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The arbeiteninkapstadt.com website is owned and operated by TalentPool Solutions.
Thank you for accessing https://arbeiteninkapstadt.com/ (the “Website “). Please read the Terms of Service carefully before using the Website and our Services. The Terms of Service and Usage constitutes a legally binding agreement between you and TalentPool Solutions (“Company”, “TalentPool Solutions”, “we” or “us”), and govern your access to, and use of, the Website including any content, functionality, and services offered on or through our Website (collectively, the “Platform”).
The Website is owned and operated by TalentPool Solutions (“TalentPool Solutions”).
Roeland Square Unit 28, Roeland Street, 8001 Cape Town, South Africa.
Registration: 2009/061263/23 VAT Section 27: 4690252624
The Website including content or areas of the Website may require user registration. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete.
Any user name, password, or any other piece of information chosen by you or provided to you as part of our security procedures, must be treated as confidential, and you must not disclose it to any other person or entity. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that should you be provided an account, your account is personal to you and you agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You are responsible for any password misuse or any unauthorized access.
You understand and agree that the Website and its entire contents, features, and functionality, including but not limited to all information, software, code, text, displays, graphics, photographs, video, audio, design, presentation, selection, and arrangement, are owned by TalentPool Solutions, its licensors, or other providers of such material and are protected in all forms by intellectual property laws including without limitation, copyright, trademark, patent, trade secret, and any other proprietary rights.
The TalentPool Solutions name, the “arbeiteninkapstadt.com”, “Arbeiten in Kapstadt”, “AIK” name, and all related names, logos, product and service names, designs, images and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. Other names, logos, product and service names, designs, images and slogans which appear on this Website are the trademarks of their respective owners. Use of any such property, except as expressly authorized, shall constitute a violation of the rights of the property owner and may be a violation of federal or other laws and could subject the violator to legal action.
You may only use the Website for your personal and non-commercial use. You shall not directly or indirectly reproduce, compile for an internal database, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, in any form or medium whatsoever except: (a) your computer and browser may temporarily store or cache copies of materials being accessed and viewed; (b) a reasonable number of copies for personal use only may be printed keeping any proprietary notices thereon, which may only be used for non-commercial and lawful personal use and not for further reproduction, publication, or distribution of any kind on any medium whatsoever; (c) one single user copy may be downloaded with any proprietary notices intact, for your own personal, non-commercial use, conditional on your agreement to be bound by our end user license agreement for such downloads; and (d) in the event social media features are provided with respect to certain content are on our site, you may take such actions as our site permits for such features.
Users are not permitted to modify copies of any materials from this site nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site. You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
The following content standards apply to all content, material, and information a user submits, posts, publishes, displays, or transmits (collectively, “submit “) to the Website, to other users or other persons (collectively, “User Submissions”) and any and all Interactive Functions. User Submissions must comply with all applicable federal, state, local, and international laws and regulations.
The Website may contain Interactive Functions allowing User Submissions on or through the Website. No User Submission to the Website will be subject to any confidentiality by the Company. By providing any User Submission to the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to a world-wide, royalty free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose and according to your account settings and/or incorporate such material into any form, medium or technology throughout the world without compensation to you. You waive any moral rights or other rights of authorship as a condition of submitting any User Submission.
We have no obligation, nor any responsibility to any party to monitor the Website, and do not and cannot undertake to review material that you or other users submit to the Website. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.
Although we make reasonable efforts to update the information on our Website, we make no representations, warranties or guarantees, whether express or implied, that the content on our Website is accurate, complete or up to date. Your use of the Website is at your own risk and the Company has no responsibility or liability whatsoever for your use of this Website. The Website may include content provided by third parties, including from other users and third-party licensors. All statements and/or opinions expressed in any such third-party content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of the Company. The Company is not responsible, or liable to you or any third-party, for the content or accuracy of any third-party materials.
This Website may provide links to third-party sites. We make no representations about any other websites that may be accessed from this Website. If you choose to access any such sites, you do so at your own risk. We have no control over the contents of any such third-party websites and accept no responsibility for such sites or for any loss or damage that may arise from your use of them.
Our Website must not be framed on any other website, nor may you create a link to any part of our Website without our express written permission. We reserve the right to withdraw linking permission without notice. The Website in which you are linking must comply in all respects with the Conditions of Use and User Submissions and Site Content Standards. You agree to cooperate with us in causing any unauthorized framing or linking to immediately stop.
We may, without prior notice, change any aspect of the Services or Website; stop providing the Services or features of the Services.
