|
AUTOMATED TRANSACTION AGREEMENT
1. PARTIES
This agreement, is entered into by means of an automated transaction between:
1.1 RYAN DEKKER
Identity number: 741016 5078 08 4 or his successors in title or assigns;
and
1.2 any person accessing the
ICT Jobs
web site in terms of one of the Frequent Placer Options, as defined hereunder
by the acceptance of these terms in clause 21.
The following terms are presented for review prior to agreement forming by
means of an electronic agent as contemplated in terms of subsection 20 (d) of
the Electronic Communications And Transactions Act 2002.
2 INTERPRETATION
2.1 In this agreement the expressions in italics shall have the meanings
assigned to them in this clause, i.e:
2.1.1 "contracting parties" means the Web Site Owner and a Frequent Placer;
2.1.2 "Data Subject" means any natural person or institution who with the
required consent of the natural persons which it represents posts personal
information concerning such natural person(s) to the
ICT Jobs
web site, for the purpose disclosed in the Disclosure Document;
2.1.3 "Disclaimer" means the disclaimer by the Web Site Owner posted to the
ICT Jobs
web site which can be viewed on the web site location in paragraph 2.1.1 (b);
2.1.4 "Disclosure Document" means the disclosure document posted to the Career
Classifieds web site in terms of section 43 of ECTA which can be view on the
web site location in paragraph 2.1.1 (b);
2.1.5 "ECTA" means the Electronic Communications And Transactions Act 2002 (No.
25 of 2002), The ECTA may be downloaded from
http://www.polity.org.za/pdf/ElectronicCommunications.pdf ;
2.1.6 "effective date" means the date on which acceptance of the terms recorded
electronically or signed in clause 21.6 and payment of the service fee in
clause 5.3.1 has been paid and the Web Site Owner has activated access to the
web site;
2.1.7 "electronic communication" means a communication by means of data
messages;
2.1.8 "Frequent Placer" means a person who enters into an agreement with the
Web Site Owner which entitles him to the services offered in terms of one of
the Frequent Placer Options;
2.1.9 "Frequent Placer Option" means:
2.1.9.1 the Basic Option which entitles a Frequent Placer to:
* Place 1 - 10 career opportunities per month
* Job manager (edit, add or delete career opportunities)
* Search resumes (This option is only for Placement Agencies)
* Resume alert (This option is only for Placement Agencies)
* Job Alert
* Company listing under Recruiters List
* Online Application
* WAP Applications
2.1.9.2 The Advanced Option which entitles a Frequent Placer to:
* Place 11 - 30 career opportunities per month
* Job manager (edit, add or delete career opportunities)
* Search resumes (This option is only for Placement Agencies)
* Resume Alert (This option is only for Placement Agencies)
* Job Alert
* Company listing under Recruiters List
* Online Applications
* WAP Applications
2.1.9.3 the Plus Option which entitles a Frequent Placer to:
* Place unlimited career opportunities per month
* Job manager (edit, add or delete career opportunities)
* Search resumes (This option is only for Placement Agencies)
* Resume Alert (This option is only for Placement Agencies)
* Job Alert
* Company listing under Recruiters List
* Online Applications
* WAP Applications
2.1.10 "personal information" means information about an identifiable
individual, including, but not limited to:
(a) information relating to the race, gender, marital status, national, ethnic
or social origin, colour, age, physical or mental health, disability, religion,
belief, language(s) spoken, written and read and date of birth of the
individual;
(b) information relating to the education, medical, criminal and employment
history of the individual;
(c) identity and / or passport number assigned to the individual;
(d) the physical -, postal -, telefax -, or e-mail address(es), of the
individual;
(e) the personal employment preferences of the individual;
(f) references in respect of the individual that is implicitly or explicitly of
a private or confidential nature;
(g) the views or opinions of another individual about the individual;
(h) the views or opinions of another individual about the proposed employment
of the individual; and
(i) any other information concerning the individual provided or required for
purpose of seeking or offering employment to such individual;
2.1.11 "RIC" means the Regulation of Interception of Communications Act, (70 of
2002), The RIC may be downloaded from
http://www.polity.org.za/pdf/RegOfInterOfCommAct70.pdf.;
2.1.12 "web site" means the
ICT Jobs
web site:
(a) owned and operated by the Web Site Owner or his successors in title; and
(b) located at http://www.carreerclassifieds.co.za, including any page, part or
element thereof;
2.1.13 "Web Site Owner" means Ryan Dekker in his personal capacity or his
successors in title or assigns.
