Terms and Conditions of Use
These Terms contains the global terms of the relationship between us and you. The terms cover any transactions where we provide Services to you. The specific Statement of Work of any Request by you will be contained in an Order that will incorporate these Terms. The Order will prevail if there is a conflict of meaning with these Terms. Nothing in these Terms obligates any party to enter into any Order.
The Agreement commences on the date of signature by us in these Terms and continues 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 Services shall arise between the parties in the absence of an Order.
2. Orders for Services
2.1 General Conditions
Subject to clause 7.3, no Request made by the Client shall be deemed an Order until we have provided you with a Proposal which you accept or (if earlier) we deliver the Services to you on which date these Terms takes effect. You are responsible for ensuring that any purchase orders or other internal requirements of the Client are processed prior to accepting a Proposal or making a Request. We may require evidence that such requirements have been fulfilled prior to executing an Order. The accepted Proposal constitutes an Order.
2.2 Invitation to do Business
The marketing of Services by us is merely an invitation to do business or for you to request Services. The parties only conclude a valid and binding Order once we have provided you with a Proposal which you have accepted. We may accept or reject any Request.
2.3 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 of our Online Assessment System, it being agreed that each click of a button to requisition a Service may constitute a billable event.
We will confirm the Fees for any Services when we provide you with a Proposal. If any Fees are incorrect, we will notify you and shall provide you with an opportunity to confirm in writing that you are proceeding with the Order.
2.5 Time and Place
The parties conclude any Order at the time when your duly authorised representative accepts the relevant Proposal and at the place where you have your head office.
Each Order will create a separate contract. We may consider the breach of any one Order to constitute a breach of any or all other Orders.
2.7 Acceptance of Orders
A Proposal will be deemed accepted by you and an Order constituted when:
- You return a signed Proposal to us and/or
- You communicate in writing that a Proposal sent by us has been accepted and/or
- You instruct us in writing to deliver a Service by a specified date and/or in a specified quantity and/or
- You start consuming any Services you have requisitioned automatically from the control panel of our Online Assessment System.
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.
3. Publications and Descriptions
The descriptions of the Services are set out in our Proposal and/or Statement of Work. All drawings, descriptive matter, specifications and advertising issued by us, published in marketing material, Websites or other applicable literature are for the sole purpose of giving an approximate idea of the Services described in them (“publications”). Such publications shall not form part of these Terms.
- We shall deliver the Services to/at the location set out in the Order at any time after we notify you that the Services are ready for delivery.
- We shall not be liable for any delay in delivery of the Services if such delay is caused by an event beyond its control (“Force Majeure event”) or your failure to provide us with any instructions that are relevant to the supply of the Services.
- Provision of web-based electronic assessment Services provided by us will be subject to Service Levels as set out in these Terms or any specific Order.
- Validity Unless otherwise agreed by us in writing, the Fee for the Services shall be those set out in our current price list or in the Proposal, valid as at the date of the Proposal and 30 days thereafter.
- Exclusions The fee for the 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 you, provided that we have obtained your prior written approval before incurring such costs and/or charges.
- Tax Any Fees or rates quoted or estimated are exclusive of any applicable country specific fees, duties, sales, or similar taxes.
6.1 Settlement of Payments
All sums due under these Terms or any specific Order shall be paid by you in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If you deduct an amount in respect of taxes that you are obliged to withhold by law, it is your responsibility to declare said amounts before making a Request or accept a Proposal. This amount shall remain payable by you to us until you provided a certificate of the local tax authority as evidence to us that you have paid the amount of the withholding to the respective Tax or other Government authority.
6.2 Due Dates
You will be liable for and pay the undisputed fees specified in the Order and any additional agreed Fees promptly on the due date, without any deduction, set off or demand and free of exchange in the currency specified in the Order.
6.3 Manner of payment
You must make payment in the manner agreed in an Order.
6.4 Disputed fees.
If you dispute one or more Fees in an invoice, you must notify us, in writing, within 14 (fourteen) days of receipt of the relevant invoice. The notice must specify the particular disputed fees and the reason for disputing such fees. If you have not already done so, you must pay the undisputed portion of the invoice by the applicable due date. The parties will seek to resolve any invoicing dispute promptly and in good faith. If the parties are unable to resolve an invoicing dispute, the dispute shall then be resolved in terms of the dispute resolution provisions of these Terms.
6.5 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 undisputed amounts that are due. Unless we otherwise agree in writing, payment for our Services is due without any deduction (including withholding tax), within 30 days after the invoice date. 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 year 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.
