Terms of Service

February 2023 | Version 1.0

1. Introduction

These are the general terms of our relationship with you and regulate your use of the website. They cover any transactions where we provide services to you. Our website is a recruitment portal, where freelancers advertise their skills and where you can acquire these services by using our website. Under these terms:

  • we are the service provider - we are Freelance Culture (Pty) Ltd (Registration number 2014/122536/07), also known as Freelance Cape Town; and
  • you are the customer – someone who uses our services.
No one likes service providers who throw legal jargon in their customers’ faces to try and wash their hands of all wrongdoing – that’s not fair. We try our best to tell you where our responsibility ends and yours begins in a clear, concise and understandable way. For this reason, we’ve written these terms in plain language. Please contact us if anything doesn’t make sense or you want us to explain it better.

2. Agreement

2.1 Composition. The agreement consists of these terms of service and any other specific terms applicable to the services.

2.2 Definitions. In the agreement:

  • business day means any day other than a Saturday, Sunday, or holiday (including a public or bank holiday) in the jurisdiction where we are organised;
  • business hours means our normal business hours on business days;
  • day means a day counted from midnight to midnight, including all days of the month, Saturdays, Sundays, and public holidays;
  • freelancer means any person registered on our platform to provide services to you, but who is not employed by us and earns money on a per-job basis / per-task;
  • sign means the handwritten signature or an electronic signature that the parties agree to use, of each of the parties’ duly authorised representatives;
  • we, us or our means the service provider;
  • writing means the reproduction of information or data in physical form or any mode of reproducing information or data in electronic form that the parties agree to use, but excludes information or data in the form of email; and
  • you or your means the customer.

2.3 Interpretation. The following rules apply to the interpretation of the agreement:

  • reference headings – clause and subclause headings are for reference only and do not affect interpretation;
  • non-exhaustive lists – whenever a clause lists specific examples or items following a listing word, such as ‘including’, ‘includes’, ‘excluding’, or ‘excludes’, they will not limit its scope;
  • undefined words or phrases – all words or phrases that the agreement does not define have their ordinary English meanings;
  • enactment references – references to any enactment include it as re-enacted, amended, or extended;
  • person references – references to a person includes a natural and juristic person;
  • party references – references to a party includes their successors or permitted assigns;
  • number of days – when any number of days is prescribed, the first day will be excluded and the last day included;
  • no interpretation against the draftsman – the rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply; and
  • time calculations – the parties will use GMT +2 to calculate any times.

2.4 Departure. These terms apply to all our customers and are not generally open to negotiation for reasons of consistency. Should the parties negotiate any departure from these terms, they will record that departure in an annexure or other specific terms.

2.5 Communication. We provide the website as a portal to you. All communication between you and the freelancer will take place within the website and we will not provide you with any contact details of our freelancers, but the freelancer may choose to share their contact details with you once they start with your job/project;

2.6 Conflict. If there is a conflict of meaning between these terms and any word or phrase in another document or other specific terms, the meaning in the other document or specific terms will prevail in respect of the relevant services.

3. Duration

3.1 Commencement. These terms start whenever you accept them by:

  • doing so explicitly – such as by registering on the website or ticking a checkbox that you do;
  • using the services in any way – such as by accessing them; or
  • exercising any rights granted to you under the agreement; and
continue until terminated.

4. Services

4.1 Use our services. You use our services whenever you use our website to acquire the service of the freelancers whose services we advertise.

4.2 Capacity and authority. You promise that you have the legal capacity and authority to enter into the agreement.

4.3 Invitation to do business. Marketing is merely an invitation to do business and we only conclude the agreement when we actually provide the services to you. This happens when you use our platform.

4.4 Cancellations. We may cancel our services, but we will refund any money you have paid in relation to the services if we do.

4.5 Right. We grant you a right to use the services subject to the following limitations:

  • duration of agreement – you may use the services for until your subscription expires, or, until your services are terminated by wither party;
  • limited to terms – you may only use the services according to these terms;
  • non-exclusive – we may allow anyone else to use the services;
  • non-transferable – you may not transfer the right to anyone else;
  • specified purposes – you may only use the services for the specified purposes that we’ve communicated to you in writing from time to time; and
  • other limitations – any other limitations agreed between the parties in writing.

4.6 Breach. We may suspend or cancel your right at our discretion if you breach the agreement.

5. Online services

5.1 Basis. We provide the online services to you on the following basis:

  • you give us permission to monitor how you use them for security and stability purposes;
  • we are not responsible for any outputs and provision of services of the freelancers – responsibility to meet deadlines, to provide services and to recover fees for their services provided, are that of the freelancer, we are not responsible for the relationship between you and the freelancer. Any service level, scope change and sign-off is between you and the freelancer; and
  • you agree that our records are undisputed evidence of the services provided to you.