The information and material on this Website, and the Website may be changed, withdrawn or terminated at any time in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is restricted to users or unavailable at any time or for any period.
By providing the Company with your email address, you consent to our using the email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your account page (for Customers) or by following the opt-out and/or unsubscribe instructions in the email message. Note: Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
The Company will respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Services, please notify us directly. For your complaint to be valid under the DMCA, you must provide the following information in writing:
UNDER RSA LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
In accordance with the DMCA and other applicable law, TalentPool Solutions has adopted a policy of terminating, in appropriate circumstances, the accounts of Users who are deemed to be repeat infringers. TalentPool Solutions may also at its sole discretion limit access to the Services and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe in good faith that any content on the Services is illegal or infringes your or a third party’s right (excluding copyright infringement) or you wish to make us aware of any other illegal or infringing acts which relate to the Services, you can contact us via email. Any notice to us must contain: (a) a detailed description of the infringing or illegal material or activity including why it is infringing or illegal; (b) a detailed description specifying the location of the material that you claim is infringing or illegal (if applicable); and (c) your name, address, telephone number and e-mail address.
We cannot and do not guarantee or warrant that files or data available for downloading from the internet or the Website will be free of viruses or other destructive code. You are solely and entirely responsible for your use of the Website and your computer, internet and data security. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAILBOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES FOUND OR ATTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PROVIDED BY LAW, UNDER NO CIRCUMSTANCE WILL THE COMPANY, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS BE LIABLE FOR NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, FUNDEMENTAL BREACH, DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, RELIANCE ON, THE WEBSITE OR THE SERVICES ANY LINKED WEBSITES OR SUCH OTHER THIRD PARTY WEBSITES, NOR ANY SITE CONTENT, MATERIALS, POSTING OR INFORMATION THEREON.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 19. is enforceable, the following mandatory arbitration provisions apply to you:
Your arbitration fees and your share of arbitrator compensation shall be governed by such rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and TalentPool Solutions may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.
You and TalentPool Solutions agree that any arbitration shall be limited to the Dispute between TalentPool Solutions and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
You and TalentPool Solutions agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or TalentPool Solutions intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (3) any claim for injunctive relief.
The Services are controlled and operated by TalentPool Solutions from within the Republic of South Africa. TalentPool Solutions makes no representations that the Services or the materials available via the Services, are appropriate or available for use in locations outside of the RSA. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with all Republic of South Africa laws as well as local laws, if and to the extent local laws are applicable.
The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. An arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same user to the extent required by applicable law. Except as otherwise expressly provided in this Agreement, all arbitration and other litigation in a court of competent jurisdiction of any dispute between you and TalentPool Solutions related to this Agreement shall be located in South Africa.
You may not use the Services if you are a resident of a country embargoed by the Republic of South Africa, or are a foreign person or entity blocked or denied by the Republic of South Africa government.
TalentPool Solutions may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our websites, as determined by TalentPool Solutions in its sole discretion. TalentPool Solutions reserves the right to determine the form and means of providing notifications to users, provided that you may opt out of certain means of notification as described in this Agreement. TalentPool Solutions is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add firstname.lastname@example.org to your email address book to help ensure you receive email notifications from us.
You agree to comply with all applicable laws, regulations and ordinances in the use of the Services and the conduct of your activities.
Technical or Customer Service Questions. Wherever you are located, if you have any questions about your account, and/or technical or other customer support questions about your use of our services, please contact us on email@example.com.
The Company shall provide, host and maintain a white-labelled online job board to be located on the Customer Website(s) (“Job Board”) during the term of your subscription (“Subscription Term”). The Job Board will enable visitors and Customer’s clients (hereinafter, collectively “Customer End Users”) to interact with the Job Board as further described in Section 2 below. Customer accepts that the Company may use the services of third-party providers to provide certain of the Services to Customer.
Customer agrees to receive newsletters, marketing or promotional materials as produced by Company from time-to-time by e-mail or otherwise.
Customer shall, subject to Section 1 (b) above, use the Company as the exclusive provider of an online hosted job board, email job alerts, and employment information services, including without limitation, with respect to the Customer Website(s), provided, however, that Customer is free to distribute job advertisements via third party services.
Customer represents, warrants and agrees that:
Upon Company’s request, (A) Customer will provide Company with copies of the Customer Terms and, upon Company’s request, will make any reasonable revisions suggested by Company that would clarify that Company is obtaining the necessary rights and authority from the Customer End User to perform its rights and obligations hereunder; (B) Company may require inclusion of a reasonable notice that discloses Company’s relationship as a service provider; and (C) Company may require the inclusion of its own Customer End User additional terms that Company may require Customer End Users to affirmatively accept.
