TERMS AND CONDITIONS RELATING TO ONE STOP DOMESTIC EMPLOYMENT SERVICE AND ITS CLIENTS
DEFINITIONS RELEVANT TO THESE TERMS AND CONDITIONS
“OSD” means One Stop Domestic Employment Service, a sole proprietorship which is owned and its business conducted by, Nicole Van Der Westhuizen.
“The Client” means any person (personal or corporate), who utilises the services of OSD in respect of a domestic worker in order to obtain domestic services.
“The Domestic Worker” means any domestic or commercial cleaner and any nanny/childminder/gardener, who is in the market to render domestic services and whose profile is advertised by OSD on its website.
“Domestic Services” means the services to be rendered by a domestic worker (either domestic or commercial cleaning, or those of a nanny/childminder/gardener), in terms of any service agreement concluded between the client and a domestic worker.
“Service Agreement” means any agreement concluded between a client and a domestic worker in terms of which the domestic worker shall render to that client domestic services for remuneration, notwithstanding the nature of any such agreement, which includes but is not limited to, an agreement of employment or an agreement under which the domestic worker shall render to the client domestic services as an independent contractor, and further including any such agreement which is concluded either verbally or in writing.
“Remuneration” means the standard remuneration which becomes due by the client to the domestic worker in return for the rendering of the domestic services in terms of any service agreement (in accordance with the standard remuneration rates and in respect of the standard working hours).
“The Standard Remuneration Rates” means in respect of any domestic cleaner, any commercial cleaner and any nanny/childminder/gardener, R225.00 per day (or any increase thereon in terms of the provisions of paragraph 18.2 below), in respect of Mondays to Saturdays (or any higher rate per day that might be agreed to between the client and the Domestic Worker in terms of a service agreement), and double the aforesaid rates in respect of a Sunday and a public holiday (only if the Domestic Worker works on the public holiday).
“Standard working hours” means 8 hours per day (excluding a lunch break), in respect of Monday to Friday and a Sunday, and 6 hours per day (excluding a lunch break), in respect of a Saturday.
“Additional Remuneration” means any additional remuneration (over and above the standard remuneration rates), due and payable in terms of any service agreement and related to a bonus or for overtime work beyond the standard working hours and as prescribed under the Basic Conditions of Employment Act 75 of 1997 and in terms of any applicable Sectoral Determination promulgated in terms of Section51(1) of the said act.
“Payroll or Payrolling” means an arrangement in terms of which the client effects payment of the remuneration to OSD which in turn, effects payment of the remuneration to the domestic worker.
“UIF registration” and “UIF Contribution” respectively mean the registration of the client as the employer of the Domestic Worker with the Department of Labour for the purposes of UIF (if applicable), and any contribution which is payable ( in relation to the domestic worker), by the client and that domestic worker in terms of the prevailing legislation and rules and regulations of the Unemployment Insurance Fund, consequent upon the conclusion of a service agreement.
“COIDA registration” means the registration of the client and his or her Domestic Worker under and in terms ofthe Compensation for Occupational Injuries and Diseases Act
“Service Fees” means the fees charged by OSD to the client in terms of paragraph 8 below.
“Tax Obligations” means any and all obligations of the domestic worker (in terms of the prevailing Income Tax legislation and it’s rules and regulations), to pay Income Tax to the South African Revenue Services consequent upon the conclusion of a service agreement and the receipt by the domestic worker of remuneration and additional remuneration (if applicable).
“Website” means the website utilised from time to time by OSD in the conduct of its business.
“Client Profile” means the profile concerning the client, created through the website once the client registers for the services of OSD.
“E-Wallet” means an electronic accounting system which will record amounts paid by the client from time to time and amounts owed by the client from time to time in respect of remuneration and service fees.
“Once-off Booking” means any booking made by a client through the website for the domestic services of a Domestic Worker in relation to no more than one day per calendar month, or for more than one day per calendar month but for irregular non-recurring week days during each applicable week occurring during each applicable calendar month and on a once-off basis.
“Recurrent Booking” means a booking made by a client through the website for the domestic services of a Domestic worker for one or more days per calendar month and for the same recurring week day (or days), of each applicable week occurring during each applicable calendar month and on an open ended, indefinite basis.