2.2 In this agreement:
2.2.1 the singular shall include the plural, a reference to individual or
natural person shall include the masculine and the feminine genders and a
reference to "person" shall where applicable include any legal entity with
contractual capacity or a trust;
2.2.2 the headings have been included for ease of reference and shall not be
taken into account in the interpretation of the clause contents;
2.2.3 in calculating a time period:
2.2.3.1 the number of days:
(a) shall be inclusive of the first day and exclusive of the last day;
(b) shall be inclusive of Saturdays, Sundays and public holidays unless
otherwise specified; provided that if the last day of the time period falls on
a Saturday, Sunday or public holiday, then the last day of the time period
shall be deemed to be the first business day thereafter;
(c) the last day shall end at 17h00 on a business day.
2.2.4 a month shall mean a month as per the Gregorian calendar commencing on
the first day of such month and ending at 24h00 on the last day of such month;
2.2.5 a year shall mean the period commencing on the first day of January and
ending on the 31st (thirty first) day of December of that same year, or a
period of 12 (twelve) months depending on the specific contractual provision.
2.3. If this clause does not provide an interpretation guideline then the
meaning of a word shall be interpreted according to the latest edition of
Collins Dictionary & Thesaurus, otherwise the Interpretation Act as amended
from time to time shall apply.
2.4. Any reference to a contractual, statutory or regulatory provision is a
reference to the provision as at the effective date.
2.5 If any provision in a definition is a substantive provision or term
conferring rights or imposing obligations on any party, effect shall be given
thereto as if it were an agreed substantive provision or term of this
agreement.
2.6 Expressions defined in clause 2.1 of this agreement shall bear the same
meanings in any annexure hereto or in the Disclosure Document or Disclaimer, if
an annexure or the Disclosure Document or Disclaimer does not contain its own
definitions.
2.7 This agreement shall be binding on and enforceable against the liquidator,
or judicial manager, of the Frequent Placer and / or its shareholders, as if
such party or person had signed this agreement in the first instance, and a
reference to the Frequent Placer shall include a reference to the
abovementioned persons in their official capacities and / or a shareholder and
his estate, his executor, administrator, trustee, or other duly authorised
representative, as the case may be.
2.8 Notwithstanding the fact that hyperlinks in these terms and conditions to
copyright notices and legislation should be deemed part of these terms and
conditions in terms of Section 11 of the ECTA, the fact that some or all of the
hyperlinks may not be operational shall not play a role in determination of the
validity and interpretation of these terms and conditions.
3 BUSINESS PURPOSE OF THIS AGREEMENT
3.1 The Frequent Placer acknowledges that it has read, understands and accepts
the contents of the Disclosure Document and the Disclaimer, and use the web
site, and enter into this agreement on that basis.
3.2 The contracting parties accept and agree that the ECTA applies to this
agreement.
3.3
ICT Jobs
is a web site:
3.3.1 for Data subjects seeking carreer opportunities to store their personal
information in the format of a Curriculum Vitae (CV) on the web site free of
charge for purposes of allowing the Frequent Placer to access, collect,
collate, process, and download the information, and for employees to use, and
placement agencies to disclose such information to prospective employers;
3.3.2 for employers or placement agencies, as Frequent Placer, who have
selected one of the Frequent Placer Options to make use of the services offered
which includes the right to access, collect, collate, process, download and use
the personal information to seek, or offer employment to Data subjects,
("the disclosed purpose").
3.4 The Web Site Owner has an irrevocable written authority from natural
persons whose personal information appear on the web site to allow the Frequent
Placer;
3.4.1 to collect, collate, process and disclose the Data Subject's personal
information which is on the web site for the disclosed purpose;
3.4.2 to keep a record of the personal information for a period of one year
after the Data Subject requests his / her personal information to be deleted or
removed from the web site as is required in terms of Section 51 of the ECTA.
4 LICENSE
4.1 The Web Site Owner licenses the Frequent Placer to view, download, and use
personal information on the web site, for the disclosed purpose only, from date
of acceptance in clause 21.6 for the period in clause 21.5.
