1. Conditions

These terms are the general terms of the relationship between us and you. The terms cover any transactions where we provide services or products to you. The commercial terms of any transaction will be contained in an order that will incorporate this contract. The order will prevail if there is a conflict of meaning. Nothing in the terms obligates any party to enter into any orders.

2. Duration

The terms commence on the Effective Date and continue until terminated. Each Order shall be effective from the Effective Date indicated therein and shall exist for the duration stipulated in such Order. No payment obligation or obligation to provide products or services shall arise between the parties in the absence of an Order.

3. Orders

3.1 General Conditions

No Order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Products and/or Services to the Client on which date the Contract comes into existence. The Client is responsible for ensuring that any purchase orders or other internal requirements of the Client are processed prior to placing an Order with the Company, including setting up Assessments on the website made available to the Client. The Company may require evidence that such requirements have been fulfilled prior to accepting an Order.

3.2 Invitation to do Business

The marketing of the services by us is merely an invitation to do business or for you to make an offer to procure services. The parties only conclude a valid and binding order when we accept the offer made by you. Unless proven to the contrary, we only accept an offer relating to services, when we begin providing the services. We may accept or reject any offer. If we do not accept any offer, then we will refund any monies already paid by you.

3.3 Deemed Order

You will be deemed to have placed an order in regard to services when you start consuming any services you have requisitioned automatically from the control panel, it being agreed that each click of a button to requisition a service constitutes a billable event.

3.4 Fees

Despite our best efforts, the stated fees may be incorrect. We will confirm the fees for any services when we accept your offer.

3.5 Time and Place

The parties conclude any contract between each other at the time when our duly authorised representative accepts the relevant offer and at the place where you have your head office.

3.6 Orders

Each order will create a separate contract. Despite that, we may consider the breach of any one order to constitute a breach of any or all orders.

3.7 Acceptance of Orders

An Order will be deemed accepted by the Client when:

  1. The Client returns a signed proposal and/or quotation to the Company and/or
  2. The Client communicates in writing that a proposal and/or quotation sent by the Company has been accepted and/or
  3. The Client instructs the Company in writing to deliver a product, service and/or system by a specified date and/or in a specified quantity.

4. Description

The descriptions of the Products and/or Services are set out in the Company’s statement of work, quotation, brochure, Website or other applicable literature. All drawings, descriptive matter, specifications and advertising issued by the Company are published for the sole purpose of giving an approximate idea of the Products and/or Services described in them. Such literature shall not form part of this Contract.

5. Delivery

No Order placed by the Client shall be deemed to be accepted by the Company until a written acknowledgement of Order is issued by the Company or (if earlier) the Company delivers the Products and/or Services to the Client on which date the Contract comes into existence. The Client is responsible for ensuring that any purchase orders or other internal requirements of the Client are processed prior to placing an Order with the Company, including setting up Assessments on the website made available to the Client. The Company may require evidence that such requirements have been fulfilled prior to accepting an Order.

Any dates quoted for delivery of the Products and/or Services are approximate only. The Company shall not be liable for any delay in delivery of the Products and/or Services that is caused by an event beyond its control (“Force Majeure event”) or the Client’s failure to provide the Company any instructions that are relevant to the supply of the Products and/or Services.

Provision of web-based electronic assessment Products and/or Services provided by the Company will be subject to service levels as set out in clause 8.6 of this Contract.

6. Fees

Unless otherwise agreed by the Company in writing, the fee for the Products and/or Services shall be those set out in the Company’s current price list, valid as at the date of Order, as available on request from the Company.

The fee for the Products and/or Services shall be exclusive of any costs or charges relating to postage, packaging, insurance, transport, travelling expenses and/or any applicable import and/or export duties which shall be paid for by the Client.

Any fees or rates quoted or estimated are exclusive of any applicable sales, or similar taxes. Expenses are charged in addition.

7. Payment

7.1 Settlement of Payments

All sums due under this Contract shall be paid by the Client in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If the Client deducts an amount in respect of taxes that the client is obliged to withhold by law, it is the clients responsibility to declare said amounts before the commencement of the proposal and contracting phase. This amount shall remain payable by the Client to the Company until the Client has provided evidence to the Company that the Client has paid the amount of the withholding to the respective Tax or other Government authority.

