CCS Business Consultants Standard Terms and Conditions
All accounting, tax and related management consultancy services provided by CCS Business Consultants, shall be subject to the terms and conditions outlined herein, which shall be read together with the contents of the Engagement Letter and Formalised Quotation, as if specifically incorporated herein.
Definitions
Words and phrases set out below have the following meanings, and cognate expressions shall bear corresponding meanings:
Accounting Services means the processing of financial information including bank statements, petty cash reports, supplier invoices and payroll payments to trial balance stage;
Additional Services means any additional services rendered by CCS on an ad hoc basis, at the Client’s specific instance and request, and which fall outside of the scope of the initial Formalised Quotation, as agreed to between the Client and CCS on the Commencement Date;
Agreement means these Standard Terms and Conditions, together with the Engagement Letter and Formalised Quotation, which collectively shall be considered to be the complete recordal of the formal relationship between CCS and the Client, and which, collectively, shall set out, inter alia, the rights, responsibilities, duties and obligations of the respective Parties;
Annual Financial Statements mean the Client’s statement of financial position, statement of comprehensive income, cash flow statement, notes to the financial statements and detailed income statement, accounts receivable and accounts payable age analysis and stock control report, if applicable;
Appointment means the appointment of CCS by the Client to render Services on his/her/its behalf;
Budget / Cash-flow means the drafting of the Client’s expected income and expenses over a 12 (twelve) month period;
CCS Business Consultants (hereinafter referred to as “CCS”) means a professional partnership recognised as such in accordance with the relevant laws of the Republic of South Africa, which is owned and managed by partners in agreement and conjunction with each other, and which conducts business as such through its duly appointed employees, agents, consultants and/or contractors, as and when required;
Client means the entity(ies), or the person(s), named and described in the Engagement Letter to which/whom services are to be rendered by CCS, at their/its special instance and request;
Commencement Date means the agreed date on which the respective duties and obligations, rights and responsibilities of the respective Parties shall vest and become enforceable in accordance with these Standard Terms and Conditions, irrespective of the Signature Date hereof;
Completed Services refers to the product or result of the rendered Services, reduced to writing, whether in hard copy or electronic format, created or prepared by CCS for the Client;
Debtors Control means a general overview of Client-processed transactions on accounts receivable, and discussion of outstanding accounts;
Engagement Letter means the formal notification to which these Standard Terms and Conditions are appended, as prepared by CCS, at the request of- and agreed to by the Client, and which further shall form, together with these Standard Terms and Conditions and the Formalised Quotation, a complete recordal of the Agreement between the Parties;
Fees means the professional fees and expenses charged by CCS for Services rendered, which fees exclude VAT, and for which the Client agrees be liable for payment in terms of this Agreement;
Financial Meeting means all formal, scheduled meetings attended by CCS with the Client;
General Tax Planning means the analysis of the Client’s current financial situation from a tax perspective, assessment of associated tax liability and plan, so as to ensure compliance by the Client by means of available legislative and prescribed allowances, deductions, exclusions, exemptions, etc;
Management Financial Statements means the Client’s statement of financial position, statement of comprehensive income, accounts receivable, accounts payable and age analysis;
Payroll Administration means the electronic processing of the Client’s employee and sub-contractor appointments, leave approvals as well as payment confirmations, generating of electronic pay-roll reports and pay-slips, and furthermore performing IRP5 reconciliations and generating certificates (over a 6 and 12 month period), submission of Client information for: Pay As You Earn (PAYE), Unemployment Insurance Fund (UIF), Skills Development Levy and Compensation Fund, as determined by the respective authorities and applicable legislation, regulations and guidelines;
Party/ies shall mean either collectively or individually, as the context may require the parties to this agreement, being CCS and the Client, and correspondingly, “Party” shall refer to any one of them, as the context dictates;
Request for Additional Services means a request, made by the Client for any Additional Services to be rendered by CCS;
SARS means the South African Revenue Services;
Services means accounting, business, tax and related management consultancy services to be rendered by CCS to the Client, which shall be set out in more specificity in the Formalised Quotation and any Additional Services to be rendered by CCS at the Client’s special instance and request;
Signature Date means the date on which the last-signing of the Parties to this Agreement append their signature hereto, and accordingly the date on which this Agreement shall be deemed to have been concluded;
Standard Terms and Conditions means this document, and together with the Engagement Letter and Formalised Quotation constitutes the complete recordal of the Agreement between the Client and CCS, and further, this document, when signed, will contain the record of the rights and responsibilities, duties and obligations of the respective Parties;
Sundry Charges means disbursements and out-of-pocket expenses incurred by CCS in course and scope of providing the Services to the Client. These include all reasonable expenses necessary for the successful completion of the Services including, but not limited to: travelling, subsistence, goods and services purchased on the Client’s behalf, communications, stationery, report and presentation material, secretarial time and software charges. The Client will be charged for such expenses at predetermined rates and in accordance with the Formalised Quotation;
Tax Administration means the electronic processing and submission of the Client’s tax returns, as determined by SARS and in accordance with the relevant and most recent legislation, regulations and guidelines;
VAT means value-added tax as described in the Value-Added Tax Act, 89 of 1991, as amended;
VAT Submission means submissions of VAT201 returns to SARS.
2. Interpretation
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement or any clause hereof.