4.2 Personal information on the web site may not be used or exploited for any
undisclosed purpose.
4.3 The Frequent Placer may quote personal information available from the web
site; provided such a quote acknowledges the web site as the original source.
4.4 A licence granted in terms of this clause 4 is provided on a non -
exclusive and non - transferable basis and may be terminated or cancelled by
the Web Site Owner with 24 hours prior notice without reasons.
4.5 Hyperlinks to the web site from any other source shall be directed at the
home page of the web site. Links beyond the home page may only be used on
acceptance of these terms. Access to the web site, through a hyperlink not
directed at the home page of the web site, and by means of a deep link that by
passes these terms shall be deemed to be unauthorised use of the web site.
4.6 The Frequent Placer may not, frame the web site, in any manner whatsoever.
4.7 Apart from bona fide search engine operators and use of the search facility
provided on the web site by the Frequent Placer, no person may use or attempt
to use any technology or applications (including web crawlers, robots or web
spiders) to search, collect or copy content from the web site for any purpose.
5 SERVICE FEE
5.1 The Frequent Placer shall from the effective date become liable for payment
of the monthly fee in clause 5.2, which shall be payable on the basis set out
in clause 5.3.
5.2 The monthly service fee for:
5.2.1 selecting and using the services in terms of the Basic Frequent Placer
Option in terms of clause 21.3 shall be R399,00 per month - No VAT applicable;
5.2.2 selecting and using the services in terms of the Advanced Frequent Placer
Option in terms of clause 21.3 shall be R499,00 per month No - VAT applicable;
5.2.3 selecting and using the services in terms of the Plus Frequent Placer
Option in terms of clause 21.3 shall be R699,00 per month - No VAT applicable.
5.3 The applicable monthly service fee payable in terms of clause 5.2 read with
clause 21.3 shall be payable as follows:
5.3.1 electronic transfer of the first payment on the effective date to the
bank account of the Web Site Owner the particulars of which are as follows:
Bank : FNB Private Clients
Account Holder: Ryan Dekker
ACB Code : 259745
Account Type : Cheque
Account Number : 62145425139
5.3.2 the monthly service fees payable after the initial service fee in terms
of clause 5.3.1 shall be paid on the first day of every month by way of
electronic transfer to the designated account in clause 5.3.1.
5.4 In the event of non - payment the Web Site Owner shall be entitled to
charge the interest at overdraft interest rate of Nedbank Ltd published in
daily newspapers sold in Gauteng, from the date of non - payment to the date of
payment, both days included, without the necessity to have demanded payment.
6. SOFTWARE AND EQUIPMENT
It is the responsibility of the Frequent Placer to acquire and maintain, at his
/ her / its own expense, the necessary computer hardware, software,
communication lines and internet access accounts required to access the
internet and the web site and / or download personal information from the web
site.
7. DISCLOSURES REQUIRED BY SECTION 43 OF THE ECTA
The Disclosure Document contains the statutory required disclosures for
purposes of entering into this agreement, and to Data Subjects posting personal
information on the web site.
8 SECURITY
8.1 The Web Site Owner:
8.1.1 shall take all reasonable steps to secure the content of the web site and
the personal information provided by Data Subjects and Frequent Placers from
unauthorised access and / or disclosure; provided that he does not warrant or
represent that the personal information and the career opportunities will not
be accessible by unauthorised persons.
8.1.2 is under no legal duty to encrypt any personal information or career
opportunities posted to the web site;
8.1.3 is under no legal duty to provide digital authentication of any personal
information or career opportunities on the web site.
8.2 The Frequent Placer may not deliver or attempt to deliver, whether on
purpose or negligently, any damaging code, or computer viruses, to the web site
or the server and computer network that support the web site.
8.3 The Frequent Placer may not develop, or use any device to breach or
overcome the security measures of the web site.
8.4 If the Frequent Placer commits any of the offences detailed in sections 85
to 88 of the ECTA he / she / it shall, notwithstanding criminal prosecution, be
liable for all resulting liability, loss or damages suffered and / or incurred
by the Web Site Owner and its customers.
9 DISCLAIMER AND LIMITAITON OF LIABILITY
The disclaimer on the home page of the web site shall apply to the terms of
this agreement as if record word for word in this clause.
