Client;
7.4.11. in the event of a Worker needing to be replaced by reason of disciplinary action, resignation or the like, attend to doing so on the Client’s behalf and at the Client’s request;
7.4.12. co-managing a force majeure event with the Client in respect of the Worker; and
7.4.13. to the best of its ability, maintaining a good relationship with the Worker at all times.
7.5. The Company undertakes to perform the Company Services to the best of its ability and in accordance with these Client Terms of Service.
8.1. The Company shall render invoices to the Client in respect of the Fees due in respect of the Worker Services performed, and which invoices are required to contain at least the following information:
8.1.1. amount due in respect of VAT; and
8.1.2. the Company’s VAT registration number.
8.2. The Client shall be entitled to request additional documentation relating to the Fees recorded on the invoice from the Company, which documentation the Company undertakes to provide as soon as reasonably possible after such request has been made.
8.3. Payment of the Fees will take place within 30 days from date of issue of the invoice in respect of the Worker Services. The Company shall be entitled to charge interest on any overdue amounts as follows:
8.3.1. no later than 30 days after the date of issue of the invoice 0% interest;
8.3.2. between 31 and 60 days after the date of issue of the invoice at 1.25% interest on the outstanding balance; and
8.3.3. between 61 and 90 days after the date of issue of the invoice at 2% interest on the outstanding balance.
8.4. Should the Fees together with the conditions of employment be regulated by a bargaining council / sectoral determination, the Parties agree to adhere to the rules of the relevant bargaining council / sectoral determination agreement.
8.5. The Client will make payment of the Fees to the Company by means of electronic bank transfer into the bank account nominated by the Company, timeously and in full, with proof of payment being transmitted to the Company.
8.6. In the event that a Client disputes an invoice, then the Client is to advise the Company no later than 7 (seven) days after receipt thereof, advising of the reason for the dispute, whereafter a representative of each Party shall meet in an attempt to reach a resolution.
8.7. Should such resolution fail, an independent expert shall be appointed by agreement between the Parties in order that an independent assessment may be provided, at a cost-shared between the Parties. Should agreement still not be reached, ordinary remedies in law in the appropriate forum, as per clause 24.1, may be sought.
9.1. The Client undertakes that should it be placed in contact with a Worker as a result of the Website or Company, they shall not attempt to circumvent or by-pass the Company in any manner and engage with the Worker to the exclusion of the Company. Should a Client do so, such Client will be liable for a penalty amounting to the full Fees that would have been applicable in the event that such Worker Services were to have been rendered.
10.1. The Company hereby warrants and represents to the Client that, as at the Effective Date:
10.1.1. it shall carry out the Company Services and all its duties and obligations arising in terms of these Client Terms of Service in accordance with the standards as determined between the Parties from time to time. Without derogating from the generality of the foregoing, the Company shall assign performance of the Company Services to personnel having the skills, experience and expertise, capacity and knowledge required to perform the Company Services;
10.1.2. it shall not engage in any activities that would detract from the proper performance of its obligations and duties under the Client Terms of Service;
10.1.3. it shall use its reasonable endeavours to avoid any material conflict between its interests and those of the Client and, where such conflict is unavoidable, will disclose the details of such conflict to the Client;
10.1.4. it has adequate facilities/infrastructure to comply with its obligations in terms of the Client Terms of Service;
10.1.5. it has the necessary power and legal capacity to enter into and perform its obligations under the Client Terms of Service and all matters contemplated herein;
10.1.6. it has taken all necessary corporate and/or internal action to authorise the execution and performance of the Client Terms of Service;
10.1.7. it has the capacity and authority to provide the representations, warranties and undertakings contained in the Client Terms of Service;
10.1.8. it shall provide the Company Services contained in the Client Terms of Service:
10.1.8.1. in a cost-effective manner;
10.1.8.2. in a manner which ensures that the Client receives “value for money”; and
10.1.8.3. in a manner such that the provision of the Company Services assists the Client to prevent unauthorised, irregular and fruitless and wasteful expenditure for the Client.
10.1.9. all information provided by the Company to the Client in relation to the Client Terms of Service shall be accurate in all respects.