Unless a contrary intention clearly appears –
words importing –
any one gender, include the other genders;
the singular, include the plural and vice versa; and
natural persons, include created entities (corporate or unincorporated) and the state and vice versa;
Where a conflict of any nature arises between the contents of the Engagement Letter and these Standard Terms and Conditions, these Standard Terms and Conditions will prevail.
3. Appointment, Duration and Validity
The Engagement Letter to which these Standard Terms and Conditions and the Formalised Quotation are appended, once signed and dated by both the Client and a CCS partner, shall be deemed to constitute a valid and binding Agreement between the Parties, from the Signature Date and for the duration of the Agreement.
In terms of this Agreement CCS is appointed by the Client, for the duration of the Agreement, to render the Services, as agreed between CCS and the Client, and for a pre-determined and agreed fee.
The Formalised Quotation, will from the date of presentation thereof to the Client, and until such time as same is either accepted or rejected by the Client, be deemed to be a formal proposal or quotation to the Client in respect of the proposed Services and will be valid and open to acceptance or rejection by the Client for a period of thirty (30) calendar days.
The Parties agree that this Agreement, as concluded between them shall endure for a period of twelve (12) months, from the Commencement Date, unless otherwise indicated herein.
4. Fees
In respect of the Services:
CCS charges a professional fee in respect of the Services rendered at the Client’s special instance and request, and which fee is fully set out in the Engagement Letter and Formalised Quotation appended hereto.
CCS shall prepare and present invoices to the Client on a monthly basis, for services rendered, expenses, and disbursements incurred in the previous calendar month, as agreed and in terms of this Agreement or unless agreed otherwise upon completion of the Services, whichever is earlier in time.
The Client agrees to pay the invoices, as presented by CCS together with any VAT payable and calculated thereon, immediately on presentation thereof or by no later than 17h00 on the 25th calendar day of each preceding month.
The Client agrees to pay the full invoice amount, as presented by CCS, via electronic bank transfer into the nominated bank account held in the name of CCS Business Consultants, at Standard Bank, Lynnwood Ridge with branch number 01-24-45 and account number 012198390. The Client further agrees to tender proof of payment of the invoice, by way of e-mail, and to the address as set out hereunder in clause 16.
Interest will be charged at the Standard Bank prime lending rate, as it may be from time to time, on all outstanding invoiced amounts which have, for whatsoever reason, been outstanding for a period longer than thirty (30) calendar days from the date reflected on the CCS invoice, or the date of presentation thereof to the Client, whichever is the earliest. Such interest will be calculated on a daily basis and compounded monthly, and all payments received in respect of such outstanding invoiced amounts will be allocated first to repayment of the accrued interest, then to payment of disbursements, and then only to the payment of the oldest outstanding invoiced amounts.
The Client hereby renounces all benefits arising from the legal exceptions non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts and, no value received and any other exceptions which may be pleaded in a Court of competent jurisdiction in respect of the legal validity of invoices tendered in terms of this Agreement.
The Client further undertakes to pay all costs, including legal costs on an attorney-client scale, collection commission, tracing charges and expenses which may be incurred, to trace the residential address and/or place of employment and/or place of business of the Client, in respect of any action or proceedings instituted or steps taken by CCS and/or it’s duly appointed attorneys, against the Client or any other legal person liable for payment of invoices presented by CCS on behalf of the Client, or which may be instituted against him/her/it in future for the recovery of any monies due and payable to CCS in terms of this Agreement.
The Client acknowledges and agrees that CCS reserves the right to suspend provision of the agreed Services, immediately and until all outstanding invoiced amounts have been paid in full. The Client further indemnifies and holds harmless CCS for any and all damages that may be suffered, whether directly or indirectly, by the Client or any other third party, as a result, directly or indirectly, of the suspension of the Services, under such circumstances.
The Client accepts and agrees that CCS reserves the right to increase the Fees charged in respect of the Services, and in the event of a change in the scope, nature and extent of the Services, and/or in the event of a prescribed fee or tariff payable to a third party or authority increasing, and/or under such circumstances as the Engagement Letter and Formalised Quotation are not accepted within a period of thirty (30) calendar days from the date of presentation thereof to the Client.
In respect of Additional Services:
It is agreed between the Parties that the Client may request CCS to perform Additional Services on an ad hoc basis from time to time, and that any such Request for Additional Services may be made by way of e-mail correspondence, telephonically, in person or by means of electronic messaging services (e.g. WhatsApp) – all of which shall be considered to be made in writing for the purposes of this Agreement.
CCS reserves the right to decline any Request for Additional Services, in the sole discretion of CCS’ partners.
Prior to commencing with any Additional Services, CCS will provide the Client with a quotation in respect of the professional fees associated with the Additional Services, which quotation will be valid and open to acceptance or rejection by the Client for a period of thirty (30) calendar days from date of presentation thereof.
CCS charges a professional fee in respect of the Additional Services rendered at the Client’s special instance and request – the nature, scope and extent of which will be communicated to the Client together with presentation of the aforementioned quotation, the acceptance of which by the Client will constitute a valid and binding agreement between CCS and the Client in respect of the rendering of the Additional Services.
CCS shall prepare and present an invoice to the Client in respect of the Additional Services rendered, immediately on completion of the Additional Services, for services rendered, expenses, and disbursements incurred in accordance with the aforementioned quotation.