10 CHANGES AND AMENDMENTS
The Web Site Owner reserves the right, in his sole and absolute discretion, to
do any of the following, at any time with 1(one) days prior notice to the
Frequent Placer:
10.1 change these terms and conditions;
10.2 change the content of the Frequent Placer Options;
10.3 discontinue any aspect of the Frequent Placer Options; and / or
10.4 change the software and hardware required to access and use the web site.
11 HYPERLINKS TO THIRD PARTY SITES
11.1 The Web Site Owner may provide hyperlinks to web sites not controlled by
the Web Site Owner ("target sites") and such links do not imply any
endorsement, agreement on or support for the content of such target sites.
11.2 The Web Site Owner does not editorially control the content on such target
sites and shall not be liable, in any manner whatsoever, for the access to,
inability to access or content available on or through such target sites.
12 COMMENTS
The Frequent Placer is encouraged to report inaccurate, infringing and / or
harmful content available on the web site to the Web Site Owner and the Web
Site Owner undertakes to correct and / or remove such content or any part
thereof if such content on reasonable grounds prove to be inaccurate,
infringing and / or harmful.
13 INTERCEPTION OF COMMUNICATIONS
13.1 Subject to the provisions of the RIC, the Frequent Placer acknowledges the
Web Site Owner's right to intercept, block, filter, read, delete, disclose and
use all communications sent or posted to the web site by the Frequent Placer.
13.2 This agreement constitutes the written consent in terms of the ECTA and
the RIC.
14 APPLICABLE AND GOVERNING LAW
The web site is hosted, controlled and operated from Pretoria, Republic of
South Africa and the electronic acceptance of these terms in clause 21 shall be
deemed to have constituted an agreement entered into in Pretoria and the South
African law shall apply.
15 DOMICILIA AND NOTICES
15.1. The contracting parties choose as their respective domicilia citandi et
executandi for all purposes under this agreement, whether in respect of court
process, arbitration process, notices or other documents or communications of
whatsoever nature, the following addresses:
5 PPARTY PHYSICAL ADDRESS E-MAIL ADDRESS
THE WEB SITE OWNER:
439 Stonewall Str
Faerie Glen
Pretoria
webmaster@careerclassifieds.co.za
PARTY PHYSICAL ADDRESS E-MAIL ADDRESS
THE FREQUENT PLACER:
The address in clause 21.2.1
The address in clause 21.2.2
15.2. Subject to the express provisions of this agreement to the contrary, any
notice or communication required or permitted to be given in terms of this
agreement shall be valid and effective only if given in writing which shall
include notice by e-mail.
15.3. A party may by notice change the addresses in clause 15.1 or 21.2;
provided that the change shall only become effective on the 7th (seventh) day
after the deemed receipt of the notice by the other contracting party; and
provided that there shall always be both a physical and e-mail address.
16 GENERAL ADMINISTRATION CLAUSES
16.1 Sole Agreement
This agreement constitutes the sole agreement between the contracting parties
regarding the rendering of the services in terms of one of the Frequent Placer
Options and payment of the service fee. There are no prior and/or side
agreements between the contracting parties in this regard.
16.2 Amendments or Additions
No addition or amendment to, or deletion from or consensual cancellation of
this agreement will be of any force or effect unless it has been reduced to
writing and accepted electronically by or on behalf of the contracting parties
hereto, and sent or delivered in terms of clause 15, if applicable.
16.3 Indulgence
No indulgence by one party for the non-compliance of any obligation by the
other party in terms of this agreement shall operate as a waiver of the rights
of any of the contracting parties or as a novation of their rights.
16.4 Legal Costs
16.4.1 If the Web Site Owner or the Frequent Placer takes any action,
including, arbitration proceedings against the other, or obtains any legal
advice in respect of any breach of any of the terms of this agreement by a
contracting party ("the defaulter"), then the defaulter shall, upon written
demand, pay to the non-defaulter on an attorney and own client scale, all legal
costs incurred by the non-defaulter in safeguarding or securing its / his / her
rights, or enforcing its / his / her remedies.