11.1. Without limiting the generality of the Terms, and in the event that the Deeming Provision comes into effect, the Client hereby indemnifies the Company and shall keep indemnified the Company after the expiration of the Deeming Term, against any reinstatement order that the Worker (as employee of the Client) may have against the Company in respect of the Worker Services or from the Worker being deemed the employee of the Client.
11.2. In the event of the Deeming Provision being applicable, the Client will be required to enter into an employment agreement between the Client and the Worker setting out the terms and conditions of employment.
11.3. If the Worker is not a deemed employee of the Client, then the Company will retain the Worker as its own employee after the Worker Services are complete.
12.1. Whilst the Worker Services are being rendered, the Company shall be appointed agent of the Client with the delegated powers to attend to certain matters on behalf of the Client, and represent the Client therein. Notwithstanding anything else contained in these Client Terms of Service, and the Client agrees that:
12.1.1. its policies in respect of misconduct, incapacity, operational requirement and related labour practices shall apply to the Worker for the Worker Services, should they fall within the ambit of the Deeming Provision;
12.1.2. it will constructively assist the Company to execute or fulfil its functions in whatever manner required or requested to do so, to comply with these Client Terms of Service or any statutory obligation; and
12.1.3. any indemnifications and/or liability arising from the application of the Deeming Provision, shall not accrue to the Company if the Company had not been afforded an opportunity to comply with applicable statutory obligations and/or any Client / Company policies and/or these Client Terms of Service.
12.2. Upon the commencement of the Worker Services, the Company shall be the Client’s true and lawful agent to perform in the name of and in the stead of the Client, the following:
12.2.1. to conduct and process any internal disputes in respect of Workers, during all labour related matters, including but not limited to disciplinary action, incapacity proceedings and restructuring exercises as it may arise within the workplace of the Client; and
12.2.2. to conduct on behalf of and represent the Client in any dispute resolution proceeding(s) referred to the Commission for Conciliation Mediation and Arbitration, Statutory Bargaining Council and Labour Court and any other forum duly mandated to deal with disputes emanating from any form of employment relationship with a Worker.
12.3. Without in any way limiting the aforegoing, the Company has the right to manage the labour related matters contemplated in these Client Terms of Service as if it were the Client doing so itself. Inasmuch as it may be necessary, the Client hereby commits to ratify and confirm anything done by the Company in labour-related matters contemplated in these Client Terms of Service.
12.4. The Client acknowledges that to ensure that the Company is able effectively to carry out the aforesaid functions, the Client shall timeously alert the Company to any matters pertaining to the labour relations ambit that impacts the Worker and allows the Company a reasonable opportunity to address this with the full cooperation and assistance from the Client in respect of, inter alia, all relevant information and/or evidence.
12.5. In the event that the Client instructs the Company to remove a Worker from its premises/operations/site/project and the Client is unable or is unwilling to assist the Company to fairly or lawfully:
12.5.1. remove the Worker from a premises / operations / site / project; and / or
12.5.2. take any action against Worker that could be defined as an unfair labour practice and/or is dealt with in terms of the Employment Equity Act; and/or
12.5.3. dismiss the Worker for reasons related to misconduct, incapacity or operational requirements,
then the Client hereby unconditionally indemnifies the Company against any and all costs (also legal) / liability/order/award/damages whatsoever related to that instruction.
13.1. Clauses which out of necessity or by implication herein survive termination of these Client Terms of Service, shall remain in full effect despite the termination hereof.
14.1. We do not, nor are we under any obligation or duty to a Client or anyone else to monitor, consider, evaluate, assess, review, screen, censor or remove any content on the Website. We do not have (and expressly disclaim) any liability in connection with any monitoring, consideration, evaluation, assessment, review, screening, censoring or removal of posted content or any failure or refusal on our part to do so.
15.1. Notwithstanding any other provisions of these Client Terms of Service, the Company reserves the right to terminate these Client Terms of Service with immediate effect, for amongst other reasons, gross misconduct, incompetence, breach of the Client Terms of Service, incapacity, dishonesty and /or any other offense committed by the Client in terms of the law.