The following standard feature-capability shall be enabled as the standard offering (“Standard Offering”), provided, however, that Customer agrees to execute separate Services Agreements where required to access specific features (“Additional Terms of Service” or “Services Agreement”)
Capability for Customer and Customer End Users, which have accepted Customer Terms, to post, link, store, share and otherwise make available job advertisements (“Job Advertisements”), resumes, and other third-party generated content to the Job Board (hereinafter, “User Content”). Additional terms and requirements applicable to User Content are contained in the User Content Standards contained in Exhibit B (“User Content Standards”)
Ability for Customer End Users, which have accepted Customer Terms, to create user accounts.
Ability for consumer Customer End Users searching for employment opportunities to perform the following activities on the Job Board at no charge if such features are made available by Company and, if required by Company, Customer affirmatively selects (e.g., opting in or “switching on”) such feature(s):
Search for employment opportunities using a job search box (“Job Search Box”);
Apply to Job Advertisements posted on the Job Board or available via the Job Search Box;
Submit resumes in response to Job Advertisements; and/or
Submit resumes to the Customer resume database, if applicable; and/or
Register or otherwise consent to receive job alert emails (“Emails”), containing information about Job Advertisements from Customer End Users (“Customer Job Ads”) and Backfill Job Ads (defined below). Customer End Users that register or otherwise consent to receive Emails are deemed to be “Registered Customer End Users”. Additional terms applicable to the Emails sent to Registered Customer End Users under the Standard Offering are contained in Sections 1 through 10 of the Job Alert Terms in Exhibit C below (“Job Alert Terms”).
Features (A)-(E) shall be limited to Customer End Users that have accepted the Customer Terms.
Capability for business Customer End Users, which have accepted the Customer Terms, to post Job Advertisements on the Job Board (“Job Posting Services”).
Ability for Customer to receive additional job advertisement content from Company’s third-party providers (“Backfill Job Ads”), to post on the Job Board and to send in Emails to Registered Customer End Users (“Backfill”). Customer may be eligible to receive a revenue share with respect to Backfill Job Ads (“Backfill Revenue Share”). Additional terms applicable to Backfill are contained in Exhibit D below (“Backfill Terms”).
Publication of Qualified Job Advertisements on one or more Company-owned websites or mobile apps (“Limited Distribution”) as determined by Company in its discretion (“Company Website(s)”). Customer must be on a paid subscription plan in order to receive Limited Distribution. For the purposes of this Agreement, a Job Advertisement will be deemed a ‘Qualified Job Advertisement’ if (A) the Customer End User pays Customer a job posting fee to post the applicable Job Advertisement using the Job Board Payment Gateway (“Job Posting Fee”), and (B) such Job Posting Fee meets a minimum Rand value as determined by the Company, from time-to-time (hereinafter, a “Qualified Job Advertisement”).
Customer may select one or more non-standard offerings, offered by Company from time-to-time; Company reserves the right to modify or remove non-standard service offerings and/or features at any time.
Distribution of the Customer End User’s Qualified Job Advertisement via one or more of the Company’s then-current distribution channels, as determined by Company (collectively, “TalentPool Solutions Distribution”), including, but not limited to, in job alert emails to job seekers, to operators of third-party job posting and distribution services, or to entities within the Company’s affiliate network (collectively, the “Company Distribution Channels”), in return for Customer’s agreement to pay Company a revenue share from the Job Posting Fee (“Job Distribution Revenue Share”). The Job Distribution Revenue Share shall be determined by the Company and communicated to Customer. Payments terms are contained in Section 4 of Exhibit A below.
Ability for Registered Customer End Users to receive Emails containing information about employment opportunities provided by third parties that are not Customer End Users (“Alerts Job Ads”). For the avoidance of doubt, backfill will not be included in Emails under the TalentPool Solutions Hosted Alerts Program. Customer may be eligible for a revenue share subject to Section 11 of the Job Alert Terms contained in Exhibit C (“Email Revenue Share”). Additional terms applicable to Emails sent to Registered Customer End Users pursuant to the TalentPool Solutions Hosted Alerts Program are contained in Sections 1 to 11 of the Job Alert Terms.
