Standard Terms Of Business
Standard Terms and Conditions
These standard terms and conditions apply to services rendered by Technical Financial Services (Midrand) PTY Ltd to a client pursuant to a letter that records the engagement (“the engagement letter”) enclosing these standard terms and conditions or incorporating them by reference.
The meanings of the following words and phrases, which are widely used in these standard terms and conditions, will be as set out below.
Collectively or individually, Technical Financial Services (Midrand) persons and employees.
Any and each person or organisation whose activities you may control, or any other organisation or entity associated with you, if any such person or organisation is identified in the engagement letter as a recipient or beneficiary of the services or any product thereof and any and each person or organisation which we and you agree may be so treated.
The services to be delivered by us under the engagement letter.
The standard terms and conditions and the engagement letter, together with any documents or other terms applicable to the services (‘additional terms”) specified in an engagement letter, as well as any documents or other terms applicable to the services to which specific contractual reference is made in the engagement letter.
1. We will seek to ensure that our services are satisfactory at all times and delivered with reasonable skill and care. If at any time you would like to discuss with us how the service can be improved, you are invited to telephone the partner/director identified in the engagement letter.
2. The engagement will be governed and interpreted in accordance with the laws of South Africa.
3. Where individuals are to be involved in delivering the services, which individuals are named in the engagement letter, we will use reasonable endeavours to ensure that they are so involved. We may substitute those named for others of equal or similar skills.
Our services and responsibilities
4. We may acquire sensitive information concerning your business or affairs in the course of delivering the services, which constitutes personal, trade, business or industrial information not generally known (‘confidential information’). In relation to confidential information we shall comply with the confidentiality standards of the Independent Regulatory Board for Auditors and the South African Institute of Chartered Accountants as well as legislation contained in the Auditing Profession Act, 2005 (Act 26 of 2005) as amended. This restriction shall not apply where confidential information enters the public domain or where we may be required to disclose it to our insurers, legal advisers or under legal compulsion.
5. We may from time-to-time supply oral, draft or interim advice or reports or presentations, but in such circumstances our final written advice or our final written report shall take precedence. No reliance shall be placed by you on any draft or interim advice or report or any draft or interim presentation. Where you wish to rely on oral advice or on an oral presentation, you shall inform us and we shall supply documentary confirmation of the advice concerned.
6. We shall not be under any obligation in any circumstances to update any advice, report or any other product of the services, oral or written, for events occurring after the advice, report or product concerned has been issued in final forms, unless otherwise specifically agreed upon by mutual consent by you and us in the body of the Engagement Letter.
7. Any product of the services released to you in any form or medium shall be supplied by us on the basis that it is for your benefit and information only and that it shall not be copied, referred to or disclosed, in whole (save for your own internal purposes) or in part, without our prior written consent. The services shall be delivered on the basis that you shall not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the services to your bankers and legal and other professional advisers for the purposes of your seeking advice in relation to the services, provided that when doing so you inform them that:
• disclosure by them (save for their own internal purposes) is not permitted without our prior written consent, and
• We accept no responsibility or liability whatsoever and neither do we owe any duty of care to them in connection with the services.
8. Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
9. It may become necessary as the services contract proceeds to change the scope of the services to include matters you may deem appropriate. You will discuss and agree such changes with us, which will include the payment of any additional fees and the period for provision of any additional services. Significant variations in the scope of the services, at your instance, will be the subject of a supplementary Engagement Letter.
10. We shall retain copyright and all other intellectual property rights in the product of the services, whether oral or tangible as well as ownership of our working papers. For the purpose of delivering services to you or other clients, we shall be entitled to use or develop knowledge, experience and skills of general application gained through performing the services. You agree to keep confidential any methodologies and technology used by us to carry out our services.
11. We have the right to use your name as a reference in proposals or other similar submissions to other prospective clients, unless you specifically forbid such disclosure. If we wish to use details of the work done for you for reference purposes, we will obtain your permission in advance.