7.2 Due Dates

You will be liable for and pay the fees specified in the order and any additional fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the order.

7.3 Deemed Order

You must make payment in the manner specified.

7.4 Late Payments

Any additional surcharges and penalties specified will apply to any payment received after the due date to cover collection fees and additional administration costs. You must pay the surcharges and penalties to us on-demand. We may halt the provision of any services until you have paid all amounts that are due. Unless we otherwise agree in writing, payment for our Products and/or Services is due without any deduction (including withholding tax), within 30 days after the earlier of the delivery of our Services to you or the date of our invoice. In the event of late or non-payment, after 60 days we will automatically charge you default interest at a local rate of repo plus 3.5% per month from the due date for payment until the date on which payment is made. If no payment is received after 90 days we have the right to suspend our service until the full outstanding amount is settled. Should your account have a credit balance and it is not used within 12 months, we have the right to clear your account.

7.5 Appropriation

We may appropriate any payment received from you towards the satisfaction of any indebtedness of you to us under the contract.

7.6 Withhold Payment

You may not withhold payment of any amount due to us for any reason.

7.7 Certificate

A certificate, signed by an accountant appointed by us, of the amount due by you and the date on which it is payable will be proof of the correctness of the certificate’s contents.

7.8 Tax

All fees exclude any tax, which will be payable where applicable by you in addition to the fees.

7.9 Payment Profile

You and any signatory consent and agree that we may provide any registered credit bureau with information about the payment of amounts.

7.10 Reimburse Costs

If we suspend the service, you will pay to us the costs incurred by us (including redeployment, travel and associated expenses) in remobilising our employees affected by the contract and recommencing the services.

8. Online Services

8.1 Registration

Each Registered User must provide their full legal name, a valid email address, and any other information requested by us to complete the registration process. We will treat all such information in accordance with our Privacy Policy.

8.2 Access

Only Registered Users may access the service by using the credentials issued to them.

8.3 Registered User Obligations

Each Registered User agrees:

    • to keep their credentials secure;
    • not to provide access to any person other than a Registered User;
    • not to interfere with the functionality or proper working of the service;
    • not to introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into the service; and
    • not use the service for direct marketing, spamming, unsolicited communications, or other advertising or marketing activities prohibited by applicable law.

8.4 Administration Obligations

The administrator agrees:

    • not to use bots or other automated methods to register Registered User accounts;
    • to only create one account per email address per Registered User;
    • to make a list of all Registered Users available to us on request;
    • to immediately notify us in writing of any lost or compromised credentials of a Registered User;
    • to ensure that Registered Users who are no longer authorised to use the service do not use the service;
    • to take reasonable measures to ensure that Registered Users do not introduce any viruses, worm, logic bomb, trojan, wares, potentially unwanted program (PUP) or other malicious software into Online Assessment System and/or Technology.

8.5 Security

Each authorised user is responsible and liable for activities that occur under their account. You are liable for all actions carried out on the Website by your authorised users. You authorise us to act on any instruction given by an authorised user, even if it transpires that someone else has defrauded both us and you, unless you have notified us in writing us in terms of clause 9.4 of the loss of credentials prior to a fraudulent instruction being submitted. We are not liable for any loss or damage suffered by you attributable to an authorised user’s failure to maintain the confidentiality of their credentials. We shall implement commercially reasonable Technical and Organisational Security Measures to protect Your Data against the unlawful, unauthorised or accidental destruction, access and/or disclosure of Your Data. Such Technical and Organisational Security Measures shall be in line with generally accepted information security practices and standards.

8.6 Service Levels

Subject to you meeting your obligations, we will use all reasonable endeavours to ensure that the web-based electronic assessment services provided to you using our systems are available to you. We provide an intermediate service between you, our Client, and assessment product providers. As such, we do not always have full control of system availability or the capability to resolve problems immediately. We provide help desk support during business days and, in good faith, attempt to resolve enquiries within 24 hours, but cannot make a guarantee of resolving the problem.