If applicable, Customer will receive an Email Revenue Share and/or a Backfill Revenue Share in accordance with the Job Alert Terms and Backfill Terms contained in Exhibits C and D respectively; provided, that, Customer shall not be entitled to receive both forms of revenue share for the same job advertisement even if it is contained in both Backfill and Emails. In the event that the same job advertisement is contained in Backfill and Emails, the Company shall have the discretion to select which revenue share shall apply and may select the revenue share that results in less compensation to Customer.
Company reserves the right to charge Customer for additional features and/or services and such new features or services may be subject to additional terms and require Customer to execute or agree to a Services Agreement Use (“Additional Terms of Service”).
The Job Board will include a payment method for Customer End Users to purchase Job Posting Services (“Payment Gateway”), provided, however, that Customer shall have a direct relationship with the provider of the Payment Gateway, which shall be deemed Customer-associated Third Party Materials and Services, but approved by Company, and Customer shall be responsible for the Payment Gateway, and its provider, in all respects, including, without limitation, associated data privacy and security, receipt of payments, refunds, fraudulent activity, currency conversions, and associated fees.
Company shall provide Customer with customer service and technical support via email, and as otherwise offered by Company from time-to-time, during Normal Business Hours. Company will use commercially reasonable efforts to make the Services reasonably available, except for: (i) planned downtime; (ii) unavailability attributable to Customer, Personnel (defined in Exhibit A (Standard Terms)), Customer End Users, Customer-associated Third Party Materials and Services, Third Party Materials and Services or other third party acts or omissions; or (iii) any unavailability caused by circumstances beyond Company’s reasonable control, including without limitation, Force Majeure Events (defined in Exhibit A (Standard Terms)). Updates to the software underlying the Services will be released as and when available.
Notices must be sent via email, first class, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to TalentPool Solutions must be sent to firstname.lastname@example.org.
DEFINITIONS. In addition to defined terms referenced elsewhere in the Service Terms, the following definitions apply to the Service Terms:
“Access Credentials” shall mean any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Authorized Users” means Customer’s Personnel (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement and (ii) for whom access to the Services has been purchased hereunder.
“Business Day” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa, when banks are generally open for business.
“Company IP “means the Services, the Documentation, and any and all other intellectual property solely owned by Company and provided to Customer or any Authorized User or Customer End User. For the avoidance of doubt, Company IP includes (i) Usage Info and any information, learnings, data, or content derived from Company’s monitoring of Customer’s (including Authorized Users’ and Customer End Users’) access to or use of the Services but does not include any applicable underlying Customer Content; and (ii) any custom elements or features developed or provided by Company.
“Customer Content “means (with the exception of personal data and Usage Info), information, data, and content, in any form or medium, that is submitted, posted, or otherwise transmitted by Customer, a Customer End User or an Authorized User, through the Services and/or pursuant to the Agreement.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.
“Documentation “means Company’s user manuals or guides relating to the Services and made available to Customer from time-to-time (see arbeiteninkapstadt.com).
“Normal Business Hours” means 08:00 am to 5:00 pm on a Business Day.
“PII” means personal data of Customer End Users and Customer’s Authorized Users.
“Platform” means the arbeiteninkapstadt.com Website and online hosted job board Services.
“Representative(s)” means a party’s officers, directors, employees, contractors, agents, lawyers and consultants.
“Third-Party Materials and Services” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Company.
“Usage Info” means information related to Customer’s (or its Authorized Users’ or Customer End Users’) use of the Services that is used by Company in an aggregate, de-identified, and/or anonymized (i.e., not directly personally identifiable to a specific individual data subject or directly attributable to Customer) manner, including to compile statistical and performance information related to the provision, operation or improvement of the Services. Usage Info may include unique identifiers, which will not be deemed PII, to the extent permitted by applicable Law.
Customer shall be responsible for customer service and technical support for its Customer End Users.
Customer shall be responsible for ensuring that all User Content posted to the Job Board complies with the requirements contained in Exhibit B (User Content Standards).
When creating an account or uploading information to the Services, Customer shall ensure that all information submitted is accurate and complete. Customer shall be responsible for all activity that occurs under its account and shall ensure that Authorized Users keep Access Credentials secure. Customer shall immediately notify Company in the event of any breach of security or unauthorized use of any Customer and/or Authorized User account; provided, however, that Customer shall remain responsible for all activity in connection with Customer and/or Authorized User accounts following notice. Customers have no ownership rights or proprietary interest in their accounts. Customer accounts and Authorized End User accounts are Platform Use subject to the Platform Terms.
Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content.
Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to protect against any unauthorized access to or use of the Services. Customer is responsible for the security of Customer Website(s) and Customer Systems and will maintain such in compliance with applicable Law and Customer’s obligations to third parties.