12. We shall render invoices in respect of the services comprising fees, disbursements and VAT thereon (where appropriate), together with any other foreign taxes (if applicable) that might be payable thereon (“fees”). Details of our fees and any special payment terms will be set out in the engagement letter.
13. Our fees are based on the time spent on your affairs by Technical Financial Services (Midrand) persons or agents, together with disbursements, will be billed as work progresses, and are based on the time required by the resources assigned to the engagement plus out-of-pocket expenses. Individual hourly rates vary according to the degree of responsibility involved and the experience and skill required. The fees may differ from estimates that may have been supplied, which estimates will be provisional only. Stringent reporting requirement or deadlines imposed by you might require work to be carried out a higher level than usual or outside normal working hours. This may result in increased costs. Additional fees may also result from material changes in the services or from difficulties in obtaining information, which could nor treasonable have been foreseen. Invoices are payable on presentation.
14. VAT will be charged on all fees and disbursements at the statutory rate together with any other foreign taxes that might be payable thereon (‘fees’). VAT may qualify for a deduction as input tax by registered vendors.
15. Disbursement in respect of travelling expenses, photocopies, stationery, revenue stamps, postage and telephone calls will be recovered at our predetermined rates.
16. In return for the delivery of services by us, you shall pay our fees, without any right of set-off, on presentation of our invoice. If you are not in agreement with any fee note, you are required to notify us in writing of your objection within 15 business days of the date reflected on the fee note. Failure to do so will constitute your acknowledgement that our fee note is prima facie correct and due and payable.
17. All payments to Technical Financial Services (Midrand) for services shall be made against Technical Financial Services (Midrand) invoices which shall be presented during or after the period of the provision of the services in respect of services provided.
18. In the event of your appointing another adviser in our stead, or otherwise terminating our mandate, we will be entitled to raise a fee note upon receipt of such notification for all work done to date and not yet billed, at our standard charge-out rates, including disbursements incurred. In such event, you undertake to settle our account in full prior to us handing over books and records to you or to your appointee.
19. We shall be entitled to charge interest (at the prevailing prime overdraft rate) on all overdue amounts, for whatsoever reason, outstanding for more than thirty days from the date reflected on our fee note. It is agreed that we may at any time increase or reduce the interest rate by the same margin as and in accordance with a change in the prescribed rates in terms of the National Credit Act. Such interest will be calculated on a monthly basis. All payments will be allocated first to interest, then to disbursements and then to the oldest outstanding fee.
20. You shall retain responsibility and accountability for:
• the management, conduct and operation of your business and affairs;
• any representations made by the company to third parties including published information;
• the adopted policies and prescribed procedures are adhered to for the prevention of errors and irregularities, including fraud and illegal acts;
• the use of, extent of reliance on or implementation of advice or recommendations supplied by us or other products of the services;
• making any decision in respect of the services delivered or any use of the product of the services;
• the delivery, achievement or realisation of any benefits directly or indirectly related to the services that require implementation by you; and
• ensuring that all arrangements are made for access, security procedures, virus checks, facilities, licences and/or consents (without any cost to us), where you require us, or the nature of the services is such that it is likely to be more efficient for us, to perform work at your premises or use your computer systems or telephone networks.
21. To enable us to perform the services, you shall use your best endeavors to procure and promptly to supply all information and assistance, and access to all documentation in your possession or custody, or under your control, and to personnel under your control, where required by us. Where such information and/or documentation are not in your possession or custody or under your control, you shall use your best endeavors to procure the supply of the information and assistance and/or access to all the documentation.
22. You shall inform us of any information or developments which may come to your attention during the duration of the services contract, which might have a bearing on or be relevant to the services we have agreed to provide.
23. We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorized by you to communicate with us for such purposes (‘an authorized person’).