9. Services

9.1 Grant of Right

We grant you a limited, non-exclusive, non-transferrable, revocable right to use our services in accordance with the terms and the terms of any third party contract. Any person wishing to use the services contrary to the terms or third party contract must obtain our prior written consent.

9.2 Consent to Monitoring

You consent to us monitoring your use of the service for security purposes and in order to ensure that the service is always running and functioning as it should.

9.3 Service Levels

We will provide the services to you at the service levels agreed in the order.

9.4 Third Party Software

Some software used in our services may be third party software that we will make available to you in accordance with third party software license terms. You agree that the use of the services is subject to these third party software license terms and that they may change from time to time. Please note that there may be provisions in the third party software license agreement that expressly override some of these terms.

9.5 Cancellation/Postponement of Service

When we agree to undertake a project for you, we make all necessary arrangements so that the appropriate personnel and resources are available on the agreed dates. If you subsequently wish to cancel or postpone the agreed project dates, we will discuss whether substitute work to replace the work that has been cancelled or postponed can be carried out on the days arranged for the original work. If it is not possible, our charges, unless otherwise agreed in writing by us, will be as follows:

  • Within 5 working days of start date: 100% of our fee
  • Within 10 working days of start date: 50% of our fee
  • Within 15 working days of start date: 25% of our fee.

10. Data Protection

10.1 We shall use personal data relating to Candidates (whether such information is provided directly by Candidates or by the Client) in the manner and for the purposes detailed in the Privacy Policy. You hereby authorise us to process the Personal Data only to the extent of performing our obligations under this agreement.

10.2 The Company warrants that it has made all necessary registrations of its particulars where required, in accordance with relevant data protection laws.

10.3 The Client warrants that it has made all necessary registrations of its particulars where required, in accordance with the data protection laws.

10.4 Subject to clauses 11.5 and 11.6 below, in respect of any Assessment Data and Identification (to the extent that it constitutes Personal Data) that is processed in connection with the Contract, the parties agree that they shall each be data controllers for the purposes of the Data Protection Laws and each party shall comply with its respective obligations under the Data Protection Laws and shall only process such data in connection with the Contract.

10.5 The parties acknowledge and agree that the Company will act as a processor in respect of the Assessment Data and Personal Data where the Company is carrying out the Client’s instructions to:

  • classify or categorize any Participant based on their Assessment results,
  • exclude any Participant from any part of the Assessment process,
  • omit any Participant Data from the Output, or
  • otherwise take any steps which may affect a Participant’s prospects of employment or have a similarly significant impact on a Participant.

10.6 The parties acknowledge and agree that the Company will act as a processor in respect of the Assessment Data and Personal Data (to the extent that such data has not been fully anonymized) when the Company carries out Services itself or through a sub-contractor and the Company shall process personal data under such Services in accordance with the Privacy Policy.

10.7 The Client will ensure that any and all decisions about the Participants on the basis of their Assessment results are made in a manner that complies with the Data Protection Laws and all other applicable laws.

10.8 The Client warrants that:

  • all fair processing notices have been given to any Participants and explicit consents obtained (as applicable) in accordance with the Data Protection Laws, and/or any local applicable data laws to which the Client is subject, for the Client to provide any Personal Data to the Company and for the Company to process such data for the purpose of providing the Products and/or Services; and
  • it will provide or make available to all Participants a copy of the Company’s Privacy Policy prior to undertaking Assessments.

10.9 The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct losses, all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the Client’s breach of this clause 11 and/or the Data Protection Laws to which the Client is subject.

10.10 Location of your data. You acknowledge that we make use of third party assessment providers and hosting companies that may be located in a country which does not have substantially similar or adequate Data Protection Laws.

10.11 Trans-border flows of your data. You consent to us transferring Your Data across a country border to enable us to comply with our obligations under the agreement

10.12 Indemnity. You agree to indemnify, defend, and hold us harmless (and those related to us and our personnel, co-branders or other partners) from and against any claim, demand, loss, damage, cost, or liability (including legal costs) arising out of or relating to you failing to comply with your obligations under this clause. If permissible under applicable law, legal costs will be on an attorney and own client basis.