We may appropriate any payment received from you towards the payment of any outstanding undisputed Fees that has become due to us under these Terms.
6.7 Withhold Payment
You may not withhold payment of any undisputed amount due to us for any reason.
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 prima facie proof of the correctness of the certificate’s contents.
All Fees exclude any tax, which will be payable where applicable by you in addition to the Fees.
6.10 Reimburse Costs
If we suspend the Service due to a material breach by you and after we have provided you with a reasonable opportunity to remedy such breach and you have failed to remedy the breach, you will pay to us the costs incurred by us (including redeployment, travel and associated expenses) in remobilising our employees related to the Order and recommencing of the Services at a later time.
7. Online Services
Only Registered Users may access the service by using the credentials issued to them.
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.
ObligationsThe 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, after becoming aware of such lost or compromised credentials;
- to ensure that Registered Users who are no longer authorised to use the service do not use the service.
Each Registered 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 Registered Users. You authorise us to act on any instruction given by a Registered User, even if it transpires that someone else has defrauded both us and you, unless you have notified us in writing 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 a Registered User’s failure to maintain the confidentiality of their credentials.
7.6 Data Protectio
We shall implement appropriate measures to protect Your Data against the unlawful, unauthorised or accidental destruction, access and/or disclosure of Your Data. Such measures shall be in line with generally accepted information security practices and standards.
7.7 Service Levels (Online services)
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 Third-Party 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.
7.8 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.
8. Data Protection
8.1 Purpose of use
The parties mutually agree not to disclose or communicate, in any manner, either during or after these Terms, Confidential Information about either Party. The parties acknowledge that this information is material and confidential and that it affects the profitability of both parties.
Each party shall use the other party’s Confidential Information solely in accordance with its performance of its obligations under these Terms.
9.3 Legal order
Each party shall be entitled to make any disclosure required by any applicable laws or by any order of a court or tribunal of competent jurisdiction, provided that the party making the disclosure (i) advises the other party prior to making the disclosure to enable the other party to take whatever steps it deems necessary to protect its interest in this regard; and (ii) only discloses that portion of the Confidential Information which it is legally required to disclose and uses its reasonable endeavors to protect the confidentiality of such Confidential Information to the widest extent possible in the circumstances.
This clause will survive termination of the Agreement.
10. Intellectual Property and Limited License
10.1 Our IP ownership
Any intellectual property rights in our existing Services (Existing Material) or created by us in the course of the execution of an Order (New Material) or otherwise shall remain our sole property.
10.2 Your IP Ownership
You shall at all times remain the owner of any property (including Intellectual Property) that you provide to us.
10.3 Website Rights
10.4 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.
10.5 Use of Our Technology
If we utilise any of Our Technology in connection with our performance under an Oder. Our Technology will remain our property and you will not acquire any right or interest in it.
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 and we warrant that we have the rights to display such other trademark or trade name on our marketing material.
11. Intellectual property infringement
We will indemnify and defend you against any liabilities, losses, costs and expenses incurred by you in connection with any claims made by a third party that any Service infringes any intellectual property rights, 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 not be liable for any claim that arises out of goods or services you select and acquire from third parties, except if we provided such goods or services to you.
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.
- all Services will be provided using reasonable skill and care, and in accordance with good industry practice, using suitably skilled and experienced personnel;
- 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 these Terms or any specific Order.
- We and our personnel will not knowingly introduce any malicious software into your material or your system.
13. Disclaimer of Warranties
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 these Terms 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. You should keep up-to-date security software on any systems used to access our Services and Websites.
13.2 Exclusion of liability
Despite any warranty we give, we will not be liable regards any failure to follow our instructions (whether oral or in writing) or misuse.
14. Your Warranties
14.1 Prior representations
You warrant that you have not been induced to enter into these Terms or Orders by any prior representations, warranties or guarantees (whether oral or in writing), except as expressly contained in these Terms or resulting Orders.
You warrant that by entering into these Terms or by placing any 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 or legal costs by any third party as a result of the breach of these warranties. If permissible under applicable law, legal costs will be on an attorney and own client basis.
15. Limitation of Liability
15.1 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.
15.2 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 Agreement.
The limitations 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;
- damages arising from a party’s gross negligence;
- personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;
- fraud or fraudulent misrepresentation; or
- any other liability to the extent the same cannot be excluded or limited by law.
15.4 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 Agreement by you or any act, misrepresentation, error or omission made by or on behalf of you or your personnel.