Customer will comply with applicable local, state, national and foreign laws, treaties, regulations and conventions (“Law(s)”) in connection with its use of the Services, including without limitation those related to data privacy, employment and labour and consumer protection.
In addition to Third Party Materials and Services provided by Company, Customer may offer Customer End Users additional services and materials provided by third parties (“Customer-associated Third-Party Materials and Services”), but accessed via the Services, which as between Company and Customer shall be treated hereunder as Customer activities and Customer Content for which Customer shall be solely responsible. Company, may, at any time in its reasonable discretion, disapprove or require removal of any Customer-associated Third-Party Materials and Services.
Customer is responsible for promptly responding to all Company requests for materials, information, feedback and, if applicable, approval, and providing access to Customer Content and Customer Systems to the extent reasonably necessary for Company’s performance of the Services.
Company reserves all rights not expressly granted to Customer in the Service Terms.
Fees. Customer shall pay Company Subscription Fees, Job Distribution Revenue Share, and other fees and costs without offset or deduction (collectively, the “Fees”).
If Customer utilizes TalentPool Solutions Distribution, the applicable Job Posting Fees will be automatically split by the Payment Gateway as part of the Payment Method in the applicable percentages so that Company’s and Customer’s respective accounts are credited as part of the Job Posting Fee transaction and so Company receives its Job Distribution Revenue Share. In the event that the Job Posting Fees cannot be automatically split by the Payment Gateway, Company will at its option, either (i) charge the Customer Payment Method for its Job Distribution Revenue Share, pursuant to which, Customer authorizes Company to charge its Payment Method for amounts due hereunder; or (ii) invoice Customer for the Job Distribution Revenue Share and Customer shall make payment within thirty (30) days of invoicing by the payment method specified in the invoice. Customer and Company will cooperate to ensure such is accomplished and to rectify any issues that may arise with the Payment Gateway or otherwise.
Unless otherwise stated, payment of subscription fees (“Subscription Fees”) are due on a monthly basis, and all other fees are due to Company within thirty (30) days of invoicing. Unless otherwise specified, Subscription Fees must be paid by credit and/or debit card (“Payment Method”) and such Payment Method may be requested for other payments. Customer agrees to provide Company with complete and accurate billing and contact information together with the email address, and name and telephone number of an authorized billing contact (“Billing Contact”) and shall timely inform Company and/or update Company of changes to the Payment Method and/or Billing Contact. Customer agrees that its Payment Method and Billing Contact information may be shared with third parties such as payment processors, operational vendors, credit agencies, and/or collection agencies, for the purposes of checking Customer’s credit, effecting payment, collecting payments, assessing late fees if applicable and other legitimate Company business reasons. Pursuant to this Section 4, Customer authorizes Company to charge its Payment Method for amounts due hereunder.
Unless otherwise specified in writing, all payments to Company shall be made in South African Rand.
If Customer fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (ii) Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Company reserves the right to suspend or terminate Customer’s access to the Services and cease provision of the Job Board, in addition to any other legal remedies.
Unless otherwise set forth in writing, at the time of automatic renewal (see Section 5 (a) of these Standard Terms), the applicable Subscription Fee will be charged to the Payment Method provided, together with any applicable VAT, sales, use, excise, consumption or other similar tax applicable to the Services, until termination as set forth in Section 5 (b).
Subscription Fees and other amounts payable by Customer in return for the Services, are exclusive of taxes and similar assessments. Customer will be responsible for the payment of any present or future sales, VAT, use, excise or other similar tax (excluding taxes based on Company’s net income) applicable to the Services. All fees paid by Customer are non-refundable unless otherwise expressly stated herein. If Company is required by a taxing authority to pay any taxes not previously collected from Customer, Customer will promptly submit the amount pertaining to such taxes (including applicable penalties and interest, if any) to Company upon written notice.
Trial subscriptions (including free trials) are subject to the Service Terms and any applicable additional terms disclosed as part of such offer. If Customer is offered a free trial, unless otherwise expressly provided as part of the offer terms, it will automatically expire at the end of the free trial period unless Customer converts the free trial to a paid subscription or unless Customer utilizes the TalentPool Solutions Distribution service.
Company may terminate Customer’s subscription to the Services (“Subscription”) immediately, if Customer fails to timely pay any amount when due hereunder or breaches obligations under these Service Terms.
As permitted by applicable Law, either party may terminate the Subscription, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Company may terminate the Subscription for convenience by providing written notice (which may be sent by email).