15.2. At the cessation of these Client Terms of Service, the Client will only be liable for the amount due in respect of Worker Services as have been successfully completed and for which the Company has not yet received payment.
15.3. The Parties agree that in all instances where these Client Terms of Service are cancelled for whatever reason, the Client will:
15.3.1. pay the Fees for all Workers of the Client that are still rendering Worker Services to the Client as at the date of cancellation of these Client Terms and Conditions;
15.3.2. release the Worker back to the Company; and
15.3.3. pay all outstanding invoices/monies immediately.
16.1. Either Party may, by giving notice to the other Party (Notifying Party), terminate the Terms, in whole or in part, as of a date set out in the notice of termination in the event that the other Party (Defaulting Party) commits:
16.1.1. a material breach of these Client Terms of Service, which breach is not remedied in terms of clause 17 below;
16.1.2. a material breach of these Client Terms of Service that is not capable of being remedied; or
16.1.3. numerous breaches of these Client Terms of Service that collectively constitute a material breach, even if remedied.
16.2. The Notifying Party may, by giving notice to the Defaulting Party, terminate these Client Terms of Service, in whole or in part, as of a date set out in the notice of termination if any insolvency event occurs in relation to the Defaulting Party.
16.3. The Notifying Party may terminate these Client Terms and Conditions, by giving notice to the Defaulting Party, in whole or in part, as of a date set out in the notice of termination in the event that it is advised that any applicable Law, as they may be changed, enacted or repealed, prevent the Defaulting Party from performing its obligations under these Client Terms of Service.
16.4. In the case of a termination of these Client Terms of Service in part, the charges payable under these Client Terms of Service shall be reduced proportionately to reflect the partial termination of the Client Terms of Service.
16.5. The Client may terminate these Client Terms of Service, by giving notice to the Company if the Company fails to comply with all applicable laws relating to taxation in South Africa.
16.6. The Notifying Party shall have no liability to the Defaulting Party with respect to termination under this clause.
16.7. Notwithstanding the aforegoing, the Company may terminate these Client Terms of Service for any reason or no reason on 7 (seven) calendar days’ notice to the Client.
17.1. If either Party commits a breach of these Client Terms of Service and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel these Client Terms of Service and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
18.1. The Company shall not subcontract (nor permit anyone to perform) any part of the provision of the Company Services without the Client’s prior written consent. If the Client consents to any subcontracting as previously mentioned, then the Company shall be deemed to have guaranteed the due, punctual and proper performance of the subcontractor or third party in question and the Company shall procure that the subcontractor concerned is bound by the provisions of these Client Terms of Service in respect of any Company Services, which shall apply to such subcontractor mutatis mutandis.
19.1. Neither Party shall, without the prior written consent of the other Party, solicit for employment the current or former employees, agents, Workers and/or subcontractors of the other Party, or otherwise retain the services of such persons during the currency of the Client Terms of Service (other that in accordance with the Client Terms of Service) and for a period of two (2) years thereafter.
19.2. The Company will not be prohibited from processing applications of the Client’s employees where such employees approach the Company of their own free will and/ or in response to an advertisement.
20.1. The Company shall, for the duration of the Client Terms of Service and at its own expense, effect and keep current policies of insurance-related solely to public liability and statutory prescribed insurance in the Company’s own name with the intent that the Company is adequately insured and indemnified for any reasonable cost, claims or damages that may arise.
21.1. The Company shall comply with all the Client’s safety, health and security policies and any applicable safety laws and regulations, including, but not limited to, the Occupational Health and Safety Act No. 85 of 1993.
21.2. The Client shall assist and support the Company at all times in the application and implementation of the mentioned policies/laws/regulations and ensure that it complies itself with all its own obligations in this regard.
22.1. The Company and the Client choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Client Terms of Service, the following:
22.1.1. Company: 61 Barleria Crescent, Rietvlei, Pretoria info@decidefunctional.co.za
22.1.2. Client: The address as provided when registering on the Website
22.2. Both the Company and the Client may change their domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (seven) days after receipt of notice of change of domicilium.