15.5 Other goods or services
We are not liable for any other deliverable, including website, goods, or service provided by any third party, except if we provided such deliverable to you.
In the event that either party:
- does not remedy any breach of these Terms (failure to comply with it) within 10 days of receiving written notice from the other party to do so;
- breaches these Terms 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 and/or appeal a court order against it (does not satisfy a writ of execution) within 21 days of becoming aware of such court order;
then the other party may, without prejudice to any of its rights:
- claim specific performance of these Terms or any Order or
- immediately cancel a specific Order or these Terms in writing; and
- claim damages from the other party, including any claim for any fees already due.
17. Suspension of Service
17.1 Immediate suspension
We may immediately suspend your right to use any of the Services and/or Websites 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 and reasonable discretion that your use of the Services and/or Websites poses a security threat to us, or to any other user of the Services and/or Websites;
- You otherwise use the Services in a way that disrupts or threatens the Websites;
- We determine, in our sole and reasonable discretion, that there is evidence of fraud with respect to your account;
- We receive notice, or we otherwise determine, in our sole and reasonable discretion, that you may be using the Services and/or Websites 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 to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason.
17.2 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.
17.3 Fees during suspension
If we agreed a set monthly fee for Services, then such fees will remain payable during the period of suspension.
18.1 Termination for good cause
We may immediately terminate these Terms or any specific Order at any time by giving you notice in writing if:
- we or one of our suppliers discontinue the Service;
- termination is necessitated by us having to comply with any applicable law or requests of governmental entities.
18.2 Duties on termination
On termination, cancellation, or expiry:
- we will stop providing the Service that has been terminated, cancelled or expired;
- your access rights to the Online Assessment System or Website will cease to exist; and
- we will, subject to anonymisation requirements set out in these Terms, anonymise your data, unless we have agreed otherwise in writing.
19. Effect of Termination
19.1 Amounts due to us become due and payable
On termination, cancellation, or expiry of these Terms, 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 otherwise instructed as the result of any dispute resolution process.
19.2 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.
19.3 No expectation
We acknowledge and confirm that no expectation has been created by anyone, by these Terms 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.
The termination, cancellation, or expiry of these Terms will not affect the enforceability of the terms that are intended to operate after expiry or termination.
20. Resolving Disputes
20.1 Notifying each other
Either party can declare a dispute by notifying the other party of such dispute. 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).
Each party must make sure that their chosen representatives meet within 10 business days of notification of the dispute, to negotiate and try to end the dispute by written agreement within 15 more business days.
If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
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.
The parties may agree in writing to change the periods for negotiation or mediation.
20.6 Urgent interim relief
This clause will not stop a party from applying to court for urgent interim relief while the dispute resolution process is being finalised.
This clause is separate and divisible from the rest of these Terms and remains effective after termination or if these Terms is found to be invalid.
21. Notices and Domicile
The parties will send all notices, authorisations, disclosures, acknowledgements, or requests by hand delivery, prepaid registered post, fax, or email to an address agreed between the parties in writing using the prescribed form.
Each party chooses its street addresses and numbers as its domicilium citandi et executandi.
21.3 Change of addresses or numbers
Each party may change the addresses or numbers to any other addresses or numbers by writing to the other party 14 days before the change.
21.4 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. Force Majeure
22.1 Parties not liable
No party will be responsible for any breach of these Terms or the execution of any Order caused by circumstances beyond its control, including flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions, or acts of God.
22.2 Party affected to notify other party
If there is an event of force majeure, the party affected will inform the other immediately, and they will meet within seven days to negotiate other ways to carry out any affected responsibilities. The parties will continue to comply with the responsibilities that are not affected by the circumstances.
22.3 Right to cancel
If a party cannot fulfil a material part of its responsibilities related to these Terms or an Order for more than 60 days because of force majeure, the other party may cancel these Terms or an Order in writing.
23. Assignment and Subcontracting
23.1 No assignment
No party may delegate its duties or assign its rights under these Terms, in whole or in part without the consent of the other party, which consent may not be unreasonably withheld. We may assign these Terms or Orders taken under these Terms to any successor or purchaser of our business.
Despite this clause, we may cede and assign all rights and obligations under these Terms to a related person without your prior written consent, provided that we notify you within a reasonable time of the event occurring.
23.3 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.
24.1 No temporary employment service or partnership
Nothing in these Terms 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.
24.2 No employment relationship
Each party enters into the Agreement as an independent contractor. The Agreement does not create any other relationship, including employment for any purpose, partnership, agency, trust or joint venture relationship.