5.2 Access conditions. We will only provide online service access to you or your authorised users (where you are a juristic person) on the conditions that you or each one of them will:

  • accurately provide us with any information that we ask for on registration or account creation;
  • create or have the necessary credentials (such as a username and password) assigned to them on registration or account creation;
  • look after their credentials and not give them to anyone else;
  • not interfere with or introduce any malicious software into the online services or otherwise misuse them;
  • be responsible for any activity that happens under their account, even if someone else was actually acting under their credentials;
  • have the necessary infrastructure, equipment and software to access the online services;
  • abide by the agreement and any policies that we communicate to them in writing; and
  • any other conditions agreed between the parties in writing.

5.3 Availability. We will do our best to make the online services available at all times, however we cannot guarantee that they will always be available and error free. We may make them unavailable for scheduled and emergency maintenance.

6. Your data

6.1 Definition. Your data is any data belonging to you or your customer that:

  • you or your customer (or any third party on your behalf) provide to us; or
  • we generate, process, or supply to you or your customer in providing the services;
which may or may not include personal data (your name, email address and password), but excludes any derived data that we create for our own purposes or which is proprietary or confidential to us or our third party contractors.

6.2 You own it. You own all your data, but give us a right to use it to provide the services when you provide us with access to it.

6.3 We do not own it. We do not own any of your data. However, we do own our derived data. Your data does not include any derived data that we create for our own internal purposes. Derived data is any of our own data that we create from your data, such as through aggregation, de-identification, or anonymisation.

6.4 Responsibility. We take the protection of your data very seriously and will always do our best to protect it. However, we are not responsible for any of your data stored on the online services or the data you provide to the freelancers, you provide it to us at your own risk, and you indemnify us against any liability for it to the extent allowed by applicable law, including liability for data breaches, unauthorised access, and third party claims

6.5 Location. Your data will remain wherever we place it initially, unless we have to transfer it to another country to comply with our obligations to you. us transferring it to our group of companies, associated companies, service providers, or agents who may be located in other countries for the purpose of providing the services.

7. Confidential information

7.1 Definition. Confidential information is any information that the parties share with one another in terms of this agreement with the intention that the other party should keep it secret, such as personal data, business records, or customer details.

7.2 Responsibilities. Each party will keep any confidential information it receives from the other party under the agreement confidential and the receiving party will:

  • protect the other party’s interests;
  • only use it to comply with their responsibilities under the agreement;
  • only give it to their employees or agents that need it (and only as much as they need);
  • use reasonable security procedures to make sure their employees or agents keep it confidential;
  • get promises of confidentiality from those employees or agents who need access to the information;
  • not reveal the information to anyone else; and
  • not use it for any purpose other than under this agreement.

7.3 End of agreement. The parties will give back to the other all confidential information of the other that they have at the end of the agreement, unless:

  • the other party agrees that they may destroy or retain it instead;
  • it is lawfully in the public domain;
  • someone else (a third party) who is allowed to reveal it gives it to them; or
  • someone gives it to them to comply with a court order or other legal duty.

7.4 Indemnity. Each party indemnifies the other against any loss or damage that the other may suffer because of a breach of this clause by a party or its employees or agents.

7.5 Survival. This clause about confidential information is separate from the rest of this agreement and remains valid for five years after the end of this agreement.

8. Intellectual property

8.1 Ownership. We or our third party licensors own all proprietary rights in any intellectual property that is part of our services and we or they may prosecute you for any violations of those rights.

8.2 Our technology. Our technology is anything that we have or acquire rights in and may use to perform our obligations under the agreement.

8.3 Retention of rights. We own all intellectual property rights in our technology and you may not use those rights without our permission. You do not acquire any rights in our technology that we use to provide services to you.

8.4 Our trademarks. Our trademarks are our property and you may not use them without our permission. All other trademarks are their respective owners’ property.

8.5 Restrictions. You may not change, hire out, reverse engineer, or copy the services without our permission.

8.6 Your intellectual property. You grant us a non-exclusive and royalty-free licence to use any of your trademarks and copyright works which you deliver to us for the purposes of providing the services. We may not use them for any other purpose without your prior written permission. The licence expires automatically when the agreement ends. You retain all rights in your trademarks and copyright works despite this licence.

9. Fees and payment

9.1 Payment. You will pay us the fees on the due date in the manner agreed between the parties in writing. You may not withhold payment of any amount due to us for any reason.

9.2 Late payments. Additional charges agreed between the parties in writing apply to any payment we receive after the due date and you must pay them to us on demand. We may stop providing any services until you have paid all amounts due.

9.3 Interest. Overdue amounts on any outstanding invoice will bear interest for our benefit from its due date until you pay it at whichever rate is higher between:

  • 2% above the prime (or prime lending) rate; or
  • 15%.
Interest will be payable on a claim for damages from when the damages were suffered.

9.4 Appropriation. We may use any money you pay us to settle your indebtedness under the agreement, despite any particular reason you may have paid it to us.

