Terms and Conditions
This Agreement is entered into and is binding between (i) AES Global Proprietary Limited t/a AES (“AES”) and (ii) all persons (whether natural or juristic), including yourself, who engage the services of AES (“Client”/”your”), each referred to as a “Party” and collectively as the “Parties”. Your continued communication and engagement with AES shall constitute your unconditional acceptance of this Agreement, on the terms and subject to the conditions contained herein. The Parties hereby agree as follows.
1. Introduction:
AES assists its clients with the employment of candidates by facilitating the introduction of candidates to its clients, and the Client is or may be in need of a candidate(s) for its business. AES is not obliged to introduce candidates to the Client but AES may, in exchange for payment of an introduction fee as set out herein, introduce candidates to the Client on an “as needs basis” in accordance with the terms of this Agreement.
2. Term:
This Agreement shall endure indefinitely from the date that the Client first engages AES to facilitate the introduction of a potential candidate as contemplated in clause 1 above , provided that either Party may terminate this Agreement on delivery of 30 days’ written notice to the other Party, read together with clause 8.4 below .
3. Introduction Fee(s):
3.1. In this Agreement:
3.1.1. “Affiliate” means any company or close corporation that is related to the Client by means of common ownership of shareholding or members interest, or by other means of Control;
3.1.2. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management, business and policies of a person, whether through ownership of voting securities, by appointing a majority of the directors or controlling persons of such person, and whether by contract or otherwise;
3.1.3. “Permanent Term” means where a candidate is employed by the Client or an Affiliate for a term equal to or exceeding 12 months; and
3.1.4. “Temporary Term” means where a candidate is employed by the Client or an Affiliate for a term of less than 12 months.
3.2. The fee payable by the Client to AES for a:
3.2.1. Permanent Term shall be the greater of (i) 18% of a candidate’s first year’s total cost-to-company amount offered by the Client or an Affiliate, as the case may be, or (ii) R20,000.00; and/or a
3.2.2. Temporary Term shall be 25% of the agreed hourly rate between the candidate and the Client or an Affiliate, which hourly rate shall be multiplied by the number of hours to be worked by the candidate, which fees shall be payable by the Client to AES in the event that the Client or an Affiliate employs or engages a candidate introduced by AES to the Client or the Affiliate (whether on a Permanent or Temporary Term and in any capacity whatsoever), as the case may be, at any time within a period of 18 months from the date of such introduction by AES.
3.3. The Client shall provide AES with a candidate’s contract of employment (or any similar such contract) forthwith on AES’ written request for the same.
3.4. If for any reason the Client or an Affiliate withdraws an engagement to employ a candidate introduced by AES to the Client or Affiliate, as the case may be, the Client shall be liable to AES for a minimum fee of 5% of the fee determined in terms of clause 3.2.1 (in the case of a Permanent Term) or 5% of the fee determined in terms of clause
3.2.2 (in the case of a Temporary Term), payable by the Client to AES forthwith upon the Client or Affiliate’s withdrawal of such engagement.
4. Payment Terms:
4.1. Unless expressly provided for to the contrary, all fees due to AES under this Agreement are payable by the Client within 5 business days after commencement of a candidate’s employment with the Client or an Affiliate, whether for a Permanent or Temporary Term and in any capacity whatsoever. AES shall provide an invoice to the Client in respect of the relevant fee payable on or before the commencement of a candidate’s employment.
4.2. All amounts payable to AES by the Client shall be exclusive of VAT at the then prevailing rate, and shall be paid by the Client free of any deduction, exchange or set-off of any nature whatsoever.
4.3. All amounts overdue by the Client shall accrue interest at a rate of 2% compounded monthly in arrears, from the due date for payment until date of payment received (both days inclusive).
4.4. Any unpaid fees due to AES by the Client shall be settled immediately by the Client upon cancellation or termination of this Agreement by either Party.
5. Replacement Facility:
If a candidate resigns or is terminated from the Client or an Affiliate’s employment within 3 months from the date of employment (whether temporary (on probation) or permanent), AES will endeavour (without being obliged) to replace the candidate free of charge, provided that AES’ initial fee for such candidate, as set out in clause 3 , has been paid timeously and in full by the Client, and the Client notifies AES of such resignation/termination within 7 days thereof.
6. Confidentiality:
6.1. AES shall respect the confidentiality of the Client. Similarly, the Client shall keep confidential all candidate information passed on to it by AES. Accordingly, all candidate information provided by AES to the Client shall not be disclosed by the Client to any third party without the prior written consent of AES.
6.2. Both Parties shall treat the terms of this Agreement as confidential and shall not disclose the terms hereof to any third party without the prior written consent of the other.
6.3. AES is not liable for any misrepresentation, misstatement, loss, damages, costs or expenses of any nature whatsoever that the Client may suffer arising from, or in connection with, the introduction of a candidate to the Client or the Affiliate, as the case may be.
7. Prohibition Against Hiring of AES Staff:
7.1. The Client acknowledges and agrees that (i) AES’ employees are a key asset of AES, in which AES has a proprietary interest, and that (ii) the recruitment, enticement and/or employment of such employees would cause damage to AES. Therefore, the Client agrees that it shall not (and shall procure that its Affiliates shall not), without the prior written consent of AES, whether alone or jointly or directly or indirectly, solicit, deal, recruit, or entice to its employment any employee and/or former employee of AES, during such employee’s tenure with AES and for 12 months from the date of termination of the employee’s contract of employment
with AES.
7.2. If an employee or former employee of AES is employed by the Client or an Affiliate in breach of this clause 7 , and without prejudice to AES’ rights (including the right to claim damages), the Client shall pay to AES an amount equal to 20% of such employee’s first years’ salary, forthwith on demand.
7.3. The Client agrees that the restraints set out above are reasonable as to subject matter and duration, and are further reasonably necessary and required to protect the proprietary interests, general interest and clients of AES and to preserve the trade secrets, clientele and maintain the goodwill of AES.
8. General:
8.1. This Agreement constitutes the sole and entire agreement between the Parties and supersedes all other agreements, whether oral or in writing.
8.2. No partnership, joint venture, agency, employment or any other relationship, other than an independent contractor, is created hereby. Neither Party shall be entitled to give any undertaking which will create an obligation of whatsoever nature or kind binding on the other.
8.3. Each Party warrants to the other Party that it is has the power, authority and legal right to sign and perform
this Agreement and that this Agreement has been duly authorised by all necessary actions of its
directors/members/trustees (as the case may be) and constitutes valid and binding obligations on it in terms of
this Agreement.
8.4. The cancellation or termination of this Agreement shall not affect any rights of either Party which accrued prior
to the date of cancellation or termination.
8.5. No variation of, addition to, consensual cancellation of or waiver of provision, term or any right arising in terms
of this Agreement shall be of any force or effect unless it is reduced to writing and signed by the Parties or a
duly authorised representative of each of the Parties.
8.6. The invalidity, in whole or in part, of any of the provisions of this Agreement will not affect the validity of the remainder of this Agreement.
8.7. This Agreement shall be governed in all respects by the law of the Republic of South Africa.