25.1 Entire agreement
These Terms, together with any resulting Orders, is this entire agreement between the parties.
25.2 Changes to the terms
We may make changes to our Terms from time to time. You will be informed of these changes on our Website. If you do not agree with the changes, you must stop using our Services until such time as we can agree on these changes. 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.
Any favour we may allow you will not affect or substitute any of our rights against you.
If any term is invalid, unenforceable, or illegal, the term may be removed from the Agreement without affecting the rest of these Terms.
25.5 Governing law
These Terms and any resulting Orders are governed under South African law.
You consent to the jurisdiction of the High Court in respect of any action or proceedings that we may bring against you in connection with these Terms or any Order, 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.
We may provide any goods or services to any other person or entity. We may exploit our intellectual property subject to our confidentiality obligations.
25.8 Definitions in the Order
Words defined (or assigned a meaning) in an Order will have the meaning specified in the Order, unless the context clearly indicates otherwise.
All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. 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 Agreement 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 Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
25.10 Definations and interpretation In these Terms, 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 our website services;
assessment means any of the questionnaires or tests made available by the Company or the Client to a Participant;
assessment data any data relating to a Participant (including Personal Data and Special Categories of Personal Data) collected through the Participant’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);
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;
Client means the legal entity duly authorised to order Products and Services under the conditions of these Terms;
company means TTS (Top Talent Solutions) (Pty) Ltd registered in South Africa.
Confidential Information means information about either party, its operations, clients or any other information, that relates to the business including, but not limited to, the names of its clients, its marketing strategies, operations, or any other information of any kind which would be deemed confidential, a trade secret, a client list, or other form of proprietary information of the organisation;
control panel means the section on the website accessible by you through a web browser;
Consulting Services means any service that includes a consultant resources for the delivery of design, integration, reporting or feedback services;
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 as applicable in different countries;
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 agreed between the parties in writing.
existing material means any ideas, concepts, methodologies, processes, tools, code, forms or algorithms developed by or for either party independently and outside of these Terms and provided to the other party during the course of executing an Order;
fees means the fees, charges, or purchase consideration that you will pay to us in respect of Services we provide under Orders;
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;
Year means, in respect of an order, each successive 12 calendar month period during the term of the order, calculated from the effective date;
You mean the client contracting for the services and products;
New Material means any ideas, concepts, methodologies, processes, tools, code, forms or algorithms developed by us, using our Existing Material, to provide you with Services during the course of the execution of an Order;
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 Service 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 Services required, quantity and price of Services or contains a detailed Statement of Work;
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;
Participant means any respondent to an assessment;
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
products means any tests, questionnaires, reports or online systems, acquired from Third Party Providers or designed by us and supplied to you by us (including any part or parts of them);
Proposal means a description of the Products and/or Services and estimated fees related to the Products and/or Services you requested;
Registered user means you or an authorised user in your employ where you are a juristic person, who has been assigned credentials 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 mean natural and juristic persons who are connected to one another;
Request means a deliberate and serious expression to acquire a solution, service or product we provide;
Services means any Products or consulting services we or Related Persons provide to you;
service levels means the levels according to which we will provide each Service as agreed by parties in an Order;
Statement of Work means any fees, service delivery, resourcing or service level agreements pertaining to a specific Order;
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 the terms in these Terms; 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;
we, us, or our means TTS that enters into an order and, if specified in the order, those related to it;
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, 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, which shall include the customer’s affiliates and subsidiaries;
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;
Service Level Agreement: General
TTS provides support during business hours (8:00 to 16:30 CAT) on weekdays (Mon to Fri) excluding South African Public Holidays.
- Consulting and Training Services: e-mail the duty consultant on email@example.com
- Outsourced Assessment Services: e-mail firstname.lastname@example.org
- Online Assessment Services: e-mail email@example.com
Online Assessment Services
- Subject to you meeting your obligations under these Terms, we shall use all reasonable endeavors to ensure that the online assessment service is available to you throughout the term of these Terms. We will schedule downtime between 8:00 and 20:00 Central African Time (CAT) time on Saturdays as necessary. Such downtime will be notified on our Website or other such website as agreed with you from time to time and via email to the project administrator, Registered User or other designated employee of the Client.
- Identification and assessment Data will be made available to you for a period of 24 months from the date the Participant completes the Assessment or until the date the Assessment is anonymized at your request, whichever is earlier. Reports may be run against this data subject to the fees set out in our current price list.