10.13 Access. On a party’s reasonable written request, the other party will provide the requesting party with the information that it has regarding Your Data and its processing that is necessary to enable the requesting party to comply with its obligations under this clause and the applicable laws. The requesting party will reimburse the other party for its reasonable charges for its assistance.

10.14 Preservation of integrity of Your Data. Both of us will take reasonable precautions (having regard to the nature of each of our obligations under the agreement), to preserve the integrity of Your Data and prevent any unauthorised access, corruption or loss of Your Data.

10.15 Records. You agree that our records are prima facie evidence of the services supplied to you.

10.16 Anonymisation. The parties agree that within a reasonable time after termination of the Order, the Company may anonymise Your Data and use it for purely statistical purposes.

10.17 Reporting Breaches. We shall immediately report to You any information security breach suffered by us or suffered by an online assessment provider or associate. Such notification must be sent to your primary contact email as specified in this agreement. We further agree to abide by such incident management processes as You may prescribe in writing to Us.

11. Intellectual Property and Limited License

11.1 The Client shall retain ownership of all Existing Material provided to the Company by the Client or its representatives and the Intellectual Property Rights in that Existing Material.

11.2 The Company shall own all Intellectual Property Rights arising out of or in connection with the Contract (including any Intellectual Property Rights subsisting in the Personal Data, Assessment Data, Research Data and any other data created or collected in connection with the Contract and/or material produced by the Company in connection with the Contract and the Output). The Company shall retain the intellectual property rights in any Existing Materials provided by the Company to the Client and the skills, know-how and methodologies used or acquired during the course of providing any of the Services.

11.3 Subject to payment by the Client of all sums due under the Contract, the Company hereby grants to the Client a perpetual, revocable, worldwide, royalty-free, non-exclusive, license to use the Outputs of any Products for the Client’s own internal human resource management purposes. The Services, including the Product outputs and any material provided during the performance of the Services, are provided solely for the intended purpose and may not be referenced or distributed to any other party without our prior written consent.

11.4 The Company grants to the Client a limited, non-exclusive, non-transferable right to access the Website upon the Website’s Terms of Use.

11.5 IP ownership. Any intellectual property rights in our Services and Products created by us in the course of the performance of our Services or otherwise shall remain our sole property. You shall at all times remain the owner of any property (including intellectual property) that you provide to us.

11.6 Retention of rights. We have created, acquired or otherwise obtained rights in our technology and despite anything contained in the agreement, we will own all right, title, and interest in our technology.

11.7 Use of our technology. If we utilise any of our technology in connection with our performance under an order, our technology will remain our property and you will not acquire any right or interest in it.

11.8 Trademarks. Our logo and sub-logos, marks, and trade names are our trademarks and no person may use them without permission. Any other trademark or trade name that may appear on our marketing material is the property of its respective owner.

12. Our Warranties

12.1 Service warranties. We warrant that in relation to the services:

  • We and our personnel will possess and have the right to use knowledge and expertise sufficient to enable us to provide the services.
  • We will employ a sufficient number of suitably trained personnel to provide the services and to achieve the service levels.
  • We will provide the services in accordance with all applicable laws, enactments, and regulations.

12.2 General warranties. We warrant further that:

  • We have the legal right and full power and authority to execute and deliver, and to exercise our rights and perform our obligations under the contract.
  • We and our personnel will not knowingly introduce any malicious software into your material or your system.

13. Disclaimer of Warranties

13.1 Disclaimer. You use our services at your sole responsibility and risk. We provide the services on an “as is” and “as available” basis. Except for the warranties given in this contract and to the extent allowed by law, we expressly disclaim all representations, warranties, or conditions of any kind, whether express or implied, including:

  • any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement;
  • any warranties regarding third party software; or.
  • that the services will meet your requirements or be uninterrupted, legally effective or complete, timely, secure, error-free or free from infection by malicious software. You should keep up-to-date security software on any systems used to access the Website.

13.2 Exclusion of liability. Despite any warranty we give, we will not be liable regards any defect arising from your negligence, failure to follow our instructions (whether oral or in writing) or misuse.