“Refresher Training” means a prescribed training course designed by OSD and given to all domestic workers advertised on the website, which includes a practical segment and a segment dealing with work ethics.
“LRA” means the Labour Relations Act 66 of 1995.
“BCEA” means the Basic Conditions of Employment Act 75 of 1997.
“COIDA” means the Compensation for Occupational Injuries and Diseases Act 130 of 1993.
“SECTORAL DETERMINATION 7” means the sectoral determination 7 concerning the Domestic Worker Sector made and published under section 51 of the BCEA.
THE BUSINESS OF OSD
OSD conducts a business as follows:
Facilitating the introduction of Domestic Workers to clients who may be interested in their services by the advertising of the identity, skills and availability of Domestic Workers on its website so as to enable clients to pair a particular Domestic Worker with the client’s individual requirements (wherever such a pairing is possible or, if not, as closely as possible).
Advertising Domestic Workers who have rendered Domestic Services previously and who have completed refresher training with OSD.
Taking once-off or recurrent bookings from clients for the Domestic Services of particular Domestic Workers as placed by clients from time to time through its website.
Rendering Payroll Services, COIDA registration, UIF registration and UIF contribution services on behalf of the client in relation to remuneration and charging service fees in relation to those services.
OSD does not employ any Domestic Worker booked by a client. The client employs any such Domestic Worker to render domestic services in terms of a Service agreement. The parties record that the client will be the employer of any such Domestic Worker (and not OSD), by virtue of the provisions of section 213 (definition of employee thereunder), and section 200A of the LRA. The parties record further that the client will be the employer of any such Domestic worker (and not OSD), by virtue of the fact that OSD is not a temporary employment service as defined in the LRA or (should it ever be found to be a temporary employment service), then by virtue of the provisions of section 198A(1)(a) read with section 198A(3)(b) of the LRA.
Performing certain additional services and activities ancillary to the aforesaid as may be referred to elsewhere in these Terms and Conditions.
APPLICABILITY OF THESE TERMS AND CONDITIONS
These Terms and Conditions become binding and applicable as between OSD and The Client in any or all of the following circumstances:
When the Client accepts electronically the application of theses Terms and Conditions on the OSD website whilst either registering as a Client or whilst booking Domestic Services. Any such electronic acceptance by the client shall constitute a binding agreement with OSD in the same way (and with the same legal effect), as if such acceptance had been personally signed by the Client.
On the successful registration of a Client on the OSD website.
On the booking of domestic services and the utilising of domestic services by a Client through the OSD website.
On the utilisation by the Client of the Payroll Services, COIDA registration, UIF registration and contribution services offered by OSD or on the utilisation by the client of any other service offered by OSD and referred to in these Terms and Conditions.
THE WEBSITE/CLIENT REGISTRATION/CLIENT PROFILE
Any client who is interested in obtaining Domestic Services and utilising any or all of the Payroll Services, UIF registration and contribution services or COIDA registration services offered by OSD (or any other service referred to in these Terms and Conditions), will be required to register as a client through the website.
On registration a client will be prompted to furnish certain personal information through the website and the said information will be utilised to create a profile/account for the client.
The client shall be responsible for updating his or her profile/account from time to time (through the website), as the relevant personal information of that client may change.
The basis upon which OSD utilises any personal information furnished by the client for the purposes of registration or the creation of a profile/account, is set out in the OSD Privacy Policy which is available for review by the client on the website.
BOOKING OF A DOMESTIC WORKER BY A CLIENT
The client is able to book a Domestic Worker and Domestic Services through the website as follows:
Concerning once-off bookings, by following the prompts on the website relating to such bookings. Further concerning such bookings, the client will be obliged to affect a booking on each and every occasion that it requires the Domestic Services of a Domestic worker on a once-off basis. Further concerning such bookings, the client will be obliged to affect a separate booking for each Domestic Worker, should the client require the services of more than one Domestic Worker on the same day.
Concerning recurring bookings, by following the prompts on the website relating to such bookings. Further concerning such bookings, they shall remain in place on a recurring and indefinite basis unless altered by the client in terms of the provisions of paragraph 6 below.