- Help desk support (“Help Desk Support”) will be provided to between the hours of 8:00 and 16:30 CAT time Monday to Friday except South African public holidays (“Business Hours”). If applicable, any fees for the Help Desk Support shall be agreed with you.
- Queries received via email at firstname.lastname@example.org by the Help Desk during Normal Working Hours will be responded to within two Working Hours of the email receipt. For the avoidance of doubt, the meaning of a response within this paragraph will include an acknowledgement of your initial email stating that a query has been raised and shall not necessarily mean a resolution.
- We make no guarantee of resolving the problem.
- If required, we will generate a price quote and time estimate for work to be performed based on the results of an investigation.
- You must give specific consent for work to proceed at the agreed price and we may decline to perform such requested work.
- We do not guarantee fee-based work. If you experience further problems, you must submit a new support request.
- Network uptime, excluding planned downtimes notified to you by us in accordance with these Terms, shall be 99.5% availability based on network average during the hours of 8:00 on Monday to 16:30 on Friday CAT time except South African public holidays and 99% availability at other times;
- We will not be liable for any defect or failure in the performance of the online assessment service for reasons beyond our control including but not limited to link failures, power difficulties, telephone outages, network overload, issues related to your systems, default or failure of a third party, government actions, failure in the supply of a third party’s access line or any event of Force Majeure.
- We reserve the right to terminate the use of any bespoke reports, bespoke Products or systems previously delivered to Clients in the event that the reports or systems have, in our absolute discretion, low usage or activity. We will provide you with at least 90 days’ notice prior to terminating the use of such reports or systems.
Outsourced Assessment Services
- Subject to you meeting your obligations under these Terms and we receive a complete executable Order in the prescribed manner, we shall use all reasonable endeavours to deliver Outsourced Assessment Services to you within 24 business hours.
- An executable Order contains all relevant information that we require to arrange for the completion of a Success Profile, setup an assessment battery, contact participants, do reporting (including Success Profiles), arrange feedback and ensure accurate invoicing.
- Unless otherwise agreed with you, we allow participants three (3) business days to complete assessments. You may request that we extent this time when submitting your order, or by sending us an e-mail at email@example.com after a project has been launched.
- Automated Talent Match Reports and Third-Party Product reports will be available immediately after completion, or as soon as we have received a suitable Success Profile that will allow us to generate a Talent Match Report.
- Reports that require Consulting Services (report writing and feedback) will be available within 48 hours of receiving all the information need for the provision of these services.
- We will, on your instruction, contact any Participants to arrange for face-to-face or telephonic feedback within 24 hours of receiving assessment reports. For the avoidance of doubt, the meaning of contact within this paragraph will include us sending a scheduling request and shall not necessarily mean that a feedback session has been scheduled.
- We will contact a Participant to schedule feedback three (3) times. If we get no response that will allow us to schedule a feedback after the third attempt, we will consider the Order delivered. Should you require that we provide feedback at a later stage you will need to submit a new Order.
- Assessment services queries received via email at firstname.lastname@example.org or email@example.com by the Help Desk during Business Hours will be responded to within two Working Hours of the email receipt. For the avoidance of doubt, the meaning of a response within this paragraph will include an acknowledgement of your initial email stating that a query has been raised and shall not necessarily mean a resolution.
- It is your responsibility to ensure that Participants are informed of the assessment process. Unless otherwise agreed, we will execute an Order as soon as it is received. We will not be liable for any unintended or negative consequences from your instruction to deliver an Order.
Service Level Agreement: Consulting Services
Description of services
We will provide expert industrial psychology and talent management consulting services based on a detailed understanding of your need. These services can include, but are not limited to the design and implementation of various HR and Talent Management solutions for dealing with:
- volume screening,
- individual assessments for selection, the early identification of potential, individual development planning, leadership identification and development and succession planning,
- the design of assessment systems, assessment methods and reports,
- group level talent analytics,
- management and individual feedback, and
- do a detailed analysis of your needs to ensure that we propose specific contextualised solutions that meet your requirements;
- provide you with a clear outline of our understanding of your requirements, the proposed solution and associated charges;
- make available suitably qualified consultants to deliver services;
- ensure that any person delivering services has the necessary competence;
- provide you with regular feedback on progress;
- present final deliverables to you for sign-off; and
- make any agreed changes to deliverables to ensure sign-off.
- make available suitably qualified subject matter experts to assist in the identification and detailed analysis of your service needs;
- review our proposal and order to ensure our services meet your needs;
- agree on a clearly defined scope of work and delivery dates;
- once agreed, provide us with clear instructions and approval to proceed with the service;
- provide support during the delivery of the work; and
- sign-off on the final deliverables once these deliverables meet the standards set as part of our initial order and scope of work.