The Client agrees to pay the invoice in respect of the Additional Services, as presented by CCS together with any VAT payable and calculated thereon, immediately on presentation thereof.
The Client agrees to pay the full invoice amount, as presented by CCS, via electronic bank transfer into the nominated bank account held in the name of CCS Business Consultants, at Standard Bank, Lynnwood Ridge with branch number 01-24-45 and account number 012198390. The Client further agrees to tender proof of payment of the invoice, by way of e-mail, and to the address as set out hereunder in clause 16.
Interest will be charged at the Standard Bank prime lending rate, as it may be from time to time, on all outstanding invoiced amounts which have, for whatsoever reason, been outstanding for a period longer than thirty (30) calendar days from the date reflected on the CCS invoice, or the date of presentation thereof to the Client, whichever is the earliest. Such interest will be calculated on a daily basis and compounded monthly, and all payments received in respect of such outstanding invoiced amounts will be allocated first to repayment of the accrued interest, then to payment of disbursements, and then only to the payment of the outstanding invoiced amounts.
The Client hereby renounces all benefits arising from the legal exceptions non numeratae pecuniae, non causa debiti, errore calculi, revision of accounts and, no value received and any other exceptions which may be pleaded in a Court of competent jurisdiction in respect of the legal validity of invoices tendered in terms of Additional Services rendered.
The Client further undertakes to pay all costs, including legal costs on an attorney-client scale, collection commission, tracing charges and expenses which may be incurred, to trace the residential address and/or place of employment and/or place of business of the Client, in respect of any action or proceedings instituted or steps taken by CCS and/or it’s duly appointed attorneys, against the Client or any other legal person liable for payment of invoices presented by CCS on behalf of the Client, or which may be instituted against him/her/it in future for the recovery of any monies due and payable to CCS in terms of Additional Services rendered.
The Client accepts and agrees that CCS reserves the right to increase the Fees charged in respect of the Additional Services, and in the event of a change in the scope, nature and extent of the Additional Services, and/or in the event of a prescribed fee or tariff payable to a third party or authority increasing, and/or under such circumstances as the quotation presented by CCS in terms of this clause is not accepted within a period of thirty (30) calendar days from the date of presentation thereof to the Client.
The Client acknowledges and agrees that certain of the Services rendered to it/him/her by CCS are required by the relevant legislation, regulations and/or guidelines (as the case may be) to be performed and/or submitted to the relevant authority on an annual basis, and/or within a prescribed financial period (for example, Annual Financial Statements, Management Financial Statements, etc.). The Client further records its/his/her understanding that in rendering these Services in a professional and timely manner, CCS will need to perform and/or make submissions on its/his/her behalf at a time that may fall outside the recorded duration of this Agreement. It is hereby recorded that the Parties acknowledge that any such submissions or Services rendered beyond the recorded duration of this Agreement are so submitted, performed or rendered on the basis of the Services rendered during the recorded duration of this Agreement – as is the inherent nature of the Services.
Further to the acknowledgement and agreement recorded in clause 4.3 above, the Client agrees that the Services rendered to it/him/her by CCS, which are specifically required to be rendered, performed or in respect of which submissions are made by CCS on its/his/her behalf, at a time falling outside of the recorded duration of this Agreement, are included in the description of the Services as recorded in the Formalised Quotation, and in respect of which the Client has agreed to pay a pro rata portion of the fees associated therewith, on a monthly basis, accumulating over the entire duration of this Agreement. For this reason, the Parties agree further that despite being rendered, performed or submissions made in respect thereof, outside of the recorded duration of this Agreement, such services are specifically included in the definition and scope of the Services.
5. Client Responsibilities
It shall be the responsibility of the Client to ensure that he/she/it maintains a bank account with any recognised Financial Services Provider within the Republic of South Africa, and to channel all monies received and payments made through the same account.
In order to enable CCS to provide the services, the Client will be responsible for:
making all management decisions and performing all management functions, including: deciding which recommendations and or alternatives, as proposed by CCS in the course and scope of rendering the Services, to accept and implement;
designating a competent management member to act as a liaison between the Client and representatives of CCS and otherwise oversee and facilitate the rendering of the Services;
evaluating the Completed Services presented by CCS in respect of the Client’s specific requirements;
establishing and maintaining internal controls and risk management procedures as well as determining the adequacy of related systems and procedures within the Client’s own corporate structure;
monitoring ongoing financial activities within the scope of the Client’s personal finances and/or business activities;
maintaining accounting records. This means that the Client is responsible for adequately recording all receipts, payments, sales, income, purchases, expenses, assets, liabilities and capital of the Client’s business;
making all financial records and related necessary information available to CCS, on demand or so soon thereafter as reasonably possible;
safeguarding the assets of the Client;
considering and approving the Annual Financial Statements and/or Management Financial Statements compiled, prepared and presented by CCS; and
making the necessary and prescribed payments to Governmental Departments and other relevant authorities including SARS, the Companies and Intellectual Property Commission (CIPC), Unemployment Insurance Fund, etc., and accordingly the Client agrees and understands that CCS cannot be held liable for any damages suffered, penalties incurred or fines levied by the competent authorities should the Client fail to make the necessary payments timeously.
Where the rendering of the Services requires information from- or the co-operation of officials, employees, representatives and individuals of the Client, the Client undertakes to use its best efforts to ensure that the persons concerned are available when required and that they provide the necessary information and co-operation on a timely basis. Reasonable facilities and access to data and information will be provided by the Client.