CANCELLATION OR ALTERATION OF BOOKINGS BY THE CLIENT
The client may cancel or alter bookings relating to a domestic worker and domestic services as follows:
Concerning cancellation of a once-off booking, by following the prompts on the website relating to the cancellation of the booking in question by no later than 9am on the day before the date of the booking.
If a once-off booking is cancelled by a client later than as aforesaid, the client shall be liable for payment of both the remuneration and the service fee related to that booking. If a once-off booking is cancelled by a client timeously and the client has paid the remuneration and service fees in that regard in advance, then such payment shall be either refunded to the client or credited to his or her E-Wallet (whichever the client elects).
Concerning cancellation of a recurring booking, directly by the client with the domestic worker by no later than 9am on the day before the date of the booking, after the client has complied with relevant Labour Law procedures concerning the cancellation of the services of that domestic worker (whether in terms of the LRA or BCEA and if applicable). If such cancellation is affected by the client, then he or she must also confirm the cancellation with OSD and the reason for the same, through the website.
If a recurring booking is cancelled by a client later than as aforesaid, the client shall remain liable for payment of any Remuneration and Service Fee relating to that booking. If such cancellation is affected by the client timeously and the client has paid the Remuneration and services Fees in that regard in advance, then such payment shall either be refunded to the client or credited to his or her E-Wallet (whichever the client elects).
In the event that a client books a Domestic Worker who has not worked for that client before (either on a once-off or on a recurring basis), and then cancels the said booking timeously as aforesaid, a cancellation fee shall be applicable concerning the first day of the said booking such that the client will forfeit both the remuneration and service fee in relation to that first day.
Concerning the alteration of a recurring booking (in respect of particular days of work but not reducing the number of days of work), directly by the client with the domestic worker by cancellation of the booking in question and affecting a new recurring booking, alternatively by affecting that alteration throught the website, should it offer that option.
Concerning the alteration of a recurring booking which reduces the number of days of work, by cancellation of that recurring booking in accordance with the provisions of paragraphs 6.3 and 6.4 above and affecting a new recurring booking in accordance with the provisions of paragraph 5.2 above, alternatively by affecting that alteration through the website should it offer that option, after that client has complied with relevant Labour Law procedures concerning the reduction of that Domestic Worker’s days of work (whether in terms of the LRA or BCEA and if applicable).
Concerning the alteration of a once-off booking by the client with the domestic worker directly, by cancellation of the booking in question and affecting a new once-off booking, alternatively by affecting that alteration through the website, should it offer that option.
UNAVAILABILITY OR FAILURE OF THE DOMESTIC WORKER TO RENDER DOMESTIC SERVICES IN ACCORDANCE WITH BOOKINGS
Should the domestic worker either be unavailable or fail to render domestic services in terms of any booking (with or without notice to OSD and the client), then the following provisions shall apply:
In the case of a once-off booking, the client shall not be responsible for payment of the Remuneration and Service Fee in that regard and will be refunded or receive a credit to his or her E-Wallet of the same (at the clients’ election and should the same have been paid in advance by the client) . In the event that either the domestic worker or the client notify OSD timeously of any such unavailability or failure on the part of the domestic worker, then OSD shall endeavour to secure and offer to the client an alternate domestic worker to render domestic services in relation to the booking concerned (alternatively for another day), in which event the client shall be liable for the remuneration and service fee concerning such alternate domestic worker.
In the case of a recurring booking, the client shall not be responsible for payment of the Remuneration and Service Fee concerning the particular day not worked (unless such day is authorised leave) and will be refunded or receive a credit to his or her E-Wallet of the same (at the clients’ election and should the same have been paid in advance by the client).In the event that either the domestic worker or the client notify OSD timeously of any such unavailability or failure on the part of the domestic worker, then OSD shall endeavour to secure and offer to the client an alternate domestic worker to render domestic services in relation to the day concerned (alternatively for another day), in which event the client shall be liable for the Remuneration and Service Fee concerning such alternate domestic worker.
SERVICE FEES
The service fees of OSD payable by the client shall be the following:
Concerning a once-off booking, R50.00 for each day the domestic services are to be rendered (or any increase thereon in terms of the provisions of paragraph 18.2 below), which is in return for the payrolling by OSD of the domestic worker’s remuneration and for the provision of a payslip.