14. Your Warranties - You warrant that:

14.1 you have not been induced to enter into the contract by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in the contract;

14.2 by entering into an order you are not acting in breach of any contract to which you are a party; and you agree to indemnify, defend, and hold harmless us (and those related to us and our personnel, co-branders or other partners) from and against any claim for damages by any third party as a result of the breach of these warranties, including all legal costs. If permissible under applicable law, legal costs will be on an attorney and own client basis.

15. Intellectual Property Infringement

15.1 Defence. We will defend you against any claims made by an unaffiliated third party that any Services infringe its patent, design, copyright, or trade mark and will pay the amount of any resulting adverse final judgment (or settlement to which we consent). We will reimburse you with all costs you reasonably incurred in connection with assisting us with the defence of the action. You will promptly notify us of the claim in writing and we will have sole control over its defence or settlement.

15.2 Exclusion. We will not be liable for any claim that arises out of goods or services you select and acquire from third parties.

15.3 Survival. This clause (15 above) will survive termination of the contract.

16. Limitation of Liability

16.1 Direct damages limited. To the extent permitted by applicable law, regardless of the form (whether in contract, delict or any other legal theory) in which any legal action may be brought, our maximum liability to a you for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by you to us for the services related to the claim. The aggregate amounts for all claims will not be greater than this maximum amount.

16.2 Indirect damages excluded. To the extent permitted by applicable law, in no event will we (or our personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the contract.

16.3 Exclusions. The limitation contained in this clause will not apply to any breach by a party of the other party’s proprietary or confidential information or intellectual property or damages arising from a party’s gross negligence.

16.4 We are not liable for your default. We will not be liable for any loss or damage suffered by you arising out of or in connection with any breach of the contract by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.

16.5 Other goods or services. We are not liable for any other deliverable, including website, goods, or service provided by any third party.

16.6 Indemnity. We agree to indemnify, defend and hold you (and your personnel) harmless against any and all:

  • loss of or damage to any property or injury to or death of any person; and
  • loss, damage (including attorneys’ fees on an attorney and own client basis), costs and expenses that you may suffer or incur arising directly or indirectly from: (i) any wilful misconduct or fraud of us or our personnel; or (ii) a breach by us of your proprietary or confidential information, or intellectual property.

16.7 Liability. Without limiting liability, neither party will be liable to the other for any loss that it may suffer as a result of theft, fraud, or other criminal act by a party or its personnel.

17. Breach and Termination

If a party:

  • does not fix any breach of this contract (failure to comply with it) within seven days of receiving written notice from the other party to do so;
  • breaches this contract materially twice or more in any six month period;
  • is insolvent (bankrupt), or has some legal disability, for example, if they are placed under administration;
  • takes steps to deregister itself (close down) or is deregistered;
  • makes any settlement or arrangement with its creditors; or
  • fails to pay a court order against it (does not satisfy a writ of execution) within 21 days;

then the other party may, without prejudice to any of its rights:

  • claim specific performance of this contract (make the party comply with this contract); or
  • immediately cancel this contract in writing; and
  • claim damages from the other party, including any claim for any fees already due.

18. Suspension of Service

18.1 Immediate suspension. We may immediately suspend your right to use any of the services and/or Websites and/or Online Assessment System in any of the following circumstances:

  • You attempt a denial of service attack on any of the Websites and/or Online Assessment System;
  • You seek to hack or break any security mechanism on any of the Websites and/or Online Assessment System;
  • We determine in our sole discretion that your use of the services and/or Websites and/or Online Assessment System poses a security threat to us, or to any other user of the services and/or Websites and/or Online Assessment System;
  • You otherwise use the services in a way that disrupts or threatens the Websites and/or Online Assessment System;
  • We determine, in our sole discretion, that there is evidence of fraud with respect to your account;
  • We receive notice, or we otherwise determine, in our sole discretion, that you may be using the services and/or Websites and/or Online Assessment System for any illegal purpose or in any way that breaches the law or infringes the rights of any third party;
  • We determine, in our sole discretion, that our provision of any of the services and/or Websites and/or Online Assessment System to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.

18.2 Preservation of data (suspension). In the event that we suspend your access to any services, we will not take any action to intentionally erase any of your data in our possession during the period of suspension and the fees will continue to accrue.