24. We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonable believe to be authorized by you to communicate with us for such purposes (“an authorized person”).
25. We may choose to communicate with you by electronic mail where an authorized person wishes us to do so, on the basis that in consenting to this method of communication, you accept the inherent risks of such communications (including the security risks of interception of or unauthorized access to such communications, the risks of corruption of such communications and the risks of viruses or other harmful devices) and that you shall perform virus checks at your own peril. As you are however aware, the electronic transmission of information cannot be guaranteed to be secure or error free and such information could be intercepted, corrupted, lost, destroyed or incomplete, or arrive late or otherwise be adversely affected or unsafe to use. Accordingly, whilst we will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically and not withstanding any collateral contract, warranty or representation, neither Technical Financial Services nor its directors, employees, agents or servants shall have any liability to you on any basis, whether in contract, neglect (including negligence) or otherwise, in respect of any error or omission arising from or in connection with the electronic communication of information to you.
26. If the communication on which you wish to rely relates to a significant matter and you are concerned about the possible effects of electronic transmission, you should request a hard copy of such communication from us. If you wish us to password-protect all or certain documents transmitted electronically, you should discuss this with us and we will make appropriate arrangements.
27. We may receive information form you or from other sources in the course of delivering the services and:
• we shall consider the consistency and quality of information received by us;
• We shall not seek to establish the reliability of information received from you or any other information source. Accordingly we assume no responsibility and make no representation with respect to the accuracy, reliability or completeness of any information provided to us; and
• we shall not be liable to you for any loss or damage suffered by you arising from fraud, misrepresentation, withholding of information material to the services or other default relating to such material information whether on your part or that of the other information sources.
28. You undertake to supply information in response to our enquiries to enable us to comply with our statutory obligations in terms of the Financial Intelligence Centre Act 38 of 2001 and the Prevention of Organized Crime Act 121 of 1998.
Knowledge and conflicts
29. The engagement team shall not be required, expected or deemed to have knowledge of any information known to colleagues which is not known to them personally, or be required to obtain such information from colleagues. The engagement team shall not be required to make use of, or to disclose any information to you, whether known to them personally or known to colleagues, which is confidential to another client of Technical Financial Services (Midrand).
30. Technical Financial Services persons may be approached to advise another party or parties who are in dispute with you, or to advise or represent the interests of a party or parties whose interests are opposed to yours through their material concern in matters to which the services are specifically and directly related (‘adversarial conflicts’). We seek and shall continue to seek to identify adversarial conflicts. If you know or become aware of any which may arise, you shall inform us promptly.
31. We shall endeavor to have mechanisms operating between Technical Financial Services (Midrand) persons designed to facilitate the protection of each client’s interests through the use of, inter alia, one or more of the following safeguards: separate teams, geographical separation, and operational independence.
32. We shall not accept an engagement which may give rise to an adversarial conflict for an engagement team. Colleagues may accept such an engagement only where effective barriers exist to prevent the flow of confidential information from the engagement team. The existence of such barriers shall constitute full compliance with our duty of confidentiality in relation to adversarial conflict. We may accept such an engagement only when the adversarial conflict is disclosed to all the parties involved and their consent is obtained.
33. Technical Financial Services (Midrand) persons may be approached to advise another party or parties where there is no adversarial conflict but whose interests compete with yours specifically and directly in relation to the subject-matter of the services (‘competing party’ or ‘competing parties’). We seek and shall continue to seek to identify competing parties. If you know or become aware that a Technical Financial Services (Midrand) person is advising or proposing to advise a competing party, you shall inform us promptly. In such situations we shall take appropriate measures to ensure that strict confidentiality is maintained in all respects where such confidentiality is warranted.
34. Where a party being advised by us, has been identified by us or notified by you as a competing party, we shall activate appropriate barriers and when operating we shall be entitled to advise the competing party concerned at any time and in any capacity (save in relation to an adversarial conflict). We will supply you with the detail of the potential adversarial conflict and how this will be approached either before we commence work in accordance with these standard terms and conditions or during the engagement. The existence of appropriate barriers shall constitute full compliance with our duty of confidence in relation to competing parties.