9.5 Certificate. We may appoint an accountant to sign a certificate that will be proof of the amount due by you and the date on which it is payable.

9.6 Tax. All fees exclude any tax (unless indicated otherwise). You will be liable to pay applicable taxes in addition to the fees.

9.7 Payment profile. We may provide any registered credit bureau with information about your payment of amounts.

10. Our warranties

10.1 Service warranties. We warrant that we will:

  • employ enough trained personnel with the knowledge and expertise to provide the services;
  • use reasonable efforts consistent with prevailing industry standards to maintain the services; and
  • provide the services in accordance with all applicable laws.

10.2 General warranties. We warrant further that we:

  • have the legal right and authority to perform our obligations under the agreement; and
  • will not intentionally introduce any malicious software into your systems.

11. Disclaimer of warranties

11.1 Disclaimer. You use the services at your own risk and we disclaim all other warranties to the extent allowed by applicable law. We are not liable for any defect that you or a third party causes.

11.2 Exclusion of liability. Despite our warranties, we are not liable for any defects that your negligence, failure to follow our instructions, or misuse causes.

12. Your warranties

12.1 Agreement warranties. You warrant that:

  • no one has induced you to enter into the agreement by any prior representations, warranties or guarantees; and
  • you are not breaching any other agreement by entering into the agreement.

12.2 Indemnity. You indemnify us against any claim for damages by any third party resulting from a breach of your warranties, including all legal costs. Legal costs means the costs that a lawyer may recover from their client for their disbursements and professional services if permissible under applicable law.

13. Limitation of liability

13.1 Direct damages limited. We are only liable to you for any direct damages that the services may cause up to the total amount of fees that you have already paid us for them. We are not liable for any direct or indirect damages caused by you or the freelancers.

13.2 Indirect damages excluded. We are not liable for any other damages or losses that the services may cause you.

13.3 Your default. We are not liable for any damage or loss that your breach, misrepresentation, or mistake causes.

13.4 Survival. This clause about limitation of liability is separate from the rest of this agreement and remains valid after the end of this agreement to the extent allowed by applicable law.

14. Breach and termination

14.1 Breach. If you breach theses Terms of Service and don’t remedy it within in accordance with the law Freelance Cape Town may take legal action against you.

14.2 Suspension. We may immediately suspend your right to use the services if:

  • you try to gain unauthorised access to them;
  • we decide that your use poses a security threat to us or another user other than you;
  • there is evidence of fraud on your account; or
  • we believe you are using them for an illegal purpose or in way that infringes a third party’s rights.

15. Termination

15.1 Termination for good cause. We may need to terminate the services immediately if we:

  • believe providing the services could burden or pose a risk to us;
  • have to terminate to comply with a law; or
  • determine that providing the services has become impractical.
If we need to terminate, we will give you as much notice as reasonably possible in writing.

15.2 Duties on termination. We will stop providing the services, you will no longer be able to access them, and we may erase your data on termination, cancellation, or expiry of the agreement.

16. Effect of termination

16.1 Acceleration. All amounts due to us for the services become due and payable on termination, cancellation or expiry of the agreement.

16.2 Assistance. We may provide you with post termination assistance (such as data retrieval) subject to additional fees and conditions, but are not obliged to.

16.3 No expectation. The agreement does not create any expectation of continued service, agreement renewal, or any further agreement between the parties.

17. General

17.1 Resolving disputes. Either party may inform the other in writing if there is a dispute. The parties must first try to negotiate to end the dispute, then enter into mediation if negotiation fails, and finally go to arbitration if mediation fails. If they go to arbitration, they will agree in writing on a recognised and appropriate forum for arbitration that is accessible to both parties.

17.2 Notices and domicile. The parties will send all notices to each others’ email addresses and choose their respective street addresses as their service addresses for all legal documents. Our email and street addresses are available on our website, while you provide your email and street addresses to us when concluding the agreement. The parties may change either address on 14 calendar days written notice to the other.

17.3 Beyond human control. Neither party is responsible for breach of the agreement caused by circumstances beyond human control, but the other party may cancel the agreement on written notice to the other if the circumstances persist for more than 60 calendar days.

17.4 Assignment. You may not assign the agreement to anyone. We may assign it to any successor or purchaser of our business or some of our assets.

17.5 Relationship. The agreement does not create an employment relationship between the parties.

17.6 Entire agreement. The agreement is the entire agreement between the parties on the subject.

17.7 Waiver. Any favour we may allow you will not affect any of our rights against you.

17.8 Severability. Any term that is invalid, unenforceable, or illegal may be removed from the agreement without affecting the rest of it.

17.9 Governing law. South African law governs this agreement.

17.10 Mediation. If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules. AFSA means the Arbitration Foundation of Southern Africa (or its successor or body nominated in writing by it in its stead).

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

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