The Client agrees and undertakes to attend to timeous payment of all invoices presented to him/her/it by CCS, in accordance with the provisions of clause 4 of these Standard Terms and Conditions, which payments will be made free of deduction, set-off or exchange of any nature.
The Client further, and generally, agrees to maintain a duty of support to CCS in terms of which the Client will be primarily responsible for enabling CCS to render the Services to it/him/her in respect of, inter alia the following aspects:
Providing all necessary financial- and related information to CCS, in a timely manner, in order for CCS to capture and collectively interpret same according to international and national legislation, regulations and guidelines in preparation for submission to- and assessment by the relevant authorities.
Disclosure and provision off all relevant financial- and related information to CCS in order to enable CCS to analyse, plan- and implement proactive strategies in respect of the Client’s unique tax-related circumstances and financial affairs.
As a registered and certified Professional Tax Practitioner (SARS, SAIPA and the SAIT) CCS is ethically bound to ensure that the Client reasonably complies with current legislation, regulations and guidelines, as published and amended from time to time. In enabling CCS to uphold its ethical duties the Client agrees to honour and bound by the terms of this Agreement, and further agrees to provide all necessary information and documentation pertaining to compliance to CCS in a timely manner and when requested to do so by CCS.
Maintaining a relationship of accountability and transparency with CCS in order to facilitate the Client’s compliance with relevant legislation, regulations and guidelines – this will in turn enable CCS to effectively work with the various authorities, including the Financial Services Board, the Company and Intellectual Property Commission, Financial Intelligence Centre, Department of Labour and SARS, inter alia.
Ensuring that the information provided and disclosed to CCS, as required by SARS, include essential transactions that are both lawful and allowable as determined by the relevant legislation, regulations and guidelines.
Making the necessary payments, as set out in clause 5.2.10 above, in a timely manner.
Acknowledging that SARS’ assessment of the Client’s financial affairs and calculation of the Client’s tax contribution is done on face value of the submissions made by CCS and as such the Client agrees to support CCS in this regard by making full disclosure to CCS of the Client’s financial affairs.
Willingly and meaningfully comply with legislative requirements, regulations and guidelines in order to enable CCS to render the Services and support the Client to the fullest extent available in terms of current legislation, regulations and guidelines.
Speedily and comprehensively co-operating with CCS under such circumstances as the Client is audited by SARS – this will prevent SARS from imposing unnecessarily burdensome penalties on the Client.
Providing CCS with the necessary access to the Client’s financial accounting systems, SARS e-filing profiles, etc. where necessary in order to enable CCS to render the Services efficiently to the fullest extent, as set out in the Letter of Engagement and Formalised Quotation.
The Parties agree, in the Client honouring its/his/her duty to support CCS and CCS in upholding their contractual and ethical obligations to the Client, to abide by a system of Requests and reciprocal Performance in respect of information, documents and disclosures required by CCS, which Requests will be made in writing, and entitled as such. Reciprocally, the Client will respond to any and all Requests, in writing, completely and to the best of their ability, within 14 (fourteen) days of receipt of the Request from CCS.
6. CCS Responsibilities
As professional member of the South African Institute of Professional Accountants (SAIPA) and the SA Institute of Tax Professionals (SAIT); CCS is professionally and ethically bound to comply with certain professional standards and legal obligations when providing the Services to the Client.
CCS will be responsible for:
processing submissions to Governmental Departments and other authorities via the SARS E-Filing system on the Client’s behalf, but only when CCS is appointed to do so by the Client in writing, which appointment is confirmed in the Letter of Engagement;
communicating with the Client on a regular basis by means of electronic mail (e-mail) at the chosen address as set out in clause 16 hereunder;
providing accounting- and related support services central to the Services, that comply with South African- and international regulatory frameworks, standards, guidelines, legislation and associated regulations;
preparation of the Annual Financial Statements and/or Management Financial Statements in accordance with International Financial Reporting Standards (IFRS) for Small and Medium-sized Enterprises, which will fairly and accurately represent the Client’s financial position, as well as the results of business activities and cash flow over the requested period;
not making decisions as to which recommendations and/or alternatives, as proposed by CCS in the course and scope of rendering the Services, to accept or to implement;
not performing an audit, nor expressing an audit opinion. As such, the rendering of the Services by CCS, will not, and cannot be construed as compliance with- or satisfaction of any statutory or third-party requirement for an audit;
not providing financial advice, as contemplated in- or in accordance with- the provisions of the Financial Advisory and Intermediary Services Act (No. 37 of 2002). Any financial advice provided by CCS which may be construed as falling within the ambit of the aforementioned Act should be considered as co-incidental and informal only. The Client agrees that CCS does not intend that any such advices given be considered as a formal opinion/advice and acted upon.
7. Business Relationship
Given the nature of the Services rendered to the Client by CCS, the Parties agree that the nature of the Agreement between them is not, and shall not be deemed to be an Agreement of agency, and accordingly, CCS does not act on behalf of the Client as an agent or representative, nor in any capacity representative of management or which could reasonably be construed as such, neither will this Agreement form the basis for any joint venture or partnership between the Client and CCS.
The Client and CCS operate independently. Neither CCS, nor the Client, shall in any manner assume or create an obligation of- or in the name of the other.