Consultant or Project Manager
We cannot guarantee that a particular TTS employee (“Consultant”) will carry out a consultancy project as unforeseeable events (e.g., illness) may occur. If a consultant is not available, TTS will discuss a suitable alternative with you and assign a replacement consultant to the project as soon as possible, or make arrangements as mutually agreed.
Our Consultant charges are based on the time spent on a project, and we define a Consultant Day as being a maximum of 8 hours during normal working hours (excluding travelling time). If evening, weekend, public holiday work or overseas travel is involved, higher rates may apply. We will bill you on a monthly basis for work completed or at pre-agreed billing points. Travel, subsistence, courier and other expenses will be charged to you at cost. Car travel will be charged at our prevailing rate (available on request).
Cancellation/Postponement of Service.
When we agree to provide a Service, 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 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.
Should a test taker or participant arrive more than 15 minutes late for a scheduled session, the session may be treated as cancelled and 100% of the cancellation fee would apply.
Service Level Agreement: Outsourced Assessment Services
Description of services
We will provide an end-to-end outsourced assessment service that includes:
- conduct an analysis of the assessment context and target role to determine the most essential and important success factors on which to base the assessment;
- in consultation with you, propose assessment methods and benchmarks that are appropriate for the purpose and context;
- set up the tts-assess.com online platform to send unsupervised assessments to individuals or, if agreed, arrange for the supervised assessment of individuals;
- contact individuals that need to complete assessments via e-mail and sms (test takers);
- provide support to test-takers via e-mail as part of the assessment process;
- provide you with regular status up-dates on the rate of assessment completion;
- score assessment results after completion of all the required assessments;
- prepare integrated assessment reports;
- provide verbal telephonic or face-to-face feedback to approved stakeholders and test takers;
- provide you with a final invoice containing all the relevant information and test taker names.
Conditions of service (OAS)
We will only be able to deliver Outsourced Assessment Services once the following has been agreed:
- an agreed process for job analysis and success profiling with a job matrix indicating the essential and important success factors for jobs or roles;
- an agreed process for the selection of assessment batteries with an assessment matrix as outcome;
- an agreed process for placing assessment orders, as well as project parameters and status reports;
- an agreed process and charges for supervised assessments if applicable;
- an agreed process for feedback to stakeholders in your organisation and relevant external parties;
- agreed report formats;
- an agreed process for the placement of Orders; and
- an agreed fee structure.
We are only able to provide you with the agreed service if we receive appropriate, correct and timely information from you. If we do not have all the information, we will inform you immediately upon receiving your request. We will deliver according to the service levels in these Terms once we have all the appropriate and correct information to execute your order.
All our assessments (supervised or unsupervised) are delivered online and will require a computer that is connected to the Internet. Depending on the assessments to be administered this computer will also need the newest version of Abode Flash installed. We are not able to provide this Service if access to a suitable computer is not available.
- execute your Order as prescribed and within the agreed timeframes described in our Service Level Agreement;
- contact you immediately if we are not able to execute your Order for whatever reason;
- communicate all technical or infrastructure requirements to you and test takers before the assessment.
- follow the agreed processes to place an Order;
- provide us with clear and detailed instructions of your assessment need (including but not limited to the role being assessed for, the success profile, the contact details of test takers, the start- and end-date of the project, the d-date for report delivery, the format of feedback and the d-date for feedback);
- provide us with the correct contact details of test takers and other stakeholders involved in the process; and
- provide us with the information we require to invoice you accurately.
Depending on our arrangements and the assessment, we may be required to supervise assessments. In these cases,
- we will assign a suitably trained administrator to the session;
- depending on the assessment and the venue, we will require access to the Internet and a suitable computer. Unless otherwise agreed, you will be responsible to provide this venue and infrastructure;
- we are able to provide suitable computers at a nominal charge for a small groups of test takers. In these cases, we will require a connection to a WiFi or 3G cellular network. If no such connection is available, we will discuss an alternative venue for the assessment with you;
- where we are required to arrange a suitable venue, the cost for this venue will be for your account.
Assessment services fees
Our Outsourced Assessment Services are charged based on the time spent for setup and management of assessment projects, test taker communication and support. These Services may be charged independently of our consulting time and products. We are able to train you to use our technology at no charge should you prefer to deliver these services yourself. Supervised assessment sessions are charged as Consulting Services and cancellation fees may apply as per our General Terms and Conditions.