If Customer is on a free trial and does not become a paid subscriber and/or utilize TalentPool Solutions Distribution following the end of the free trial, the Subscription will automatically terminate.
Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP.
With respect to Third Party Materials and Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third Party Materials and Services.
As between Company and Customer, Customer owns Customer Content. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license (with the right to sublicense) to reproduce, distribute, modify and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license (with the right to sublicense) to reproduce, distribute, modify, create derivative works of, and otherwise use and display, and otherwise exploit, Customer Content incorporated within the Usage Info. In addition, Customer grants Company a non-exclusive, royalty-free, unlimited, irrevocable, perpetual, worldwide license (with the right to sublicense) to the Customer Content, User Content and Customer Intellectual Property posted on or otherwise made available to or via the Services as more fully set forth in Section 1(a) of Exhibit B (User Content Standards).
If Customer, or any of its Personnel or Customer End Users, sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Company is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its Personnel and Customer End Users, all right, title, and interest in, and to the Feedback, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
The Services utilize software and technology that may be subject to Republic of South Africa export control laws, including the Republic of South Africa Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable Laws and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the Republic of South Africa.
Customer expressly grants, and represents that it has a right to grant, to Company and its affiliates and service providers, and each of their, and Company’s, respective licensees, successors, and assigns, the right to a world-wide, royalty free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties User Content for any purpose and/or incorporate such material into any form, medium or technology throughout the world, or create derivative works of or otherwise exploit the User Content, without compensation to Customer or the provider of the User Content. Customer accepts that Customer, and not Company, is fully responsible for User Content, including, without limitation, all Job Advertisements, and Customer is fully responsible and legally liable including to any third party for such content and its accuracy.
Customer shall at all times maintain and operate a Digital Millennium Copyright Act (“DMCA”) compliant User Content notice and takedown program that qualifies the Customer Website(s) and applicable Customer Systems, including the Job Board, for DMCA safe harbour protection. In addition, Company is entitled to apply its own DMCA program and protection to its Services and if Company so requests, Customer will provide a link thereto from the Job Board portion of the Customer Website in a place and manner mutually agreed by the Parties. Customer acknowledges that in operating its own DMCA program, that Company is entitled to remove any allegedly infringing content from the Services.
User Content will not be subject to any confidentiality by the Company.
Customer agrees that it shall be responsible for ensuring that User Content and Customer Content submitted by Customer and Customer End Users: (i) complies with applicable local, national and international Laws, including but not limited to Laws relating to anti-discrimination, labor and employment, equal employment opportunity and employment eligibility requirements, data privacy, data access and use, and intellectual property; (ii) do not contain any job requirement or criterion that discriminates on the basis of national origin or other protected class; (iii) do not require citizenship of any particular country or lawful permanent residence in a country as a condition of employment, unless otherwise required in order to comply with applicable Law, legal order, or government contract; (iv) represent a real and current employment opportunity; (v) do not contain personal information and do not contain the names, logos or trademarks of persons or companies unaffiliated with Customer End User; (vi) do not contain outdated, inaccurate, false, or misleading information; (vii) do not contain content or links to content that exploits people in a sexual, violent or other manner, or solicits personal information from anyone under the age of 13; (viii) do not include any screening requirement or criterion where such requirement or criterion is not an actual and legitimate requirement of the job; (ix) do not sell, promote or advertise products or services; and (x) do not contain any franchise, pyramid scheme, “club membership”, distributorship or sales representative agency arrangement or other business opportunity which requires an upfront or periodic payment, pays commissions only (except for postings that make clear that the available job pays commission only and clearly describes the product or service that the job seeker would be selling, in which case such advertisements are permissible), or requires recruitment of other members, sub-distributors or sub-agents.
Customer understands and accepts that the email delivery platform (“Third Party Email Services”) utilized to deliver Emails to Registered Customer End Users, is provided by third party service providers (“Third Party Providers”). Each Third-Party Provider retains all right, title and interest in and to all Third-Party Email Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third-Party Provider will be a beneficiary of the terms of these Job Alert Terms as to the Third-Party Email Services provided by the Third-Party Provider and will have all rights necessary to enforce these Job Alert Terms against Customer in the case of any breach of those terms.
Where Emails to Registered Customer End Users are branded with Customer’s trademarks or logos (“Customer Intellectual Property”), Customer hereby grants to Company and its Third-Party Providers, a perpetual, irrevocable, non-exclusive license to use the Customer Intellectual Property in the content of Emails sent to Registered Customer End Users. Customer will not provide any Customer Intellectual Property that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; or (d) is false, misleading or inaccurate. The Company and its Third-Party Providers may take remedial action if any Customer Intellectual Property violates these Job Alert Terms; however, the Company and its Third-Party Providers are under no obligation to review Customer Intellectual Property for accuracy, compliance or potential liability.