CCS will endeavour to deliver the Services with the requisite level of skill, integrity and professional competence at all times.
It is understood that CCS personnel may be absent for short periods of time due to other commitments, for example annual leave, training, etc. In such event, reasonable notice thereof will be given by CCS to the Client and in accordance with clause 16 hereunder. CCS will endeavour to avoid any disruption to the delivery of the Services to the Client as a result of CCS personnel being unavailable, and as such, names of replacement personnel of equivalent ability will also be provided to the Client.
CCS may need to substitute personnel from time to time and, in such an event, reasonable notice thereof will be given to the Client, in accordance with clause 16 hereunder, and replacement personnel of equivalent ability will be provided in order to ensure the continuation of the Services.
8. General principles
CCS reserves the right to sub-contract specifically identified experts to assist, when and where necessary, in the rendering of the Services. Any such sub-contracted parties will be subject to the provisions of the Engagement Letter, Formalised Quotation and these Standard Terms and Conditions, which shall apply mutatis mutandis.
Where it is intended that the Services should also be provided to group companies and/or several divisions of a Client’s corporate structure, any instructions given and/or information made available to CCS will be deemed to also apply to the Services to be provided on CCS’ behalf by any duly appointed sub-contractor and in terms of a separate Engagement Letter which will need to be concluded with the group company or divisions concerned.
The Engagement Letter, Formalised Quotation, Standard Terms and Conditions, Services and any matters relating to the Agreement between the Parties are governed by relevant legislation and/or regulations of the Republic of South Africa and in this regard, do the Parties hereby consent and submit to the exclusive jurisdiction of the Gauteng Division of the High Court of the Republic of South Africa in Pretoria in respect of any dispute arising from or in connection with this Agreement.
9. CONFIDENTIALITY
The Parties acknowledge that by virtue of this Agreement and the nature of the Services rendered, either Party may come into possession of- and have access to- trade secrets, Intellectual Property, work product and confidential information (whether specifically identified as confidential or not) of the other party including, inter alia, but without limiting the generality of a foregoing, the following, all of which are hereinafter referred to as “Confidential Information”:
Trade Marks;
Intellectual Property, including work product, spreadsheets, presentation documents, business models, theories, theorems and algorithms, specialized computer software, programs and codes, suppliers, designs, strategies, concepts, ideas, etc.;
Personal Information regarding former, current or prospective suppliers, employers and clients of either Party, and/or as either Party may have become privy to- or bear knowledge of as a result of the nature of their working environment and the nature of the Services rendered;
Business practises, including costing models, pricing techniques, profit margins, overheads and other accounting information specific to the business of either Party, as compiled, produced or presented by either of the Parties;
Other matters which relate to business, structure and management central to the nature of either Party’s business as compiled, produced or presented by- or on behalf of either Party and which, in the reasonable opinion of the relevant Party, may be prejudicial to its business or professional expertise should such information become public knowledge or readily available to competitors and/or potential competitors of either Party.
The Parties respectively hereby undertake to protect, to the best of it-, and its representatives’ respective abilities and knowledge, the Confidential Information of the other Party, and in so doing agrees not to divulge any such information to any third party, including current or potential shareholders, current or potential clients, current or potential stakeholders of related existing companies or who will be shareholders or stakeholders of companies or joint ventures yet to be registered, except in so far is necessary to- and in accordance with- the objectives/scope of this Agreement, and with relevant Party's prior knowledge and consent. Further, the Parties hereby acknowledge that copies of any such Confidential Information belonging to the other Party are deemed to be and remain the property of that Party and/or their duly appointed employees, agents, consultants and/or contractors, as the case may be.
Any Confidential Information that may have come into the possession of either Party, by whatever means, and at any time preceding the Signature Date of this Agreement or at any time in the future, remains the property of the specific Party to which it pertains or by whom it was authored, as the circumstances dictate.
Undertakings in terms of this Agreement pertaining to Confidential Information shall survive the termination for whatever reason and/or expiration of this Agreement, in perpetuum.
The Client acknowledges and agrees that CCS is required, in terms of professional ethics, standards, regulations, guidelines and legislation, to retain documentation to support the Services rendered to the Client. Where this documentation includes Confidential Information of the Client, CCS will be entitled to retain such documentation and specifically for those purposes aforementioned.
Notwithstanding the above, the Client acknowledges that CCS may be required to disclose Confidential Information to its legal advisors, insurers, the South African Government, or to another organisations or authorities in terms of relevant legislation requiring such disclosure. Disclosure in any of these instances will be permissible and cannot be construed as a breach of this confidentiality clause or any other provision of this Agreement.
Circumstances may arise where CCS has to report regulatory affairs and compliance matters to the relevant authorities, and where permissible, CCS shall bring such circumstances to the Client’s attention before doing so.
10. Non-exclusivity
The Client acknowledges and agrees that CCS provides a variety of other services to a large and diverse range of clients. The provision of the Services to the Client will not prevent CCS from providing the same or similar services to other clients, some of whom could be competitors of the Client or who may be in commercial opposition with the Client.
The Client also acknowledges and agrees that CCS may already have provided the same or similar services to other parties.
Where CCS is aware of the same or similar services being provided by them to other parties, reasonable safeguards will be implemented to protect the interests of the Client and insofar as it is possible for CCS to do so. These safeguards will include, but are not limited to, the use of different personnel and measures to ensure the confidentiality and integrity of the Client’s information.