19. Termination

19.1 Termination for good cause. We may immediately terminate this contract at any time by giving you notice in writing if:

  • we discontinue the services;
  • we believe providing the services could create an economic or technical burden or material security risk for us;
  • termination is necessitated by us having to comply with the any applicable law or requests of governmental entities; or
  • we determine that your use of the service or the provision of any of the services to you has become impractical or unfeasible for any legal or regulatory reason.

19.2 Duties on termination On termination, cancellation, or expiry of this contract:

  • we will stop providing the services;
  • your access rights will cease to exist; and
  • your data will be erased, unless we have agreed to provide you with post termination assistance in writing.

19.3 Survival. The termination, cancellation, or expiry of this contract will not affect the enforceability of the terms that are intended to operate after expiry or termination.

20. Effect of Termination

20.1 Amounts due to us become due and payable. On termination, cancellation, or expiry this contract, all amounts due to us for services rendered before termination will become due and payable even if we have not yet invoiced them. You may not withhold the amounts for any reason, unless the arbitrator directs otherwise.

20.2 Post termination assistance. Following termination, you may take advantage of any post-termination assistance that we may generally make available. We may provide you with post-termination assistance, but we will not be under an obligation to do so. Your right to take advantage of any post termination assistance will depend on your acceptance of and compliance with any additional fees and terms that we may impose for such assistance.

20.3 No expectation. We acknowledge and confirm that no expectation has been created by anyone, by the contract or any other contract, entitling us or you to expect:

  • the renewal or extension of the term of any contract; or
  • the conclusion of any further contract between you and us or our personnel.

20.4 Survival. The termination, cancellation, or expiry of this contract will not affect the enforceability of the terms that are intended to operate after expiry or termination.

21. Resolving Disputes

21.1 Notifying each other. There will be a dispute about or from this contract if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:

  • negotiation (direct talks to try and agree how to end the dispute); failing which
  • mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
  • arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).

21.2 Negotiation.Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written contract within 15 more business days.

21.3 Mediation.If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.

21.4 Arbitration.If mediation fails, the parties must refer the dispute within 15 business days to arbitration (including any appeal against the arbitrator’s decision). under AFSA’s latest rules for expedited arbitrations. The arbitration will be held in English in Pretoria South Africa. The parties will agree and appoint one arbitrator. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.

21.5 Agree otherwise in an order.The parties may agree otherwise in an order.

21.6 Periods.The parties may agree in writing to change the periods for negotiation or mediation.

21.7 Urgent interim relief. This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court order).

21.8 Severability. This clause is separate and divisible from the rest of this contract and remains effective even if this contract ends or is invalid.

22. Notices and Domicile

22.1 Notices. The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address or number given in the specific terms.

22.2 Service (delivery) address for legal documents. Each party chooses its street addresses and numbers as its domicilium citandi et executandi (its address for the service of any document used in legal action) for this contract.

22.3 Change of addresses or numbers. Each party may change the addresses or numbers in the specific terms to any other addresses or numbers by writing to the other party 14 days before the change.

22.4 Deemed delivery. Notice will be considered to be delivered on the date shown on any hand-delivered, prepaid registered post, courier, fax or email confirmation of delivery.

22.5 Notice actually received. If a party actually receives any notice or other communication, this will be good enough.

23. Force Majeure

23.1 Parties not liable. No party will be responsible for any breach of this contract caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.

23.2 Party affected to notify other party. If there is an event of force majeure, the party affected will tell the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities under this contract. The parties will continue to comply with the responsibilities that are not affected by the circumstances.

23.3 Right to cancel. If a party cannot fulfil a material (significant) part of its responsibilities under this contract for more than 60 days because of force majeure, the other party may cancel this contract by written notice.

24. Assignment and Subcontracting

24.1 No assignment. No party may delegate its duties under this contract or assign its rights under this contract, in whole or in part. We may assign this contract to any successor or purchaser of its business or some of its assets.

24.2 Exception. Despite this clause, we may cede and assign all rights and obligations under this contract to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.