The Company and its Third-Party Providers will have the right to collect, extract, compile, synthesize, and analyse data and information resulting from or relating to delivery of Emails and the actions of job seekers that open Emails, click on hyperlinks in Emails or Job Advertisements and/or snippets of Job Advertisements contained in Emails (“Service Data”). Any non-personal Service Data collected by Company or any Third-Party Provider will be owned by the party collecting the Service Data and may be used by that party for any lawful business purpose without a duty of accounting to Customer subject to applicable privacy laws and confidentiality obligations.
THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE CONTENT OF JOB ADVERTISEMENTS OR ANY OTHER THIRD-PARTY GENERATED CONTENT OR THIRD-PARTY EMAIL SERVICES. CUSTOMER ACCEPTS THAT THE COMPANY ACTS AS A PASSIVE CONDUIT FOR THE ONLINE DISTRIBUTION AND PUBLICATION OF THIRD-PARTY GENERATED CONTENT, INCLUDING, WITHOUT LIMITATION, JOB ADVERTISEMENTS AND HAS NO OBLIGATION TO SCREEN SUCH CONTENT. THE COMPANY DOES NOT WARRANT THAT THIRD PARTY GENERATED CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, COMPLIANT WITH LAWS, NON-INFRINGING, UNINTERRUPTED OR ERROR FREE. ACCORDINGLY, THE COMPANY (I) IS NOT RESPONSIBLE FOR, AND DOES NOT ENDORSE, ANY SUCH CONTENT; (II) MAKES NO GUARANTEES ABOUT THE ACCURACY, SUITABILITY, LEGALITY, RELIABILITY OR QUALITY OF THE INFORMATION CONTAINED IN SUCH CONTENT; AND (III) IS NOT RESPONSIBLE FOR OBJECTIONABLE, INFRINGING, INACCURATE, MISLEADING, OR UNLAWFUL CONTENT CONTAINED WITHIN ANY SUCH CONTENT. ALL THIRD-PARTY EMAIL SERVICES ARE PROVIDED BY EACH THIRD-PARTY PROVIDER STRICTLY ‘AS IS’ AND ‘AS AVAILABLE’ AND ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES WITH RESPECT TO ALL THIRD PARTY EMAIL SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY. NO THIRD-PARTY PROVIDER WILL HAVE ANY LIABILITY UNDER THESE JOB ALERT TERMS OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THESE JOB ALERT TERMS (INCLUDING THIRD PARTY EMAIL SERVICES). IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF ANY PARTY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Customer shall only provide the following data about Customer End Users who have consented to receive Emails: email address, name, job preference, location preference (“Recipient Data”).
Customer acknowledges and accepts that Customer is the data controller and Company is the data processor. During the Term, if Company receives a request from a Customer End User in relation to his or her personal data, Company reserves the right to respond to the Customer End User and also request that the Customer End User submit their question and/or request to Customer directly and in either case, Customer will be responsible for responding to any such request. Pursuant to the foregoing, Customer accepts that Company may provide a Customer End User with pertinent information about Customer including, without limitation, how and from whom Company received the personal data of the Customer End User, the identity of Customer, and the name and contact of Customer’s representative.
Customer will provide Company with a telephone number, email address, and physical address of Customer to include in Emails together with any other informational obligations and/or trading disclosures required under applicable laws in the Republic of South Africa and that of the jurisdiction of the Customer End User.
Customer shall defend (at Company’s option) and indemnify and hold harmless Company and its subsidiaries and their respective officers, directors, employees, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, fines, penalties, liabilities, costs (including reasonable attorneys’ fees), compensation paid to data subjects (including compensation to protect goodwill and ex gratia payments) (“Losses“) incurred by Company and/or the Indemnified Parties and resulting from any third-party claim, suit, action, or proceeding and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority (“Third-Party Claim“) arising from (a) Customer’s breach of any provision of these Job Alert Terms; (b) Recipient Data or Emails; (c) Customer’s failure to comply with applicable Laws; or (d) Customer’s intentional or willful misconduct, or negligence.