35. Where a party has engaged our services, and during the delivery of our services we are of the opinion, even with the barriers introduced, that your interests or the other party’s interests are likely to be prejudiced, we may, after consultation with you, choose to terminate the services contract and we shall be entitled to terminate the services with immediate effect on written notice to you. We shall not be responsible for any costs that you may incur in securing other professional services.
The service contract
36. The services contract sets out the entire agreement and understanding between us in connection with the services. Any modifications or variations to the services contract must be in writing and signed by an authorized representative of each of us save to the extent provided otherwise in law. No variation of the terms and conditions of the engagement will be of any force or effect, unless reduced to writing and signed by all of the signatories thereto save to the extent provided otherwise in law. In the event of any inconsistency between the Engagement Letter and any other elements of the service contract, the Engagement Letter will prevail. In the event of any inconsistency between these standard terms and conditions and additional terms that may apply, the additional terms shall prevail.
Third party rights
37. The service contract shall not create or give rise to, nor shall it be intended to create or give rise to, any third party rights.
Circumstances beyond our or your control
38. Neither of us shall be in breach of our contractual obligations nor shall either of us incur any liability to the other if we or you are unable to comply with the services contract as a result of any cause beyond our or your reasonable control. In the event of any such occurrence affecting one of us, that one shall be obliged as soon as reasonably practicable to notify the other, who shall have the option of suspending or terminating the operation of the services contract on written notice, which notice will take effect immediately on delivery thereof.
Waiver, assignment and sub-contractors
39. Failure by any one of us to exercise or enforce any rights available to us shall not amount to a waiver of any rights available to either of us.
40. Neither of us shall have the right to cede or assign the benefit or burden of the services contract without the written consent of the other.
41. We shall have the right to appoint sub-contractors to assist us in delivering the services.
Exclusions and limitations of our liability
42. The maximum liability of Technical Financial Services (Midrand) or any Technical Financial Services (Midrand) person in respect of all claims, direct economic loss or damage suffered by you or by other beneficiaries arising out of or in connection with the services provided, excluding audit services, shall be limited to an amount equal to the lesser of the fees charged or the amount paid for the services in respect of which the claim arises. The maximum liability shall be an aggregate liability for all claims arising from whatever source and however arising, whether under the law of contract.
43. In the particular circumstances of the services set out in the Engagement Letter, the liability to you and to other beneficiaries of each and all Technical Financial Services (Midrand) persons in contract or under statute or otherwise, for any indirect or consequential economic loss or damage (including loss of profits) suffered by you (or by any such other party) arising from or in connection with the services, however the indirect or consequential economic loss or damage is caused, excluding our wilful or grossly negligent misconduct, shall be excluded to the extent that such limitation is permitted by law.
44. Technical Financial Services (Midrand) will not be liable to you or any cessionary or third party claiming through or on behalf of you for any punitive damages whatsoever or for any consequential or other loss or damages beyond the maximum liability specified, to the extent that such an exclusion of liability is permissible in law. This engagement is governed by South African law and any claims will be subject to the exclusive jurisdiction of the Courts of South Africa.
45. In further consideration of our agreement to provide these services, you agree to indemnify Technical Financial Services (Midrand) and hold it harmless against all and any claims made against it by any party whatsoever in respect of any loss, damages, costs or expenses referred to above and against the actual costs incurred by Technical Financial Services (Midrand) in defending such claims.