Service Level Agreement: Training Services
Description of services
We will provide best practice and accreditation training to suitably qualified employees of your organisation. This training can include, amongst others, accreditation training in the use of Third-Party products, best practice training in the use of assessment information and talent match reports, Success Profiling, Competency based Interviewing and SJT development, as well as training in the use of our technology. Training is presented as Public or In-house courses.
Conditions of service
We will only be able to deliver Training Services to you if the following conditions are met:
- In certain cases, depending on the nature of the training and our agreements with our product partners, we are only able to train suitably qualified individuals. We will clearly specify these qualifications as part of the description of the training. We will only be able to accept your booking once you are able to provide proof that you meet these qualification requirements;
- We reserve the right to cancel or reschedule courses without penalty or liability if there are insufficient bookings, or for reasons outside its control. We will try to notify participants as soon as reasonably possible if a course has to be cancelled.
Where applicable, our Public courses are charged on a per delegate basis. In-company courses are charged per consulting day and material costs per delegate. The following conditions apply:
- Charges for training are payable up-front and your booking is only confirmed once we acknowledge receipt of payment;
- If you are not able to book at least 8 delegates on an in-house course, then you can pay the fee for 8 delegates but have fewer delegates attend.
- If training is presented at no-charge, you might be required to pay for travel costs;
In-company training arrangements
The details and requirements for the in-company courses will be agreed at the time the course is booked. Unless otherwise agreed, in addition to the agreed course fees, you will be responsible for providing, and the cost of, the following:
- the training venue, audio visual equipment and wireless broadband internet connectivity;
- all meals and refreshments during the course;
- travel and accommodation for the trainer(s) and, when required, bservers;
- the cost of transport by courier of equipment and materials to and from the venue; and
- if required, volunteers for administration and feedback practice.
- We may cancel a training course at our discretion without liability to you by giving you at least 5 days prior written notice. If you wish to cancel or postpone a training course, you must give us written notice at least 10 days before the start date of the course.
- On receipt of your cancellation, we shall credit your account with a sum equal to the fees paid by you in connection with the relevant training course.
- If you cancel a training course by giving us less than 5 days written notice, our full course fees are payable.
- The full course fee will be payable for any cancellation by a participant for any reason within 21 days of the start of the training course. No fees will be payable, except a charge for any course material already dispatched, for any cancellation received in writing more than 21 days before the course start date.
- Transfers from one course to another on an alternative date are treated as cancellations. A booking is then required for the new course date at the full price.
- You may request substitutions of delegates at any time. If we accept your request, we may require that your substitutes successfully complete any pre-course training requirements before attending the course.
Service Level Agreement: use of tts-assess.com
Description of services
The tts-define online profiler and tts-assess online assessment service allows you to independently manage your online success profiling and assessment process using a range of Products from us or our Third-Party Providers. The online service includes the setting up of assessment batteries, manage assessment projects and test takers, as well as generate reports. tts-assess houses a selection of assessment instruments (Products) from different test publishers. This allows you to provide assessments to test takers from one access point, integrate assessment data, produce integrated reports and store all data on one database.
- The use of tts-define and tts-assess is charged as part of the product charges specified in the standard TTS price list or as agreed with you.
- Depending on our relationship, Products are charged as they are used from one of three pricing options: 1) ad-hoc ‘pay-as-you-go’ users; 2) a discounted ‘in-contract’ option to clients with longer-term; 3) pre-paid volume discounted pricing.
- All our product prices are subject to the pricing schedules of our Third-Party providers and can change at any time.
- You will be charged at the end of every month for all Products used and reports generated during that month.
- Reports that are automatically generated are charged as soon as they are generated, even if the test taker did not complete all assessments.
- Certain Talent Match Reports are not available unless a report from our Third-Party provider has been generated. We will clearly communicate this to you. In these cases, all Third-Party reports are charged separately regardless if you requested or received these reports.
- The initial branding of the online platform and Talent Match Reports are free, but you might be charged for subsequent branding.
Grant of right
We grant you a limited, non-exclusive, non-transferrable, revocable right to use our Products in accordance with the terms and the terms of any Third-Party Providers. Any person wishing to use the Products contrary to these terms must obtain our prior written consent. We warrant that we have consent to grant you the right to use the Products of any Third-Party Provider.
Expiry of pre-paid product purchases
We grant you the right to use Products ordered and paid for as part of a pre-paid volume discounted Order for one year after delivery, following which any unused Products will expire (considered used).