22.3. Any notice given in terms of these Client Terms of Service shall be in writing and shall:
22.3.1. if delivered via email, be deemed to have been received on the date of dispatch;
22.3.2. if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery; and
22.3.3. if delivered by an internationally recognised courier service, be deemed to have been received by the addressee 3 (three) business days after dispatch.
22.4. Notwithstanding anything to the contrary contained in these Client Terms of Service, a written notice or communication actually received by a Party from another shall be adequate written notice or communication to such Party.
23.1. Save as provided in this clause 23, each Party shall ensure that its employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and partners shall treat as confidential all information relating to the other Party or its employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and partners relating to their respective businesses that is of a confidential nature and which is obtained by that Party in terms of, or arising from the implementation of this Client Terms of Service, which may become known to it by virtue of being a Party, and shall not reveal, disclose or authorise the disclosure of any such information to any third party or use such information for its own purpose or for any purposes other than those related to the implementation of this Client Terms of Service.
23.2. Either Party may, by notice in writing, be entitled to demand the prompt return of the whole or any part of any confidential information supplied by it to the other Party, and each Party hereby undertakes to comply promptly with any such demand.
24.1. These Client Terms of Service shall be regulated entirely by the laws of the Republic of South Africa and, in the event of a dispute, the Client consents, at the Company’s sole and exclusive discretion to the jurisdiction of the Boksburg Magistrate’s Court of South Africa.
25.1. No contract varying, adding to, deleting from or cancelling these Client Terms of Service, and no waiver of any right under these Client Terms of Service, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.
26.1. The Terms constitute the whole terms between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein, are binding on the Parties.
27.1. Any provision in this Client Terms of Service which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Client Terms of Service shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Client Terms of Service, without invalidating the remaining provisions of this Client Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
28.1. If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Client Terms of Service due to theft, strike, lock-out, load shedding, blackout, fire, explosion, flood, riot, war, vehicle accidents, act of nature, epidemic, pandemic, embargo, legislation, civil commotion, unrest, strikes or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of such Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party. Any Party invoking force majeure shall upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party.
28.2. If the event continues for a period of 30 (thirty) days, either Party may then give notice of termination of the Clients Terms of Service, which termination shall take effect 7 (seven) business days after the giving of the notice.
PHAKISA HOLDINGS (PTY) LTD (“THE COMPANY”)’S TERMS OF SERVICE AS BETWEEN THE COMPANY AND THE WORKER (“THE WORKER TERMS OF SERVICE”).
THE WORKER TERMS OF SERVICE ARE EFFECTIVE AS OF 19 OCTOBER 2021
“EFFECTIVE DATE”
READ THE WORKER TERMS OF SERVICE CAREFULLY BEFORE BROWSING THE WEBSITE. YOUR CONTINUED USE OF THE WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THE WORKER TERMS OF SERVICE. YOU CANNOT USE THE WEBSITE IF YOU DO NOT ACCEPT THE WORKER TERMS OF SERVICE. ALL SECTIONS OF THE WORKER TERMS OF SERVICE ARE APPLICABLE TO THE WORKER.
1.1. The Company’s Website which is accessed at www.dev.phakisaholdings.co.za is made available and owned by Phakisa Holdings (Pty) Ltd (bearing registration number 2019/569481/07) (hereinafter referred to as “the Company”, “Website”, “we”, “our” or “us”). Any reference to “the Company”, “we”, “our” or “us” shall include our employees, officers, directors, representatives, agents, shareholders, affiliates, subsidiaries, holding companies, related entities, advisers, sub-contractors, service providers and partners.
1.2. The Worker Terms of Service, including any document incorporated by reference herein, including, but not limited to the General Terms and Conditions and Privacy Policy (collectively, the “Terms”) apply to any Worker who offers the Worker Services, accesses, refers to, views and/or uploads or downloads any information or material made available on the Website for whatever purpose. These Worker Terms of Service govern the Worker’s relationship with the Company.
1.3. Accessing and/or use of the Website after the Effective Date will signify that the Worker has read, understands, accepts, and agrees to be bound, and is bound, by the Terms, in such Worker’s individual capacity and that the Worker being a natural person, is a Competent Person (as defined in the Protection of Personal Information Act, 4 of 2013, as amended).