46. In determining the liability of Technical Financial Services (Midrand) for purposes of this paragraph, a court or an arbitrator shall limit the liability of (Technical Financial Services) to that proportion of the loss or damage suffered by you which is ascribed to Technical Financial Services (Midrand) by such court or arbitrator allocating a proportionate responsibility having regard to your contribution to the loss or damage in question, or that of any other person based upon relative degrees of fault; it being a term of the services contract that the provisions of Section 1 of the Apportionment of Damages Act, 1956, will apply to all claims between us and that ‘breach of contract’ and ‘damages’ or ‘losses’ as used herein shall be deemed to fall within the meaning of ‘fault’ and ‘damage’ as contained in the said section of the above Act.
47. Our liability to you shall in no circumstances exceed the lower of the amount determined by the application of the monetary limit provided for in clause 45 above and the amount determined by the apportionment of responsibility as the case may be.
48. You and other beneficiaries shall not bring any claim personally against any Technical Financial Services (Midrand) person in respect of loss or damage suffered by you or by other beneficiaries arising out of or in connection with the services, save as may be expressly permitted in terms of any statute. This restriction shall not operate to limit or exclude the liability of Technical Financial Services (Midrand as a company for the acts or omissions of its directors, employees and agents. Any claim by you or other beneficiaries arising from or in connection with the engagement (or any variation or addition thereto) must be made within 3 years of the date on which you or they became aware, or ought reasonably to have become aware, of circumstances (alleged breach of contract, negligence or other act or omission) giving rise to a claim or potential claim against us. For these purposes a claim shall be made when court or other dispute resolution proceedings are commenced.
49. You shall indemnify Technical Financial Services (Midrand) and any Technical Financial Services (Midrand) persons and hold the aforesaid parties and/or persons harmless against any loss, damage, expense or liability incurred by the parties and/or persons as result of, arising from or in connection with a combination of the following two circumstances:
• any breach by you of your obligations under the services contract and
• any claim made by a third party or any other beneficiaries which results from or arises from or is connected with any such breach
50. Each of us may terminate the services contract or suspend its operation by giving one calendar months’ notice in writing to the other at any time or as otherwise agreed between us. Termination or suspension under this clause shall be without prejudice to any rights that may have accrued to either of us before termination or suspension and all sums due to us shall become payable in full when termination or suspension takes effect. We will be entitled to raise a fee note upon receipt of such notification for an amount adequate to cover all work done to date and not yet billed including disbursements incurred. On termination each of us on request will return any property belonging to the other that it has in its possession. We may retain one copy of any documentation upon which the services are based to enable us to maintain a professional record of our involvement.
51. The following clauses of these standard terms and conditions shall survive expiry or termination of the services contract: clauses 2, 4, 5, 6, 7, 8, 10, 17, 18, 19, 21, 26, 29, 30, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, and 51.
52. Each clause or term of the service contract constitutes a separate and independent provision. If any of the provisions of the services contract are held by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect
53. You agree to and accept the provisions of the services contract on your own behalf and as the agent for other beneficiaries. You shall procure in such circumstances that any other beneficiaries shall act on the basis that they are a party to the services contract, as if they had each signed a copy of the Engagement Letter and agreed to be bound by it. However, you alone shall be responsible for payment of our fees.
54. Your signature constitutes agreement to settlement of any dispute, controversy or claim by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa. The arbitration shall be held before a single arbitrator – nominated by you and Technical Financial Services (Midrand) or failing agreement between us within 7 days after the arbitration has been demanded, appointed by the Secretariat of the Arbitration Foundation of Southern Africa. The arbitrator shall deliver a written award setting forth findings of fact, conclusions of law and the reasons for the decision. The arbitrator’s award shall be final and binding on both parties and shall not be subject to appeal.
55. Our staffs undergo periodic training and this, together with the taking of annual leave, may lead to staff turnover and lack of continuity. We will use our best endeavours to avoid any disruption to an engagement’s progress.
56. You hereby consent to the jurisdiction of the Magistrate’s Court Act No 32 of 1944 of any district having jurisdiction in terms of section 28 of the said Act, in any action instituted by us against you arising from this agreement.