The Company will pay Customer fifty percent (50%) of ‘Collected Revenues’ (defined below), received from its clients (“Alerts Revenues”), and resulting from clicks by human Registered Customer End Users on paid job-related hypertext links in job advertisements sent in Emails to Registered Customer End Users (“Paid Alerts Clicks”), where such Paid Alerts Clicks take the Registered Customer End Users to a webpage containing the applicable job description (“Email Revenue Share”). Customer accepts that (i) no Email Revenue Share will be paid for fraudulent and/or artificial clicks or impressions, as determined by the Company in its sole discretion, or for transactions generated by Customer or by a third-party acting on Customer’s behalf; (ii) the Company may request a refund of any Email Revenue Share paid to Customer or withhold sums from the next Email Revenue Share payment due to Customer, in the event of a Payment Error (defined below); (iii) the cost of email delivery to a Registered Customer End User will first be debited from the Email Revenue Share; and (iv) the cost of email delivery to Registered Customer End Users will be debited from the Email Revenue Share (“Email Cost”). Subject to the foregoing, “Collected Alerts Revenues” means gross revenues actually collected by the Company directly in connection with Alerts Revenues after taking into account any standard and commercially reasonable discounts, returns and credits provided by or otherwise incurred by the Company. Notwithstanding the foregoing, the Company may, in its sole discretion, elect to pay an Email Revenue Share in the absence of Collected Alert Revenues (“Uncollected Alerts Revenues”).
Notwithstanding anything to the contrary herein, in the event of any Payment Error (defined below), the amount of Email Revenue Share applicable to the Payment Error shall, at the option of the Company, either be refunded to the Company by Customer within 30 days of a request by the Company or deducted from the next Email Revenue Share payment to Customer. A ‘Payment Error’ shall be deemed to have occurred in the following circumstances (“Payment Error”): (i) if, with respect to Collected Alerts Revenues or Uncollected Alerts Revenues, an Email Revenue Share was made in error, or the amount of the Email Revenue Share was incorrect, or Company is required to return any Collected Alerts Revenues; or (ii) if, with respect to Uncollected Alerts Revenues, the Company does receive Alerts Revenues within a reasonable time in the Company’s sole discretion.
Unless otherwise expressly specified in writing, the Company will pay Customer fifty percent (50%) of ‘Collected Revenues’ (defined below), with respect to applicable ‘client revenues’ (“Backfill Revenues”), received by Company and resulting from clicks by natural or human Customer End Users on paid job-related hypertext links in Backfill Job Ads (“Paid Backfill Clicks”), where such Paid Backfill Clicks takes the Customer End User to a webpage containing the applicable job description (“Backfill Revenue Share”). Customer accepts and agrees that (i) not all hypertext links will be paid listings, and accordingly, not all clicks will result in a Backfill Revenue Share; (ii) no Backfill Revenue Share will be paid for fraudulent and/or artificial clicks or impressions, as determined by the Company in its sole discretion, or for transactions generated by Customer or by a third-party acting on Customer’s behalf; and (iii) the Company may request a refund of any Backfill Revenue Share paid to Customer or withhold sums from the next Backfill Revenue Share payment due to Customer, in the event of a Payment Error (defined below). Subject to the foregoing, “Collected Backfill Revenues” means gross revenues actually collected by the Company directly in connection with Backfill Revenues after taking into account any standard and commercially reasonable discounts, returns and credits provided by or otherwise incurred by the Company. Notwithstanding the foregoing, the Company may, in its sole discretion, elect to pay a Backfill Revenue Share in the absence of Collected Backfill Revenues (“Uncollected Backfill Revenues”).
The Company may request a refund of a previously made Backfill Revenue Share payment or withhold sums from the next Backfill Revenue Share payment due Customer in the following circumstances (collectively, “Payment Error”):
If, with respect to Collected Revenues or Uncollected Revenues, a Backfill Revenue Share payment was made in error or the amount of the Backfill Revenue Share payment was incorrect; or
If, with respect to Uncollected Revenues, (A) the Company does not receive the applicable Backfill Revenues; or (B) the Company is required to return the applicable Backfill Revenues; in such event, the amount of Backfill Revenue Share applicable to the Payment Error shall, at the option of the Company, either be refunded to the Company by Customer within 30 days of a request by the Company or deducted from the next Backfill Revenue Share payment to Customer.
All payments hereunder will be made in South African Rand and are exclusive of sales, use, value added, and similar taxes, which are the responsibility of Customer.
Customer accepts that the Company will share information about the Services provided to Customer and/or about Customer and its representatives (a) with a Customer End User; (b) with a Data Protection Supervisory Authority; (c) with any third-party dispute resolution body; (d) with any government agency or law enforcement agency; and/or (e) with any other party in defence of any claims.