16.4.2 There are no costs incidental to the entering into of this agreement.
17 AGREEMENT IN TERMS OF SECTION 21 OF THE ECT ACT
The contracting parties without limiting the general terms of the agreement
recorded in clause 3.2, specifically agree that:
17.1 data messages as defined in the ECTA:
17.1.1 posted by the Frequent Placer to the web site shall in terms of the
selected Frequent Placer Option be deemed to have been received if and when
they appear on the web site for the first time;
17.1.2 addressed by Frequent Placer to the Web Site Owner shall be deemed to
have been created and sent by the Frequent Placer from within the geographical
boundaries of South Africa;
17.1.3 addressed to the Frequent Placer by the Web Site Owner shall be deemed
to have been received by the Frequent Placer as detailed in Subsection 23 (b)
of the ECTA.
17.2 Electronic signatures, encryption and / or authentication is not required
for valid electronic communications between the Frequent Placer and the Web
Site Owner.
17.3 The Frequent Placer agrees and warrants that data messages that are sent
to the Web Site Owner from a computer, address or mobile device normally used
by or owned by the Frequent Placer, was sent and / or authorised by the
Frequent Placer personally.
18 INTELLECTUAL PROPERTY RIGHTS
18.1 All intellectual property on the web site, including but not limited to
content, trademarks, domain names, patents, design elements, software, source
code, meta tags, databases, text, graphics, icons and hyperlinks are the
property of the Web Site Owner and as such, are protected from infringement by
domestic and international legislation and treaties.
18.2 Subject to the rights licensed to the Frequent Placer in clause 4, all
other rights to intellectual property of the web site are expressly reserved by
and to the Web Site Owner.
19 BREACH AND REMEDIES
19.1 If the Frequent Placer uses personal information on the web site in breach
of the terms of the agreement then the Web Site Owner:
19.1.1 has the right to claim damages from the Frequent Placer;
19.1.2 shall not be liable, in any manner whatsoever, for any damage, loss or
liability that resulted from such use.
19.2 Should the Frequent Placer fail to pay the applicable service fee in terms
of clause 5.2 then the Web Site Owner shall be entitled to cancel this
agreement and the electronic access of the Frequent Placer to the web site and
to remove all or some of the data of the Frequent Placer from the web site
immediately and without notice and claim an amount equal to three times the
applicable service fee in clause 5.2 from the Frequent Placer as the agreed
liquidated damages of the Web Site Owner.
20 DISPUTE RESOLUTION:
20.1. As a result of the ongoing relationship between the contracting parties
they have agreed to design a non-adversarial dispute resolution process to
attempt to settle the disputes that may arise themselves.
20.2. As a result of the agreement reached in clause 8.1 a contracting party
shall if he claims or alleges that a dispute has arisen in respect of any
matter arising from this agreement:
20.2.1 formulate the dispute in writing; and
20.2.2 deliver it to the other contracting party,
at the domicilium of choice in terms of this agreement, which notice is
hereinafter referred to as ("the dispute notice").
20.3. The contracting party receiving the dispute notice shall within three (3)
business days of receipt of such notice respond thereto:
20.3.1 by recording his agreement with the formulation of the dispute in
writing; or
20.3.2 formulate the dispute in writing as perceived by him or his principal,
and deliver it to the contracting party who delivered the dispute notice.
20.4. Both the mediation and arbitration process shall be treated as
confidential unless a contracting party is legally obliged to disclose such
information by operation of law and shall be respected as such by all persons
involved or concerned.
20.5. The Web Site Owner or its main or majority member, and a nominated
representative of the Frequent Placer shall meet on an informal basis in an
attempt to reach a mutually acceptable self-negotiated settlement, within 3
(three) days from the date in clause 20.2, failing which any one of the
contracting parties shall be entitled to refer the dispute as formulated, for
arbitration on the terms set out hereinafter, which referral shall for purposes
thereof be regarded as an agreement to adjudicate the dispute by way of
arbitration.
20.6. In this clause unless the context clearly indicates a contrary meaning:
20.6.1 "the Act" shall mean the Arbitration Act of 1965 as amended;
20.6.2 "the Plaintiff" shall mean the party at whose request the dispute was
referred to arbitration in terms of clause 20.4;
20.6.3 "the Defendant" shall mean the other party to the dispute;
20.6.4 "the dispute" shall mean the dispute between the Plaintiff and the
Defendant as formulated during the mediation process in clauses 20.2 and 20.3;
20.6.5 "the arbitrator" shall mean the person appointed in terms of clause
20.6.