Concerning a recurring booking, R30.00 for each day the domestic services are to be rendered (or any increase thereon in terms of the provisions of paragraph 18.2 below), which is in return for the payrolling by OSD of the domestic worker’s remuneration and for the provision of a payslip.
Concerning a recurring booking, R10.00 for each day the domestic services are to be rendered (or any increase thereon in terms of the provisions of paragraph 18.2 below), which is in return for the administration by OSD (on behalf of the client), of the UIF contribution. In this regard the client’s portion of the UIF contribution will be paid by OSD and is included in the service fee referred to above. The service fee referred to above further includes OSD’s management of the Client’s u-Filing profile, including monthly UIF declaration submission and manual monthly UIF payment. This administration service will be attended to if requested by the client on the website and is not compulsory. The client is entitled to elect to attend to the UIF contribution on his or her own in which event the client shall bear the sole responsibility therefore.
Concerning a recurring booking, R299.00 as a once-off fee (or any increase thereon in terms of paragraph 18.2 below), which is in return for OSD attending (on behalf of the client), to the UIF registration. This service will be attended to if requested by the client on the website and is not compulsory. The client is entitled to elect to attend to the UIF registration on his or her own in which event the client shall bear the sole responsibility therefore.
The services related to the UIF contribution and registration referred to in paragraphs 8.3 and 8.4 above shall not include any service concerning any annual renewal of the client’s registration as an employer or for UIF required by the South African Revenue Services or the Unemployment Insurance Fund from time to time, these additional requirements shall be attended to by the client and OSD shall not be responsible therefore.
Concerning any type of booking, R299 as a once-off fee (or any increase thereon in terms of paragraph 18.2 below) which is in return for OSD attending (on behalf of the client), to the COIDA registration. OSD’s service is limited to the said registration only and the client shall attend to the payment of the COIDA contribution and to the submission of any returns that may be required on his or her own and shall bear the sole responsibility therefore. OSD shall not be responsible for collection or payment of the said contribution or for the submission of required returns.
PAYMENT OF REMUNERATION AND SERVICE FEES
The client shall be obliged to affect payment of the Remuneration and Service Fees as follows:
In relation to once-off bookings, in advance at the time the booking is made. OSD shall then pay the Domestic worker all fortnightly accumulated Remunerations (on behalf of the client) and provide a payslip to the client (for delivery to the Domestic Worker) twice a month.
In relation to recurring bookings, in advance for the first day of each new booking and thereafter by weekly recurring payments on a Thursday, either per manual e-wallet top up or by subscription service. OSD shall then pay the Domestic worker the Remuneration (on behalf of the client), twice per month and provide a payslip to the client (for delivery to the Domestic Worker), twice per month.
Concerning the fees referred to in paragraphs 8.4 and 8.5 above, in advance on the request of OSD and prior to the UIF registration or COIDA registration as the case may be.
PAYMENT METHOD
OSD will accept payment from the client of the remuneration and applicable service fees in accordance with paragraph 9 above, by one of the following methods of payment:
By immediate Electronic Funds Transfer so that the same reflects in OSD’S bank account timeously. Should the client select payment by this method a 1% discount on both the remuneration and applicable service fees. The discount shall be appied by charging 1% less than the full amount owed by the client and then by crediting the client’s e-wallet with the full amount.
By Credit Card, Debit Card or Cheque Card Payment so that the same reflects in OSD’S bank account timeously.The client herewith accepts the fact that, once a payment has been made on the OSD website, using a credit card, debit card, cheque card or any other valid payment card, this card will automatically be signed up for subscripton service, meaning the client can still manually top up the e-wallet, but should the client fail to do so on time, the amount due for the next One Stop Domestic weekly payment cycle, (which runs on Thursdays for the week ahead :Friday to Thursday), will automatically be deducted on Thursdays.
By Subscription Payment. If the client elects this method of payment then the client is obliged to ensure his or her provided card details are up to date at all times to ensure that the payment to be called for (weekly in case of a recurring booking and immediately in case of a once-off booking),can be successfully collected by OSD through its payment gateway (the terms and conditions of which the client is obliged to make himself or herself familiar with).