Whilst CCS will be bound by the provisions of the confidentiality clauses herein, CCS shall have the right to use the name of the Client and a Description of the Services rendered to the Client as a reference in seeking to provide services to other parties, unless the Client expressly requests CCS not to do so.
11. Use of reports and other Work Product
Any advice, report, certificate, schedule, statement, Completed Services or other work product derived and/or compiled from- or pertaining to the Services will be presented for the sole use of the Client to whom it is addressed and on whose behalf it was derived and/or compiled, and may be relied upon only by the Client and used solely for the purpose for which it was prepared. No person other than the Client to whom it is addressed and/or to whom it pertains shall be entitled to place any reliance thereon for any purpose whatsoever.
Any such advice, report, certificate, schedule, statement, Completed Services or other work product is based on the particular facts and circumstances of the Client at a particular point in time and on any applicable prevailing laws, guidelines and regulations in force at the time. Consequently, such advice, report, certificate, schedule, statement, Completed Services or other work product may well not be relevant to another party or at a different time and under different circumstances. CCS does not warrant or guarantee that there will be no change to relevant facts and circumstances in the future or that future events or outcomes will transpire as a result of the advice, report, certificate, schedule, statement, Completed Services or other work product. Any such advice, report, certificate, schedule, statement, Completed Services or other work product should be deemed to be prima facie what it purports to be at the time of presentation thereof to the Client.
Unless otherwise indicated in the advice, report, certificate, schedule, statement, Completed Services or other work product, copies or extracts therefrom may be made available to the Client’s advisors provided that they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule, statement, Completed Services or other work product, and further provided that the advisors are made aware of CCS’s reliance on Client information and CCS’s limitation of liability and are guided by the provisions of the Agreement between the Parties.
Copies, in whole or in part of the advice, report, certificate, schedule, statement, Completed Services or other work product or extracts therefrom, may not be made available to any other party without the prior express written consent of CCS, which consent may be given or withheld at CCS’s absolute discretion.
The Client hereby indemnifies CCS against any claim instituted by any third party, arising from a copy of any advice, report, certificate, schedule, statement, Completed Services or other work product or extract therefrom, which the third party received from the Client and/or its advisors and/or any other third party, through any means whatsoever.
Oral communications and draft reports, certificates and other documents must be regarded as preliminary and intended only for discussion purposes. Final reports, certificates, schedules, statements, Completed Services or other work product should be relied- and acted upon only when signed by a CCS Partner.
12. Reliance on Client information
The Services or any portion thereof to be rendered by CCS, are dependent on information supplied by the Client. CCS shall be entitled to assume that all the data and information provided by Client is accurate, reliable and complete. CCS will not be liable to the Client or to any third party for any damages suffered, penalties implied or fines incurred as a result of the Client providing any information that is incorrect or incomplete or where the Client fails to disclose any relevant information to CCS; and accordingly does the Client indemnify and hold harmless CCS and/or any of its employees, agents, consultants and/or contractors against any claims instituted against the Client.
The Client further agrees to hold harmless and accordingly indemnifies CCS in respect of any claims instituted, damages suffered, penalties implied or fines incurred by the Client or any third party, arising by virtue of the Client’s failure to comply with- or non-compliance in respect of any relevant legislation, regulations or guidelines pertaining to aspects of corporate governance and associated duties of accountability, transparency, keeping- and supplying of records, etc. In this regard, CCS reserves the right to assume and accept that the Client has complied with the necessary legislation, regulations and guidelines in rendering the Services to the Client.
13. Limitation of liability
CCS remains responsible to the Client for all of the Services, as agreed in the Engagement Letter, Formalised Quotation and these Standard Terms and Conditions, including those Services that may be rendered by a party sub-contracted by CCS for that specific purpose. Accordingly, and to the fullest extent possible under applicable law, CCS cannot be held liable to the Client-, and accordingly does the Client agree to indemnify CCS in respect of the Services rendered. The Client further agrees not to institute any action, claim or proceedings in respect of any possible damages allegedly suffered in respect of the Services rendered, and will further ensure that no other member, representative, agent, employee, official or the like, of the Client or Client’s group of companies institute any such action, claim or proceedings, of any nature whatsoever (whether in contract, delict, breach of statutory duty or otherwise, and including, but not limited to, any claim for negligence).
The maximum liability to which CCS, its partners, employees, agents, consultants and/or contractors may be exposed or held liable for, in respect of any and all claims which may arise in respect of the Services, shall be limited to a maximum of twice the fees invoiced in respect of the Services individually. This maximum liability shall be an aggregate liability for all claims howsoever arising, whether by contract, delict, negligence or otherwise.
This clause shall apply separately and cumulatively to those Services relating to each of the invoices issued and presented by CCS throughout the duration of this Agreement.
The Parties expressly agree that CCS, its partners, employees, agents, consultants and/or contractors cannot be liable to the Client or any third party for any consequential, punitive or any other loss or damages allegedly suffered as a result of rendering the Services to the Client.
Any claims or proceedings, howsoever arising, must be so instituted, formally within three years after the Party who allegedly suffered the damages becomes aware (or ought reasonably to have become aware) of the facts which give rise to the action and/or proceedings and, in any event, no later than three years after any alleged breach of contract, negligence, delict or other cause of action.