20.7. An arbitrator shall be appointed by agreement between the contracting
parties to the dispute and in appointing the arbitrator due regard shall be had
to the nature of the dispute, the experience of the person in arbitration
proceedings, and his / her availability and affordability; provided that if the
contracting parties cannot come to an agreement with regard to the appointment
of an arbitrator, then anyone of them shall be entitled to request the
Chairperson of the Brooklyn Branch of the Pretoria Bar Association to appoint
an arbitrator, regard being had to the aforementioned criteria.
20.8. The arbitration proceedings shall take place in Pretoria and the nature
of the proceedings and the process to be followed shall be determined by the
arbitrator in conjunction with the parties, subject to the exclusive right of
the arbitrator:
20.8.1 to determine whether the proceedings shall be of an inquisitorial and/or
adversarial nature;
20.8.2 to determine who shall carry the burden of filing the claim documents,
and the reply and the format of such documents with or without an obligation to
discover all relevant documents and/or witness statements simultaneously with
the filing thereof;
20.8.3 to rule on the manner in which evidence shall be taken down;
20.8.4 to lay down time limits and the consequences of non-compliance with
procedural rules and time limits as well as the conditions for any
postponements, if any;
20.8.5 to determine the procedure for determining interim legal points without
reference to a court of law;
20.8.6 to determine to what extent the strict laws of evidence shall apply;
provided that the arbitrator shall be entitled to allow hearsay evidence and to
determine the evidential value thereof.
20.9. The cost of:
20.9.1 the mediation process shall be borne equally by both contracting
parties;
20.9.2 the arbitration proceedings, both in respect of interim and final cost
orders and the liability therefore, shall be in the sole discretion of the
arbitrator taking the agreed rate in clause 16.4.1 into account;
20.9.3 the arbitration proceedings shall, in the event of the dispute being
settled outside of the process of arbitration, but after it had been initiated,
be paid as agreed in terms of the deed of settlement, or failing agreement, as
ruled by the arbitrator.
20.10. The award of the arbitrator both as regards the dispute(s) and the cost
order shall be final and binding on both contracting parties.
20.11. This clause shall not preclude either party to approach any court with
competent jurisdiction for any urgent interim relief.
21. ACCEPTANCE CLAUSE AND DURATION
IF YOU DO NOT ACCEPT THESE TERMS YOU MUST LEAVE THE CAREERCLASSIFIEDS WEB SITE
IMMEDIATELY. FAILING TO DO SO WILL BE DEEMED TO BE AN ACCEPTANCE BY YOU OF
THESE TERMS AND THE FORMATION OF A BINDING AGREEMENT IN TERMS OF ECTA
The Frequent Placer:
21.1. is _________________________________________________________
__________________________________________________________ represented by
________________________________________ who personally warrants his / her
authority and his / her principal's capacity to contract on the terms set out
in this agreement; and
21.2. chooses: (21.2.1) ____________________________________________
___________________________________________________________
as his address where he / she / it will accept service of any legal process;
(21.2.2) ____________________________________________________
___________________________________________________________ e-mail address
where he / she / it will accept any notice in terms of this agreement by
e-mail;
21.3. accepts the services offered in terms of:
21.3.1 the Basic Frequent Placer Option ; or
21.3.2 the Advanced Frequent Placer Option or
21.3.3 the Plus Frequent Placer Option
against payment of the applicable agreed service fee in clause 5.2.
21.4. accepts the other terms of this agreement which entitle him to the use of
the web site and the services offered in terms of the selected Frequent Placer
Option selected in terms of clause 21.3, for the period in clause 21.5
21.5. this agreement shall commence on the effective date and shall continue
indefinitely until:
21.5.1 terminated by means of one (1) day's written or electronic communication
by any one of the contracting parties;
21.5.2 cancelled in terms of clause 19.2.
21.6. ACCEPTANCE
21.6.1 Signature :
21.6.2 The terms of this agreement were accepted by the Frequent Placer as
represented and identified in clause 21.1 on ______________________ at
Pretoria.
WITNESSES:
1. ___________________________ _____________________________
* as or qq the Frequent Placer
2. ___________________________
* delete whichever is not applicable.
|