Payment by set off against amounts standing to the clients’ credit in the E-Wallet more fully referred to in paragraph 12 below. If the client elects this payment method, he or she must ensure that any such credit is sufficient to cover the particular Remuneration and Service Fee he or she intends to pay by this method.
Any applicable QR code payment, scan to pay or click to pay.
When the client makes a recurring boooking for the first time, OSD shall charge the client both for remuneration and the applicable service fees for one extra buffer day than the number of days in relation to which that booking is for. The said additional charges shall be credited to the e-wallet of the client and will remain there for the duration of this agreement.
FAILURE TO PAY BY THE CLIENT
In the event that the client fails to affect payment of the Remuneration and Service Fees timeously as set out in paragraph 9 above, there shall be an automatic cancellation of the booking in relation to which such Remuneration and Service Fees are due and owing and no Domestic Services shall be rendered in terms of that booking.
CLIENT’S E-WALLET
OSD shall maintain an E-wallet on the client’s profile. The purpose of the E-Wallet shall be as follows:
To keep an accounting of any advance payments made by the client to OSD from time to time.
To keep an account of any refund credits due to the client under these Terms and Conditions (should the client elect that refunds due should be credited to the E-Wallet and not directly refunded to him or her).
INDEMNITIES
The client hereby indemnifies and holds OSD harmless in any and all of the following circumstances and in relation to any claim arising therefrom which otherwise could be made by the client, a Domestic Worker or by any third party against OSD (this indemnity extends to claims made against OSD in relation to capital payments, interest and legal costs, and also to OSD’s legal costs in relation to defending any such claim):
Any down time or technical irregularities in or to the website due to no fault of OSD and beyond the control of OSD.
Should any Domestic Worker be incapable or unfit in relation to the domestic services required by the client. Whilst OSD takes reasonable efforts to ensure that the Domestic Workers advertised on the website are able and fit, it cannot give any guarantee in this regard.
Should the Domestic Worker steal the client’s property or commit any other act of dishonesty against the client. Whilst OSD provides all the Domestic Workers advertised on its website with refresher training (which includes work ethics), and contacts previous employers to verify the ethics of the Domestic Worker, OSD cannot guarantee honesty.
Should the Domestic Worker damage any of the client’s property.
Should the Domestic worker not arrive for work on time or at all.
Should the Domestic worker fail to follow instructions given by the client.
Should the Domestic Worker commit any disciplinary offence against the client as the employer.
Should the client (as employer of the Domestic Worker), institute any disciplinary action against the domestic worker notwithstanding whether such action is found to be fair or unfair and notwithstanding whether such action results in the termination of the Domestic worker’s employment.
Should the Domestic Worker institute any legal action against OSD arising from the rendering of Domestic Services to the client or arising from any disciplinary action taken against the Domestic Worker by the client.
Should the Domestic worker suffer injury or death whilst rendering domestic services to the client.
Should any content on the clients’ profile be incorrect or out of date.
Should any content on the website concerning the domestic worker be incorrect or out of date.
Should any previous reference in respect of any Domestic Worker (from any previous employer), contained on the website, turn out to be inaccurate or incorrect.
Should any privacy protection control in respect of the Website or the Client Profile on it is breached by any third party. Whilst OSD makes its best efforts to protect the privacy of both the website and the client’s Profile, it cannot guarantee this aspect.
Should the client fail to keep confidential any password or identity information relating to the Client’s profile.
Should the Domestic Worker cause any loss or damage, injury or death either to the client or to any third party who may be present at the address at which domestic Services are rendered.
Should the client contravene (as employer of the Domestic Worker), any applicable provision of the LRA, BCEA, OHS or the SECTORAL DETERMINATION 7.
DUTIES/WARRANTIES OF THE CLIENT
In addition to anything else set out in these Terms and Conditions, the client has the following duties and makes the following warranties in favour of OSD:
The client shall not commit any act or omission which could result in the breaching or contravention of OSD’S intellectual property referred to in paragraph 15 below.
The client shall utilise the website and his or her profile for the purposes mentioned in these Terms and Conditions and not for any other purposes, in particular not for any unlawful purpose.
The client shall treat and keep as confidential any and all information which comes to his or her attention concerning the intellectual property of OSD referred to in paragraph 15 below, and any business methods or business practices employed by OSD. The client shall not divulge this information to any other third party.