Client specific configurations and customisation
- Our technology and services are flexible so that we can contextualise our services to meet your specific needs. Depending on the context and assessment methods, we are able to configure or customise our solutions to align with your specific requirements. We are only able to configure or customise our services and solutions if:
- we have all the data that are included in the report content and calculations available in tts-assess;
- you have permission or the legal right to use any branding, language or other content in the calculations and report outcomes; and
- you have signed-off on the specification and order when any changes are made
Configuration or customisation process
Should you want to make any changes to our standard online service, we will:
- do a detailed analysis of your needs to ensure that we can make the specific changes you require;
- provide you with a specification of the required changes including an example to show what these changes might look like, the time required to make such changes and the associated charges;
- make the changes as per our agreement;
- review these changes as part of our normal quality assurance process;
- make any agreed changes to deliverables to ensure sign-off;
- assist you with the implementation of the outcomes.
- review our specification and order to ensure all changes meet your needs;
- agree on a clearly defined scope of work and delivery dates;
- once agreed, provide us with clear instructions and approval to proceed with the changes;
- make available any company specific branding, models or content that are required for the specification and implementation of the changes in the specified format; and
- sign-off on the final deliverables once these deliverables meet the standards set as part of our initial order and scope of work.
Configurations and customisation fees
The time required to implement configurations and customisations are charged at a technology-consulting rate for the design, setup and implementation of changes to our standard offerings. These changes are based on our initial estimation of time required to make changes as defined in the agreed specification. Should you, in discussion with us, decide to change the agreed specification, we will investigate to impact of changes and may choose to amend the charges we proposed previously. We will obtain your written agreement to the charges before proceeding with the configuration or customisation. In cases where expert consulting services are required to provide support for the design and development of configured or customised solutions, then these services will be charged as Consulting Services.
After final sign-off and implementation of your services, you may wish to make changes to these services. These could include, amongst others, making changes to:
- assessment batteries;
- report formats and report content;
- communication messages to project participants;
- calculations, formula and scoring models; and
- success profiles.
You can discuss these changes with us at any time so that we can determine the impact in terms of complexity and time required. Depending on the nature of the change, we may choose to charge you for these changes. Any change will be prioritised in relation to other committed work and may not necessarily be completed immediately. We will only make changes to previously agreed work following your written permission to do so.
Service Level Agreement: Data Analytics and Research Services
Description of services
We will provide research services and support to you if you use at least one TTS or TTS Third-Party Provider as part of your assessment service or project. These services can include:
- validity and reliability research;
- norm and benchmark development;
- employment equity flow monitoring; and
- limited litigation support.
Where research is conducted as part of product development, expert witness litigation support or as part of the delivery of individualised profiles, then such research is seen as Consulting Services.
Conditions of service
The extent to which we are able to deliver research services to you depends on:
- the need for the research;
- the sample size;
- where applicable, the availability of good quality criterion data;
- permission from individuals that their assessment results can by used for research;
- support from the product publisher to provide assessment data in a suitable format for research;
- the practical feasibility of the research design and the likelihood that such research will be completed within a reasonable time.
We will provide litigation support to you if you use the products we provide according to our instructions. We will be able to speak to the quality of our products, but not to the legitimacy of decisions made using information from these products.
- do a detailed review to ensure that the proposed research is feasible;
- if the research is not feasible, we will inform you as such and propose alternative research designs;
- if the research is feasible, do a research proposal indicating the key research questions, required data, time frames and intended outcomes;
- conduct the research in an ethical and professional manner;
- present the results in a simple understandable format;
- where relevant and agreed, make the results of benchmarks available in your tts-assess online service.
- refrain from doing any research using data from assessments delivered through any TTS or product partner system without prior written permission from us;
- make available to us any data we agree on in the prescribed format to ensure the successful completion of the research;
- provide support during the completion of the research;
- not use the outcomes of the research for any purposes other than for what was agreed at the start of the research; and
- refrain from engaging in any litigation where a TTS or TTS partner product is involved without prior written permission from us.
Research services are provided free of charge for as long as the outcomes of the research are provided as aggregated data in the form of a research report. Depending on the assessment methods used, we may or may not be able to provide these methods at no charge. This depends on the nature of the method and the extent to which the product partner has a need for such research.
To contact us, please mail us at: firstname.lastname@example.org
Company Physical Address:
Block 6, Suite 6-102, Monument Office Park, 71 Steenbok Ave.
Monument Park, Pretoria, Gauteng, South Africa, 0181
Last Updated: 6 July 2019
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