These terms and conditions (“Terms and Conditions”) govern the relationship between Pretire and the Candidate ("Agreement").
1.1. In this Agreement, unless the context clearly indicates a contrary intention, the following words will have the following meanings and cognate expressions will have corresponding meanings:
2.1. Pretire is a web-based and/or App-based recruitment agency that specializes in matching highly-experienced Candidates to Clients that offer Candidates Employment for purposes of rendering the Services.
2.2. Pretire has approached Clients that are reasonably regarded as industry leaders within the industry/field of expertise in which they operate, and Pretire has accordingly established a reputable and highly sought-after Client base.
2.3. The purpose of this Agreement is to provide the terms and conditions to which the Employment of Candidates by Clients is subject.
2.4. Nothing in this Agreement shall be construed between the Parties as constituting employment service or temporary employment service as contemplated in section 198 of the Labour Relations Act, 55 of 1995, or any other applicable statute or law. The Parties hereby expressly acknowledge and agree that notwithstanding any interpretation of this Agreement, directly or indirectly or in any manner whatsoever, it is not the intent of the Parties to enter into any agreement that may create an employer-employee relationship, whether temporary or otherwise, or any other relationship that may fall within the ambit of the Labour Relations Act, the Basic Conditions of Employment Act or any other act or regulation that is applicable to issues of employment.
Pretire shall provide the web – based and/or App – based service of facilitating the Introduction of a Candidate to the Client, and the Client accepts the provision of such services provided by Pretire.
4.1. Pretire shall not be obligated to list a Candidate on this website and/or App until such time as a Candidate has:
4.2. The selection process shall be outsourced to an entity (“Selection Panel”), which Pretire in its sole discretion deems to be reasonably competent to perform such function.
4.3. The Selection Panel shall conduct a reference check on the Candidate, which reference check shall include, amongst others, whether a Candidate:
4.4. The Selection Panel, in consultation with Pretire, may in their sole discretion determine such additional criteria as may be necessary to ensure that the Selected Candidates are reasonably reliable, competent and possess the necessary experience to be considered within the caliber of Candidates that Pretire wish to list on its website and/or App.
4.5. For the avoidance of doubt, only Candidates, which have been approved by the Selection Panel will be listed on Pretire’s website and/or App.
4.6. In order to safeguard the confidentiality of Candidates, the information obtained from the reference check, will only be made available upon written request by Client prior to Employment, subject to a Candidate giving his/her consent thereto.
5.1. Fixed Term Contract Placements:
Should a Candidate be Introduced to the Client and the Client Employs such Candidate on a fixed term contractual basis, the following shall apply:
5.1. Independent Contract Placements:
Should a Candidate be Introduced to the Client and the Client Employs such Candidate on an independent contractual basis, the following shall apply:
5.3. Permanent Placements:
Should a Candidate be Introduced to the Client and the Client Employs such a Candidate on a permanent basis (regardless of any probation period), the following shall apply:
5.4. In the event of the Client having previously received a curriculum vitae of a Candidate for any reason whatsoever from such Candidate or another third party source, and for whatever reason makes use of Pretire's Introduction services as contemplated in this Agreement to facilitate the successful Employment of such Candidate with the Client, a placement fee shall be payable by the Client to Pretire calculated similarly in accordance with the provisions of clauses 5.1, 5.2 and 5.3 as the case may be.
6.1. Unless otherwise stated, all amounts payable by the Client to Pretire are exclusive of VAT, and the Client shall be liable to pay VAT at the ruling rate to Pretire in respect of any such amount payable on representation of a VAT invoice by Pretire to the Client.
6.2. Any amounts payable by the Client to the Candidate for the Services shall be paid by the Client to Pretire. Pretire shall be entitled to deduct the placement fees (described above) due and payable to Pretire in accordance with this Agreement and, thereafter, pay the balance to the nominated bank account of the Candidate, provided that the Candidate has invoiced Pretire for such portion of the amount payable to them by the Client.
6.3. All payments made by the Client to Pretire shall be made in cash, without deduction or set-off into the bank account nominated by Pretire in writing from time to time.
6.4. The Client shall not be entitled to withhold, set-off or defer any payment to Pretire for any reason whatsoever,
6.5. A certificate signed by any director Pretire (whose appointment and authority it shall not be necessary to prove) specifying the amount due and payable by the Client shall be full and sufficient proof of the amount due and payable to Pretire in terms of this Agreement.
6.6. In the event of Pretire instructing attorneys to collect from the Client an amount owing to Pretire, the Client agrees to pay all costs on the scale as between attorney-and-own-client, including collection charges.
6.7 A monthly fee is charged to candidates for being listed on the Pretire app and website. The fee is intended to be reflective of the value-add and candidate services that are provided by Pretire in the interest of representing its candidates.
With effect from the Effective Date and for a duration of 2 years thereafter, the Candidate irrevocably and unconditionally undertakes in favour of Pretire, its successors in title and assigns, that it shall not, either alone or jointly, directly or indirectly, circumvent Pretire in concluding a further employment contract, of any nature whatsoever, with the Client (including, but not limited to, its directors, shareholders, agents, consultants, employees, subsidiaries, holding company, or any of its affiliates) pursuant to the Effective Date.