2.1. The following terminology applies to these Worker Terms of Service:
2.1.1. “Application Form” shall mean the form found on the Website, and which is to be completed by a Browser who would like to become a Worker, for consideration by the Company;
2.1.2. “Browser” shall mean any person who visits any page of the Website, whether by landing at the home page or any other page through use of a hyperlink of another website or by direct access to the Website and who has not used the Services as made available by the Company through the Website;
2.1.3. “Client” shall mean either a natural person or an entity which acquires Worker Services through the Website or otherwise through the Company;
2.1.4.”Company” shall mean Phakisa Holdings (Pty) Ltd (Registration number: 2019/569481/07) a private company duly incorporated in accordance with the company laws of South Africa, as the provider and/or facilitator of the Services made available through the use of the Website;
2.1.5. “Company Services” shall mean the temporary employment labour broking services and other recruitment services as provided by the Company to the Worker, as detailed more fully in clause 5 below;
2.1.6.”Employment Agreement” shall mean an employment agreement as entered into between the Worker and the Company in the event of a Client procuring Worker Services from the Worker;
2.1.7. “General Terms and Conditions” shall mean those terms and conditions applicable to both the Client and the Worker, and which are available here:https://decidefunctional.co.za/cms/view/terms-and-conditions
2.1.8. “Log in Details” shall mean the Worker’s unique username and password used to access the Company Services, use the Website and access/use any ancillary services;
2.1.9. “Party” or “Parties” shall mean the Company or the Worker, or both, as the context implies;
2.1.10. “Registration Process” shall mean the process to be followed by a Browser on the Website once the Browser has been accepted as a Worker in order to enable the Worker to make use of the Company Services;
2.1.11. “Services” shall mean the Company Services and Worker Services collectively;
2.1.12. “Service Specification Form” shall mean the document completed by the Client on the Website setting out the Worker Services that it requires a Worker to fulfil;
2.1.13. “Remuneration” shall mean the amount(s) payable by the Company to the Worker in respect of the Worker Services rendered to the Client in terms of an Employment Agreement;
2.1.14. “Terms” shall mean these Worker Terms and Conditions read together with the General Terms and Conditions and Privacy Policy, which may be found here: https://decidefunctional.co.za/cms/view/terms-and-conditions AND https://decidefunctional.co.za/cms/view/privacy-policy respectively;
2.1.15. “Website” shall mean the Website as owned, hosted and managed by the Company on which the Worker’s Services are advertised and/or made available for acquisition by the Client and which is situated at the following URL: www.dev.phakisaholdings.co.za;
2.1.16. “Worker” shall mean a person, who is employed by the Company for the duration of the Worker Services, and who has passed the pre-qualified tests of the Client and who is deemed suitably qualified to render the Worker Services;
2.1.17. “Worker Profile” shall mean the profile of the Worker as made available on the Website, and which shall contain certain information pertaining to the Worker for consideration by Clients;
2.1.18.”Worker Terms of Service” shall mean these terms of service; and
2.1.19. “Worker Services” shall mean those skills as may be rendered by a Worker to a Client.
2.2. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to the same.
3.1. Prior to a Browser being accepted as a Worker by the Company, the Browser will be required to:
3.1.1. complete an Application Form;
3.1.2. Upload:
3.1.2.1. a current curriculum vitae together with substantiating documentation such as copies of degrees, diplomas, certificates or the like confirming the correctness of the curriculum vitae;
3.1.2.2. identity document and/or passport;
3.1.2.3. proof of residence;
3.1.2.4. driver’s licence; and
3.1.3. provide their nominated banking account details.
3.2. The Company reserves the right to call for additional documentation should it feel the need to do so, and failure to submit same may result in the Browser not being accepted by the Company as a Worker.
3.3. Upon receipt of the Application Form together with the additional documents and/or information, a representative of the Company shall review the Browser’s application, and:
3.3.1. should the criteria as set by the Company be met, an online interview shall be arranged with the Browser;
3.3.2. should based on the interview, the Browser appear to be eligible to be onboarded as a Worker, the Browser shall be placed on a shortlist and the Company may conduct certain background investigations in respect of the Browser such as, but not limited to criminal checks and credit checks; and
3.3.3. should the background checks be favourable, the Company shall then arrange an interview with the Browser, which shall be conducted via Skype, Zoom, Google meet or other digital platforms, alternatively face to face, if circumstances permit, at the discretion of the Company.