The client shall keep and treat as confidential the identity and details of all Domestic Workers advertised on the website and shall not disclose the same to any third party who may be interested in hiring these services of a domestic worker, or at all.
The client is encouraged to keep OSD informed of any problems or difficulties he or she may encounter with any Domestic worker and of the nature of any such problems or difficulties.
The client shall ensure that his or her profile is kept up to date and accurate at all times.
The client shall provide OSD with any and all information and assistance from time to time as might be reasonably necessary to enable OSD to perform the services referred to in these terms and conditions.
The client shall comply with all of his or her duties as employer of the Domestic Worker in terms of the labour laws including as prescribed by the LRA , BCEA, OHS and the SECTORAL DETERMINATION 7.
INTELLECTUAL PROPERTY
The parties hereby confirm the following concerning the Intellectual Property Rights of OSD:
That OSD is the owner and developer of its business methods and practices.
That OSD is the owner and developer of the website.
That OSD is the owner of any and all intellectual property attendant upon those issues referred to in paragraphs 15.1 and 15.2 above and that the client shall not by virtue of the conclusion of these Terms and Conditions, acquire any rights whatsoever in and to the said intellectual property.
TAXATION OBLIGATION AND ADDITIONAL REMUNERATION
The following provisions apply to the Taxation Obligations and Additional Remuneration:
Nothing in these Terms and Conditions shall be interpreted so as to create any involvement of OSD with any Taxation Obligations or Additional Remuneration which may become applicable between the client and a Domestic Worker as a result or arising from a service agreement.
Consequently, the client shall be responsible for attending to any Taxation Obligations as the employer of the domestic worker and similarly responsible for the payment of any Additional Remuneration.
LABOUR GUIDE
OSD has published on the website a Labour Guide, which may give assistance to the client in his or her position as the employer of the Domestic worker in order that the client be informed of his or her rights and obligations as an employer of a Domestic Worker. Access to the said Labour Guide is available to the client at an additional once-off fee payable to OSD, in the amount of R99.00.
GENERAL
The following general provisions shall be applicable as between the parties:
OSD shall be entitled to affect amendments and alterations to these Terms and Conditions from time to time. OSD shall notify the client by email of any such amendments or alterations and the same shall become binding between the parties on the basis set out in paragraph 3 above, “mutatis mutandis”.
OSD shall be entitled to increase the Domestic Workers remuneration referred to in paragraph 1.7 above (as maybe required by legislation or in relation to annual increases and from time to time), to increase any of the service fees referred to in paragraph 8 above and to increase the fees referred to in paragraphs 17 above and 18.3 below ( in accordance with its charging policy from time to time). OSD shall advise the client of any such increases by notification on its website and the same shall become binding between the parties on the basis set out in paragraph 3 above, “mutatis mutandis”.
In the event of the client wishing to utilise the services of any Domestic Worker advertised on the website independently of the involvement of OSD and outside of the provisions of these Terms and Conditions, the client shall be obliged to terminate these Terms and Conditions in accordance with the provisions of paragraph 19 below and effect payment to OSD of a finder’s fee in the amount of R2199.00 per Domestic Worker. This fee is to compensate OSD for loss of income subsequent to this eventuality occurring.
No other term or condition not contained in these Terms and Conditions (with the exception of amendments and alterations referred to in paragraphs 18.1 and 18.2 above), shall be of any applicability between the parties unless reduced to writing and signed between them or agreed to electronically.
No fee is raised by OSD under these terms and conditions (consequently OSD is not remunerated), in respect of the Website, the coming together of the client with a Domestic Worker, the introduction of a Domestic Worker to the client, or in respect of the conclusion of any service agreement which may occur between the client and a Domestic Worker.
TERMINATION OF THESE TERMS AND CONDITIONS
Either party shall be entitled to terminate these Terms and Conditions with immediate effect by the furnishing of written notice to the other party through the website. Neither party shall be obliged to furnish any reason for termination. In the event of such termination, the client shall nevertheless remain obliged to affect payment of any amount which might otherwise be due and owing to OSD under these Terms and Conditions, prior to or at the date of such a termination.