Force Majeure:
The responsibilities, duties and/or obligations of any Party hereto will be suspended while such Party is prevented or hindered from complying with the terms of this Agreement by force majeure which will include-, but not be limited to strikes; lockouts; labour and civil disturbances; acts of God; acts of Government or other authority; unavoidable accidents; operations of applicable laws; acts of war or conditions arising out of or attributable to war (declared or undeclared); shortage of necessary equipment, materials, or labour; or restrictions on them, or limitations on their use; refusal of- or delay in obtaining any necessary permits, licences or consents; delays in transportation; or any other matters beyond the reasonable control of such Party, whether similar to the matters listed above or otherwise.
Notwithstanding the aforegoing, no Party shall be entitled to the benefit of the provisions of this clause if the event of force majeure is caused by a lack of funds, or by the negligence or wilful default on the part of the Party claiming suspension.
If force majeure causes a suspension of the responsibilities, duties and/or obligations of any Party hereto, such Party must give notice of suspension as soon as reasonably possible, to the other Parties stating the date and extent of such suspension, whether in whole or in part, and the nature of the force majeure. Any Party whose obligations have been suspended, shall resume the performance of such obligations as soon as reasonably possible after the removal of the force majeure and shall notify the other Parties of such resumption.
The Parties shall take all reasonable measures to minimise the consequences of any event of force majeure and shall consult with each other with a view to agreeing in measures to be taken in the circumstances.
CCS shall not be responsible for or accept any liability whatsoever in respect of any advice given or services rendered to the Client by persons who are not partners, principals, members of staff or employees of CCS, regardless of whether or not such persons were introduced to the Client by CCS.
14. Termination and Cancellation of Contract
This Agreement may be terminated forthwith by either Party in the event of either Party becoming subject to liquidation, whether voluntarily or otherwise; or under such circumstances as that Party submits itself to debt rescue, debt review, judicial administration or any similar process in terms of which a third party will be appointed to manage/administer the financial aspects or business activities (or any portion thereof) of that Party.
It is specifically agreed that CCS will be entitled to terminate this Agreement in the event of changes to the relevant legislation or regulations thereto that would render the continuation of the performance of the Services by CCS illegal, unlawful, contra bonos mores or otherwise in conflict with professional rules, guidelines and/or ethics.
Either Party may terminate this Agreement by providing ninety (90) calendar days written notice to the other Party in accordance with the provisions of clause 16 hereunder, and subject to the following:
Prior to acceptance of the termination of the Agreement, the Client and CCS agree to enter into formal discussion in order to afford both Parties opportunity for constructive discussion, challenges and grievances to be ventilated, consideration of explanations, exploration of proposals and negotiations, with a view to maintaining the working relationship and preserving the Agreement. Should, in the opinion of both Parties, these formal discussions prove fruitless, then and under such circumstances the termination of the Agreement will be upheld from the date of notice thereof.
The Parties agree that by virtue of the nature, scope and extent of the Services rendered to the Client by CCS, that summary termination of this Agreement has the possibility to cause undue prejudice to either or both of the Parties.
In order to avoid possible penalties and/or fines imposed by the relevant authorities, and/or possible damages to be suffered by the Client as a result of non-compliance or failure to make necessary submissions caused by summary termination of this Agreement, the Client reserves the right to, and despite having tendered notice of termination of this Agreement to CCS, insist that CCS complete the Services outlined in the Formalised Quotation, irrespective of whether or not such Services (wholly or in part) are to be performed and/or submitted in a time falling outside of the recorded duration of this Agreement.
Under such circumstances as the Client elects to enforce the Agreement in terms of clause 14.3.2 hereinabove:
the Client undertakes to continue to make monthly payment to CCS in terms of this Agreement.
the Client agrees to make monthly payment to CCS in terms of this Agreement for the duration of the notice period (including payment of the invoice presented to the Client in respect of Services rendered in the last month of the notice period, which invoice will be presented in the month following the last month in which Services are rendered to the client); and reciprocally, CCS undertakes to continue to render the Services in accordance with the Agreement during the notice period.
Under such circumstances as the Client elects not to enforce the Agreement:
the Client hereby acknowledges and agrees to hold harmless and indemnify CCS in respect of any and all penalties and/or fines imposed by the relevant authorities in respect of failure to make submissions and/or non-compliance; the Client further indemnifies CCS against any and all claims which may arise- and damages which may be suffered by the Client as a result of termination of this Agreement.
As set out more fully in clauses 4.3 and 4.4 hereinabove, CCS will reimburse the Client that pro rata portion of the fees paid in respect of Services to be rendered on an annual basis, and/or within a prescribed financial period, and which have not yet been rendered and/or performed and/or submitted, calculated from the Commencement Date to the date on which the Agreement is terminated (inclusive of the notice period).
Irrespective of the manner in which this Agreement is terminated, the Parties agree to consult with each other in respect of negotiating a constructive and efficient hand-over process between CCS and the Client’s new Accounting Services provider.
15. BREACH OF CONTRACT
In the event that either of the Parties (guilty Party) breach any responsibility, duty or obligation owed by it to the other Party (innocent Party) in terms of this Agreement, such innocent Party shall be obliged (where they wish to exercise any rights consequent upon such breach) to give notice of such breach to the guilty Party.
Such notice shall be given and delivered in terms of clause 16 of this Agreement.