3.4. Should all of the above be met to the Company’s satisfaction, the Company shall categorise the Worker Services as may be provided by such a Browser, and the Browser shall be entitled (but not obliged) to make use of the Company Services.
3.5. Upon the Browser’s consent having been obtained, it shall make the transition from Browser to Worker and its Worker Profile shall be uploaded to the Website by the Company.
3.6. The Company shall not be obliged, but shall endeavour to contact Browsers who do not meet the criteria and advise them that their application has not been successful. Reasons for a Browser not being eligible to become a Worker shall include but not be limited to the following:
3.6.1. the Application Form and/or uploaded documents not meeting the Company’s criteria;
3.6.2. the failure of a Browser to provide additional documents as may be requested timeously or at all;
3.6.3. the background information not meeting the Company’s criteria; and/or
3.6.4. a Browser failing to attend an interview.
4.1. These Worker Terms of Service shall commence on the date on which the Client has successfully gone through the Registration Process and shall continue indefinitely until termination by –
4.1.1. completion of the Worker Services;
4.1.2. occurrence of a force majeure event as set out in clause 22 below;
4.1.3. the termination of the Worker Terms of Service Agreement by either Party in accordance with the provisions of clause 6 below or clause 4.1.1 above;
4.1.4. either Party in accordance with the provisions of clause 14 below; and/or
4.1.5. the Worker no longer wishes to provide Worker Services, on the proviso that it shall ensure that all Worker Services that it is currently rendering have been completed in full.
5.1. The Company provides the Worker with the following Company Services in order that it may make the Worker Services available to Clients:
5.1.1. the creation of and access to a Worker Profile which Clients may view and engage with a Worker through the Company to procure the Worker Services;
5.1.2. the maintenance and updating of the Worker Profile such as including additional qualifications, an update of Worker Services performed, ensuring that personal information remains correct, providing photos of the Workers Services (where same are of an artisanal nature), as well as the availability of a Worker;
5.1.3. managing payment of the Remuneration;
5.1.4. liaising with the Client on the Worker’s behalf to ensure that there are open lines of communication and that all complaints, queries and/or performance reviews are dealt with fairly and expeditiously; and
5.1.5. providing the Worker with a copy of the Service Specification Form as completed by the Client which sets out:
5.1.5.1. the nature of Worker Services to be provided;
5.1.5.2. the period that it requires the Worker Services to be provided for;
5.1.5.3. the place where such Worker Services would need to be performed;
5.1.5.4. if home-based services the equipment that the Worker would need in order to provide the Worker Services;
5.1.5.5. the days and hours on which the Worker Services will be required to be provided;
5.1.5.6. the Remuneration that the Client is prepared to pay for such Worker Services or other statutorily governed Remuneration structure applicable; and
5.1.5.7. any other information that the Client may feel is relevant relating to the specific Worker Services.
5.1.6. The Worker shall be given 1 hour to accept or reject the proposal contained in the Service Specification Form. In the event of a Worker unreasonably declining to provide Worker Services in respect of 3 or more prospective Clients, the Company may at its discretion elect to remove the Worker from the Website.
6.1. The Company, in providing the Company Services as set out in clause 5 above undertakes that it will comply with applicable legislation, which may include the deduction of PAYE and any other deductions that the Company is obligated to deduct by law from the Remuneration prior to payment being made to the Worker.
6.2. Neither Party is an agent of the other or has any authority to represent the other in any matters, except as expressly authorised in the Terms.
6.3. The Worker acknowledges and agrees that the continual or intermittent nature of the Worker Services does not give rise to the doctrine of legitimate expectation and even where the use of the Website regularly provides the Worker an opportunity to provide Worker Services, subject to the termination provisions as contained herein, the Company cannot guarantee a perpetual workflow to the Worker.