24.3 Our third party contractors. We may sub-contract or delegate our obligations under this contract to third party contractors. We will remain liable for performance of the third party contractors. No one may require us to disclose the terms (including payment terms) of any sub-contract entered into with respect to our obligations under this contract.

25. Relationship

25.1 No temporary employment service or partnership. Nothing in this contract will be construed as constituting a temporary employment service or as creating a partnership between the parties and no party will have any authority to incur any liability on behalf of the other or to pledge the credit of the other party.

25.2 No employment relationship. Each party enters into the contract as an independent contractor. The contract does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.

26. General

26.1 Entire agreement. The contract is the entire agreement between the parties on the subject.

26.2 Changes to the terms. We may change the terms at any time and where this affects your rights and obligations, we will notify you of any changes by placing a notice in a prominent place on our website or by email. If you do not agree with the change you must stop using the services. If you continue to use the services following notification of a change to the terms, the changed terms will apply to you and you will be deemed to have accepted such terms.

26.3 Changes to any third party software license contract. We will notify you of any changes to any third party software license terms by placing a notice in a prominent place on our website, or notifying you by email. The updated third party software license terms will be effective immediately and you will be deemed to have accepted them upon notification.

26.4 Acceptance of changes. If you do not agree with the changes, you must stop using the service. If you continue to use the service following notification of a change, the changed terms will apply to you and you will be deemed to have accepted them.

26.5 Waiver (giving up of rights). Any favour we may allow you will not affect or substitute any of our rights against you.

26.6 Severability. If any term is void (invalid), unenforceable, or illegal, the term may be severed (removed) from and will not affect the rest of this contract if it does not change its purpose.

26.7 Governing law. South African law governs this contract.

26.8 Jurisdiction. You consent to the jurisdiction of the Magistrate’s Court in respect of any action or proceedings that we may bring against you in connection with this contract, even if the action or proceedings would otherwise be beyond its jurisdiction without prejudice to our right to institute any action in any other court having jurisdiction.

26.9 Non-exclusivity. We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.

26.10 Publicity. A party will not make any announcement or statement to the press about this contract, without first getting written permission from the other party.

27. Definitions and Interpretation

Definitions. In these terms and conditions the following words will have the following definitions:

additional fee means a charge you must pay us for the supply of any services outside of an order, which charge must be made at our then current standard prices and rates, unless otherwise agreed in writing between us;

administrator means an authorised user in your employ who is authorised to provision, manage and administer and use or website services;

assessment means any of the questionnaires or tests made available by the Company or the Client to a Participant further to this Contract;

assessment data any data relating to the Participant (including Personal Data and Special Categories of Personal Data) collected through the Particpant’s use of the Products or Assessments via our website or consulting services;

assessment product provider means any provider of assessments that owns the legal right to distribute, sell, and/or re-sell that product

AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead);

contract means the contract between us and you, consisting of the terms and any orders the parties enter into;

registered user means you or an authorised user in your employ where you are a juristic person, who has been assigned credentials;

business day means any day other than a Saturday, a Sunday or a holiday (including a public or bank holiday) in the jurisdiction where our entity that entered into the relevant order is organised;

business hours means our normal business hours on business days 08:00am until 04:30pm;

participant means any respondent to an assessment;

company means TTS (Top Talent Solutions) (Pty) Ltd registered in South Africa.

contract year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;

control panel means the section on the website accessible by you through a web browser;

credentials means a unique user ID and password that has been assigned to a Registered User;

data protection laws mean the General Data Protection Regulation (Regulation (EU) 2016/679), all national implementation laws in respect of the same, and any other laws and regulations relating to data protection or the privacy of individuals that are applicable to the processing of Personal Data under the Contract;

effective date means in respect of each order, the effective date stipulated in each order, or in the absence of which, it will be the date the order is accepted by us.

existing material means any code, forms, algorithms or materials developed by or for either party independently and outside of the contract and provided to the other party during the course of the contract;

fees means the fees, charges, or purchase consideration that you will pay to us in respect of services or products we provide under orders;