8.1. For the duration of this Agreement Pretire undertakes to the Candidate to:
8.2. For the duration of the Agreement, the Candidate undertakes and irrevocably, and unconditionally warrants in favour of Pretire to:
Nothing in this Agreement shall constitute, or be deemed to constitute, a partnership, joint venture or agency between the Parties hereto and neither Party shall have the authority to bind the other or to contract in the name of the other, or create a liability against the other in any way or for any purpose.
10.1. Pretire accepts in good faith that details and information supplied by the Candidate to it are true and correct and therefore does not warrant or represent that the Candidate is fit for the specific purpose for which the Client has appointed the Candidate, and Pretire shall not be responsible for any errors, omission or misrepresentations on behalf of the Candidate, or for any claims of whatsoever nature arising in this regard.
10.2. Pretire has sourced the Candidate based upon the information provided to it by the Candidate. The Candidate’s particular experience and suitability for the services required by the Client have been independently assessed by the Client who have satisfied themselves in respect thereof and have accepted the Candidate on that basis.
10.3. In light of clause 10.2 above, whilst every care and endeavour has been made with regard to assessing the competence and honesty of Candidates, Pretire cannot give any warranties in this regard, nor can Pretire be held responsible for any damages whatsoever, howsoever arising from any actions of Candidates facilitated through the Introduction. The Client indemnifies and holds Pretire harmless against any loss, damage, liability, claim, expense or penalty whatsoever sustained by the Client in this regard.
10.4. The Candidate accepts that his/her Contract of Employment with the Client is separate and divisible from this Agreement and accordingly Pretire cannot give any warranties, nor can Pretire be held responsible for any damages whatsoever, howsoever arising from any actions of Clients facilitated through the Introduction. The Candidate indemnifies and holds Pretire harmless against any loss, damage, liability, claim, expense or penalty whatsoever sustained by the Client in this regard.
11.1. Should any dispute arise between the Parties to this Agreement in regard to:
11.2. The arbitration shall be held:
11.3. The arbitrator shall be, if the matter in dispute is principally:
11.4. Should the Parties fail to agree on an arbitrator within 5 days after the arbitration has been demanded then the arbitrator shall be nominated by the Chairman for the time being of the Cape Bar Council.
11.5. Should the Parties fail to agree whether dispute is of a legal, accounting or other nature within 7 days after the arbitration has been demanded then it shall be considered a matter as referred to in clause 11.3.3 above.
11.6. The arbitrator shall have the fullest and freest discretion with regard to the proceedings and his award shall be final and binding on the Parties to the dispute. Furthermore, the arbitrator:
11.7. Nothing in this clause 11 shall be construed as prohibiting either Party from obtaining relief on an urgent basis from the Western Cape High Court.
The Candidate consents to the jurisdiction of the Magistrate’s Court in terms of Section 45 of the Magistrate’s Court Act, No 32 of 1944 having jurisdiction under Section 28 of the said Act, notwithstanding that the claim by Pretire exceeds the normal jurisdiction of the Magistrate’s Court as to amount. Pretire shall, in its discretion, be entitled to proceed against the Candidate in any other court of competent jurisdiction, notwithstanding the aforegoing.
If any Party (“Defaulting Party”) commits a breach of this Agreement and/or fails to comply with any of the provisions hereof, then the other Party shall be entitled to give the Defaulting Party 7 days’ notice in writing to remedy such beach and/or failure and if the Defaulting Party fails to comply with such notice, then the other Party shall forthwith be entitled, but not obliged, without prejudice to any other rights or remedies which the other Party may have in law or in terms of this Agreement, including the right to claim damages:
14.1. Circumstances beyond the control of Pretire shall be sufficient excuse for any delay or suspension in the providing of services by Pretire to the Client.
14.2. This Agreement is personal to the Parties. Accordingly, no Party may cede any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Parties.
14.3. Any document prepared by Pretire remains its exclusive property and any information relating to any Candidate shall remain confidential and shall not be passed on to a third party.
14.4. In the event of the Client forwarding details of the Candidate to any other company, subsidiary, associate company or third party, within 12 months after the Introduction, who in turn Employs the Candidate in any way whatsoever, the Client shall be liable for an applicable placement fee as if the Client himself had employed the Candidate.
14.5. No alteration, cancellation, variation of, or addition hereto shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.
14.6. These Terms and Conditions contains the entire Agreement between the Parties and no Party shall be bound by any undertakings representations, warranties, promises or the like not recorded in this Agreement.
14.7. No indulgence, leniency or extension of time which any Party may grant or show to any other Party, shall in any way prejudice or preclude the Party granting any such indulgence, leniency or extension of time from exercising any of its rights in the future.
14.8. All terms and provisions of this Agreement are deemed to be independent of each other and accordingly, if any term is found to be invalid, unlawful or unenforceable, such term or provision shall be deemed to be pro non scripto and the remainder of the Agreement shall continue to be of full force and effect.