6.4. Nothing contained in the Terms shall be construed as creating a company, close corporation, joint venture, partnership or association of any kind whatsoever between the Parties, nor shall anything contained in the Terms be construed as creating or requiring any continuing relationship or commitment from any entity controlled, whether directly or indirectly by either one of the Parties or by any employees, agents, independent contractors or the like of either of the Parties.
6.5. Unless expressly authorised in the Terms, neither of the Parties (nor their respective agents) shall have the authority or right, nor shall any Party hold itself out as having the authority or right, to assume, create or undertake any obligation of any kind whatsoever, express or implied, on behalf of or in the name of the other Party.
6.6. The Worker shall not be considered an employee of the Company, unless and until such Worker is engaged in Worker Services for a Client, and shall only be an employee of the Company for the duration of such Worker Services.
7.1. By agreeing to these Worker Terms of Service, the Worker agrees to be bound by the Terms.
7.2. The Company grants the Worker a limited, revocable, non-transferable license to access and use the Website in accordance with the Terms which may govern such use and access.
7.3. To the extent that there exists any inconsistency between the terms of the Worker Terms of Service and the General Terms and Conditions, the terms herein shall prevail to the extent of any inconsistency unless expressly provided otherwise herein.
8.1. The Company shall make payment to the Worker of the Remuneration due to it, less any deductions which the Company is obliged to make in law, in respect of the Worker Services in arrears in accordance with any Employment Agreement as entered into between the Company and the Worker from time to time.
8.2. Should the Remuneration be regulated by a bargaining council / sectoral determination, the Parties agree to adhere to the rules of the relevant bargaining council / sectoral determination agreement.
9.1. The Worker undertakes that should it be placed in contact with a Client, they shall not attempt to circumvent or by-pass the Company in any manner and engage with the Client to the exclusion of the Company. Should a Worker do so, such Worker will be liable for a penalty amounting to the full Remuneration that would have been applicable in the event that such Worker Services were to have been rendered.
10.1. The Worker undertakes that upon agreeing to provide the Worker Services it shall familiarise itself with and adhere to the policies of the Client insofar as:
10.1.1. all provisions and precautions set in place by the Client relating to health and safety;
10.1.2. adhering to the Service Specification Form at all times which shall include timelines, milestones and the like.
10.2. The Worker further undertakes that all information provided by it to the Company shall be true and correct and that it shall update the Company of any changes to this information as soon as is reasonably possible thereafter.
10.3. The Worker shall carry out the Worker Services in a proper, loyal and efficient manner to the best of its ability. The Worker shall at all times act in good faith and use his best endeavours to properly conduct, improve, extend, develop, promote, protect and preserve the business interests, reputation and goodwill of both the Company and the Client.
10.4. The provisions of these Worker Terms of Service are and shall remain legally binding on the Parties and the obligations imposed on them pursuant to these Worker Terms of Service and constitute legal, valid and binding obligations, enforceable in accordance with the contents thereof.
11.1. Clauses which out of necessity or by implication herein survive termination of these Worker Terms of Service, shall remain in full effect despite the termination hereof.
12.1. The Company does not, nor is it under any obligation or duty to a Worker or anyone else to monitor, consider, evaluate, assess, review, screen, censor or remove any content on the Website. We do not have (and expressly disclaim) any liability in connection with any monitoring, consideration, evaluation, assessment, review, screening, censoring or removal of content posted on the Website, or the failure or refusal on the Company’s part to do so.
13.1. Notwithstanding any other provisions of these Worker Terms of Service, the Company reserves the right to terminate these Worker Terms of Service with immediate effect, for amongst other reasons, gross misconduct, incompetence, breach of the Worker Terms of Service, incapacity, dishonesty and /or any other offence committed by the Worker in terms of the law.
13.2. At the cessation of these Worker Terms of Service, the Worker will only be entitled to receive the Remuneration in respect of Worker Services already having been completed by it.
14.1. Either Party may, by giving notice to the other Party (Notifying Party), terminate the Terms, in whole or in part, as of a date set out in the notice of termination in the event that the other Party (Defaulting Party) commits:
14.1.1. a material breach of these Client Terms of Service, which breach is not remedied in terms of clause 15 below;
14.1.2. a material breach of these Client Terms of Service that is not capable of being remedied; or
14.1.3. numerous breaches of these Client Terms of Service that collectively constitute a material breach, even if remedied.