ICT means information, communication or technology;

intellectual property rights means copyright, rights to inventions, related rights, trademarks, service marks, trade, business, domain names, patents, rights in trade dress or get-up rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, algorithms, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extension of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

online assessment system means the system or systems as hosted and operated on www.tts-assess.com which system is used to conduct assessments;

order means a services order agreed to and signed or agreed to in writing, by both the parties describing the specific services or products that we will provide to you and that contains at minimum the specifications of products/services/systems required and quantity and price of products/services/systems;

our technology means any technology that we have created, acquired or otherwise have rights in and may, in connection with the performance of our obligations under the contract, employ, provide, modify, create or otherwise acquire rights in and includes any: concepts or ideas; methods or methodologies; procedures or processes; know-how or techniques; function, process, system, data, or object models; templates; the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs; general purpose consulting and software tools, utilities, routines or frameworks; logic, coherence and methods of operation of systems; and patches or enhancements to open source libraries;

output means any data or reports the Company produces and provides to the Client as part of a Service: (i) about Participants; or (ii) further to any consultancy Services undertaken by the Company;

personnel means any director, employee, agent, affiliate, consultant, contractor or other representative;

personal data will have the meaning ascribed to it in the Data Protection Laws

privacy policy means the Company’s privacy policy as displayed on our Website;

products means any products or systems (including Restricted Products) supplied to the Client by the Company (including any part or parts of them);

registered user means the person designated by a Client to fulfil the role of user to enable such a user to schedule assessments via the Online Assessment System and to view and download Outputs and who has been issued a username and password

related and related persons means natural and juristic persons who are connected to one another;

research data any optional biographical data, Personal Data, special categories of Personal Data, and other data, including equality and diversity data such as gender, age and cultural background provided by the Participant or Client;

services means any services we or related persons provide to you, under orders, including but not limited to the provision of products;

service levels means the levels according to which we will provide each service as agreed by parties in writing and signed;

tax means any:

  • tax (including value added tax, income taxes, pay-as-you-earn tax or other taxes levied in any jurisdiction);
  • duty (including stamp duty);
  • tariff, rate, levy; or
  • any other governmental charge or expense payable;

terms means the terms, consisting of:

  • these terms of service; and
  • any other relevant specific terms, policies, disclaimers, rules and notices that the parties agree on, (including any that may
  • be applicable to any specific services);

third party contractor means any contractor, supplier, service provider or licensor of a part of the services, which is not a party to the contract;

weus, or our means TTS that enters into an order and, if specified in the order, those related to it;

website/s refers to www.tts-assess.com or www.tts-talent.com including all subdomains for these websites;

third party software means all third party software owned by a third party but legally licensed to us for use in providing the services.

writing means the reproduction of information or data in physical form (includes handwritten documents, hard copy printouts and fax transmissions) or any mode of reproducing information or data in electronic form that the parties agree to use (like pdf), but excludes information or data in the form of email;

you or your or “client” means the customer that enters into an order and, if specified in the order, those related to it;

your data means the data (Personal Data about a Participant) that:

  • the Client (or any third party on its behalf) provides to us or representatives of us; or
  • a Participant provides to us when completing an Assessment; or
  • data that we generate, process, or supply to you in providing the services; but excludes any derived data formulas that we create for our own internal purposes or which is proprietary or confidential to us or our third party contractors and assessment providers;

27.1 Definitions in the order. Words defined (or assigned a meaning) in an order will have that meaning in the terms, unless the context clearly indicates otherwise.

27.2 Interpretation. All headings are inserted for reference purposes only and must not affect the interpretation of the contract. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the contract will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended. A reference to a person includes a natural and juristic person and a reference to a party includes the party’s successors or permitted assigns. Unless otherwise stated in the contract, when any number of days is prescribed in the contract the first day will be excluded and the last day included. The rule of construction that an contract must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.

27.3 Conflict. If there is a conflict of meaning between these terms and any order, the order will prevail in respect of your use of the relevant services.

28. Contact Information

To contact us, please mail us at:

Company Physical Address:

Block 6, Suite 6-102, Monument Office Park, 71 Steenbok Ave.
Monument Park, Pretoria, Gauteng, South Africa, 0181

Email: privacy@tts-talent.com

Last Updated: 31 August 2018

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