The notice shall draw attention to the breach and call upon the guilty Party to remedy such breach within 14 (fourteen) calendar days of the giving of such notice, failing which the innocent Party shall be entitled to either compel performance from the guilty Party of its obligations, or to cancel this Agreement, or to claim such other rights as it may have against the guilty Party, whether at common law or in terms of this Agreement.
For the sake of clarity, the Parties agree that with due cognisance of the nature, extent and scope of the Services, a Request as defined in clause 5.6 hereinabove, shall constitute sufficient notice of the guilty Party’s breach of its/his/her duty to support (in the case of the guilty Party being the Client), or reciprocal contractual and ethical obligations (in the case of the guilty Party being CCS), and that failure to perform in terms of such Request shall, by definition, cause the guilty Party to be in mora creditoris and entitled the innocent Party to cancel this Agreement in accordance with the provisions of this clause 15.
Under such circumstances as this Agreement is cancelled by CCS by virtue of the Client having breached the terms of the Agreement, CCS shall immediately on cancellation of the Agreement be absolved from its professional obligations to the Client.
16. NOTICES AND DOMICILIA
The Parties choose as their domicilia citandi et executandi their respective addresses set out in this clause for all purposes arising out of- or in connection with- this Agreement at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.
For the purpose of this Agreement the Parties’ respective addresses shall be captured in the Engagement Letter or at such other address in the Republic of South Africa, not being a post office box or poste restante, of which the Party concerned may notify the others in writing.
Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by telefax or e-mail. Under such circumstances as notice or communication, as contemplated in this clause, is given by way of telephone, electronic messaging service or in person, it is required that such notice or communication be confirmed in writing by either Party, as soon as reasonably possible after having been given by way of telephone, electronic messaging service or in person, which confirmation in writing shall be deemed to be the date, time and place of giving such notice or communication.
Any Party may by notice to the other Parties change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in the Republic of South Africa or its postal address or its telefax number or e-mail address, provided that the change shall become effective on the 10th (tenth) business day from the deemed receipt of the notice by the other Party.
Any notice to a Party -
sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered, shall be deemed to have been received on the 10th (tenth) business day after posting (unless the contrary is proven);
delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
ent by telefax to its telefax number, shall be deemed to have been received on the date of dispatch (unless the contrary is proved); or
sent by e-mail to its e-mail address, shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its domicilium citandi et executandi.
The Parties further agree to service of all further correspondences, notices, documentation, legal processes arising by virtue of this Agreement, by means of e-mail at those respective e-mail addresses as set out in clause 16 above.
17. MISCELLANEOUS
These Standard Terms and Conditions, together with the Engagement Letter and Formalised Quotation contains the full and entire Agreement between the Parties as to its subject matter. The Parties shall not be bound by any other term, provision, condition, stipulation, warranty or representation or the like, of whatsoever nature, whether express or implied, which have been made by either of the Parties or on their behalf and which are not recorded in this Agreement.
No alteration-, variation of-, or addition hereto shall be of any force or effect unless reduced to writing and signed by the Parties or their duly authorised representatives.
No indulgence, relaxation, latitude, leniency or extension of time which any Party ("the grantor”) may grant, allow or show to any other (“the grantee”), shall in any way constitute a waiver by the grantor of any of the grantor’s rights in terms of this Agreement and the grantor shall not thereby be prejudiced nor precluded from exercising any of its rights in the future.
Neither Party shall be entitled to cede their rights or assign their obligations in terms of this Agreement without the prior written consent of the other Party having first been obtained, which consent shall not unreasonable be withheld.
The provisions of this Agreement shall be kept confidential between the Parties unless otherwise agreed by them in writing.
This Agreement may be executed in one or more counterparts, each of which will constitute an original and all of which, when duly signed and when taken together, will constitute a binding Agreement.
The Parties agree with the signing of this document, that they have received a copy and that they have read and understood the contents thereof. The Parties agree that they are bound by this Agreement and the provisions stipulated therein.
On termination of this Agreement, any remedy conferred in terms of this Agreement is not exclusive to any other remedy available in terms of the common law or any other acceptable source of law applicable within the Republic of South Africa. Such remedies may act cumulatively and may be used in addition to any other such remedy, and election of a single or more remedies shall in no way constitute a waiver of any other remedy.
It is hereby agreed that neither of the Parties to this Agreement will hold liable the person responsible for the drafting and preparation hereof for any action or consequence (foreseen or otherwise) that may arise as a result of conclusion of this Agreement.
This Agreement and all consequences which flow therefrom shall, in all respects, be governed-, be subject to- and be construed in accordance with- the applicable laws of the Republic of South Africa, and all disputes arising from this Agreement, and matters ancillary thereto shall be so determined in accordance with the relevant laws of the Republic of South Africa.
Should any one of the provisions of this Agreement be varied by agreement between the Parties; or be found to be- or rendered- contrary to any applicable law, invalid, unenforceable and/or impractical, such provision shall be treated as pro non scripto and shall be severable from the remainder of the Should any one of the provisions of this Agreement be varied by agreement between the Parties; or be found to be- or rendered- contrary to any applicable law, invalid, unenforceable and/or impractical, such provision shall be treated as pro non scripto and shall be severable from the remainder of the Agreement, and will not affect the validity or enforceability of the remaining provisions in any way – which shall remain of full force and effect, unless otherwise agreed in writing by the Parties.