14.2. The Notifying Party shall have no liability to the Defaulting Party with respect to termination under this clause.
14.3. Notwithstanding the aforegoing, the Company may terminate these Worker Terms of Service for any reason or no reason on 7 (seven) calendar days’ notice to the Worker.
15.1. If either Party commits a breach of these Worker Terms of Service and fails to remedy such breach within 7 (seven) days of receipt of written notice requiring the breach to be remedied, then the Party giving notice shall be entitled, at its option, either to cancel these Worker Terms of Service and claim damages or alternatively to claim specific performance of all the defaulting Party’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
16.1. The Company and the Worker choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of these Worker Terms of Service, the following:
16.1.1. Company: 61 Barleria Crecent, Rietvlei, Pretoria info@decidefunctional.co.za
16.1.2. Worker: The address as provided when submitting the Applicant Form
16.2. Both the Company and the Worker may change their domicilium to any other physical address or email address by written notice to the other to that effect. Such change of address will be effective 7 (seven) days after receipt of notice of change of domicilium.
16.3. Any notice given in terms of these Worker Terms of Service shall be in writing and shall:
16.3.1. if delivered via email, be deemed to have been received on the date of dispatch;
16.3.2. if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery; and
16.3.3. if delivered by an internationally recognised courier service, be deemed to have been received by the addressee 3 (three) business days after dispatch.
16.4. Notwithstanding anything to the contrary contained in these Worker Terms of Service, a written notice or communication actually received by a Party from another shall be adequate written notice or communication to such Party.
17.1. During the existence of the Worker Terms of Service and the provision of the Worker Services, the Worker will acquire considerable confidential information relating to the Company and/or Client.
17.2. The confidential information is of considerable value to the Company and/or Client and the Company and/or Client has in the past and will in the future continue to protect such information.
17.3. It is understood and agreed that in the event that the Worker uses the confidential information, then the Company and/or Client will suffer a considerable loss.
17.4. In order to protect the interest of the Company and/or Client as set out above, the Worker undertakes that it will not during the currency of these Worker Terms of Service, and at any stage after the date of termination thereof, reveal to any person, firm, or corporation, the confidential information, procedures or dealings or any information concerning the functions, transactions or affairs of the Company and/or Client or any details of the Clients of the Company or the Company Services or Worker Services provided to them by the Company, and shall not use or attempt to use any such information in any manner which may injure or cause loss either directly or indirectly to the Company and/or Client, as the case may be, or may be liable to do so.
18.1. These Worker Terms of Service shall be regulated entirely by the laws of the Republic of South Africa and, in the event of a dispute, the Worker consents, at the Company’s sole and exclusive discretion to the jurisdiction of the Boksburg Magistrate’s Court of South Africa.
19.1. No contract varying, adding to, deleting from or cancelling these Worker Terms of Service, and no waiver of any right under these Worker Terms of Service, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.
20.1. The Terms constitute the whole terms between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein, are binding on the Parties.
21.1. Any provision in these Worker Terms of Service which is or may become illegal, invalid or unenforceable in any jurisdiction affected by these Worker Terms of Service shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of these Worker Terms of Service, without invalidating the remaining provisions of these Worker Terms of Service or affecting the validity or enforceability of such provision in any other jurisdiction.
22.1. If a Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Worker Terms of Service due to theft, strike, lock-out, load shedding, blackout, fire, explosion, flood, riot, war, vehicle accidents, act of nature, epidemic, pandemic, embargo, legislation, civil commotion, unrest, strikes or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of such Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue, but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages whether general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party. Any Party invoking force majeure shall upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party.
22.2. If the event continues for a period of 30 (thirty) days, either Party may then give notice of termination of the Workers Terms of Service, which termination shall take effect 7 (seven) business days after the giving of the notice.
Flexible and semi-flexible employees remain under Phakisa’s management, while the customer’s administrative staff typically manages permanent employees.
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