Standard Terms and Conditions for Confiance services

1.2.1. “client” means the entity/entities, or the persons, to whom services are to or have been rendered by Confiance whether or not a written agreement or engagement letter have been signed;

1.2.2. “Confiance” means Confiance Accountants, Tax and Legal Consultants (Pty) Ltd, a private company (Registration No. 2007/023707/07) duly incorporated as such in the Republic of South Africa; any division of Confiance Accountants, Tax and Legal Consultants (Pty) Ltd, any entity owned or managed by Confiance Accountants, Tax and Legal Consultants (Pty) Ltd, the partners, directors, employees, agents and contractors of Confiance Accountants, Tax and Legal Consultants (Pty) Ltd. The contracting element of Confiance Accountants, Tax and Legal Consultants (Pty) Ltd will usually be identified by our letterhead or set out in the written agreement;

1.2.3. “effective date” means the date the client accepted Confiance’s quotation for services, if applicable, alternatively the date of the request by the client for the services;

1.2.4. “parties” means Confiance or the client and “Party” means any one of them, as the context may indicate;

1.2.5. “services” means the non-audit services to be rendered by Confiance as set out in the written agreement;

1.2.6. “written agreement” means the letter of engagement, or contract, or proposal, or electronic mail, or other documents between the client and Confiance setting out the services to be provided by Confiance to the client and the related terms and conditions.

3.1.1. Unless otherwise agreed in writing, not act in the capacity of management for the client;

3.1.2. Unless otherwise agreed in writing, not act as a formal advocate of or representative for the client;

3.1.3. Unless required out of necessity, not decide on what recommendations/alternatives to accept or implement for the client; and

3.1.4. maintain the accounting records and preparation of the annual financial statements for the client.

3.2.1. making all management decisions and performing all management functions including deciding on what recommendations/alternatives to accept and implement;

3.2.2. designating a competent management member to oversee the services;

3.2.3. evaluating the adequacy and results of the services;

3.2.4. establishing and maintaining internal controls and for determining the adequacy of accounting systems;

3.2.5. monitoring ongoing activities;

3.2.6. providing accurate and material information timeously to Confiance;

3.2.7. safeguarding the assets of the company/client; and

3.2.8. getting all information to Confiance timeously.

3.3. The services, written agreement and any related matters are governed by South African law and any claims will be subject to the exclusive jurisdiction of the courts in South Africa.

3.4. The written agreement and these standard terms and conditions, together with any documents specified in the written agreement, constitute the entire agreement between Confiance and the client and supplants any prior oral or written representations, if any. They may be varied only by the written agreement of both Confiance and the client.

3.5. Where services are subcontracted and this has been acknowledged by the client, this written agreement and any related approvals for the provision of non-audit services will also apply to such subcontracted services.

3.6 Where it is intended that the services should also be provided to group companies and divisions of the client, any approvals given will be deemed to also apply to services to be provided by a member firm which is part of Confiance in terms of a separate engagement letter of agreement that may be concluded with the group company or division concerned.

3.7. Confiance and the client are independent contractors. Neither party shall act or represent itself as an agent of the other and shall not in any manner assume or create an obligation of, or in the name of, the other.

5.1. Confiance will endeavour to deliver the services with the requisite level of skill, integrity and professional competence at all times.

5.2. Confiance may subcontract any services under this written agreement to any member firm which is part of Confiance or, with the consent of the client, to any other party. The client’s relationship is solely with Confiance as the entity contracting to provide the services.

5.3. Where the delivery of the services requires information from, or the co-operation of, officials and employees of the client, the client undertakes to use its best efforts to ensure that its directors, management, officials and employees are available when required and that they provide the necessary information and co-operation on a timely basis. Further, reasonable facilities and access to data and information must be provided by the client. The client is hereby made aware that the timely provision of information and co-operation is a material requirement of the agreement with the client and Confiance and that breach of this provision will result in grounds for the termination of the written agreement by Confiance.

6.1. Confiance shall retain all intellectual property rights in all materials and working papers, including methodologies, know-how, trade secrets, software and tools used, provided by or developed by Confiance and to which the client has access irrespective of whether this intellectual property is in relation to the services delivered or not.

6.2. Except for cases where a licence is expressly granted by Confiance, the client shall acquire no rights or interest in such property.

6.3. Any intellectual property and proprietary rights in material provided by the client for performing the services shall remain the property of the client.

7.1. The client acknowledges that Confiance 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 Confiance from providing the same or similar services to other parties, some of whom could be competitors of the client or who may be in conflict with the client.

7.2. The client also acknowledges that Confiance may already have provided the same or similar services to other parties.

8.1. Confiance will keep confidential all information obtained from the client except such information as is in the public domain, or where the client agrees to Confiance making this information available to other parties.

8.2. Notwithstanding the above clauses, the client acknowledges that Confiance may be required to disclose confidential or personal information to its legal advisers, insurers, regulatory bodies, or to another party under any law requiring such disclosure. Disclosure in any of these instances will be permissible, will not be a breach of confidentiality and the client hereby consents to such disclosure.

8.3. The client agrees to keep confidential any methodologies, technology, know-how, trade secrets, software and tools used, provided or developed by Confiance in providing or delivering the services. Similarly, any information provided or developed by Confiance will be kept confidential, unless Confiance expressly agrees in writing to the client making this available to other parties. This confidentiality requirement will not apply to any information that the client is required by law to disclose to another party.

8.4. Where the written agreement is a proposal for work to be performed and the client does not accept the proposal, any documentation or property specifically identified by Confiance will be returned to Confiance on request and may not be used by the client.

8.5. The client acknowledges that Confiance is required, in terms of professional standards, to retain documentation to support the work done and any deliverables provided. Where this documentation includes confidential or personal information of the client, Confiance will be entitled to retain such documentation.

9.1. The client consents to the processing of personal or confidential information by Confianceof the client and/or the client's related entities in order to consider the client's requests, advise the client and/or render the services to the client as agreed in this written agreement. The client acknowledges that this means that Confiance will be required to retain personal information for periods prescribed by law even where this written agreement has terminated.

9.2. The client further agrees and hereby consents that Confiance may provide any personal information to a third party for the purpose of rendering the services to the client or if Confiance is required to do so by law. The client acknowledges that this means that Confiance may be required to disclose personal information to third parties, such as SARS or financial institutions, for the sole purpose of performing the services to the client. The client hereby agrees that Confiance may disclose personal information where such disclosure is necessary for or in rendering the services to the client and indemnifies Confiance against any harm, loss or risk that may be suffered due to such disclosure.

9.3. Where the client provides Confiance with personal information of or relating to other parties, the client guarantees its consent and indemnifies Confiance from any claim, harm, damage or loss suffered as a result of Confiance having, processing or providing this personal information of or relating to other parties to a third party in rendering the services to the client.

9.4. Confiance will not be liable for any claim instituted in terms of the Protection of Personal Information Act No. 4 of 2013 (“POPI”) and the client hereby fully indemnifies Confiance against any such claim, harm, damage or loss suffered as a result of Confiance having, processing, providing any personal information to third parties, any data leakage, hack or any other circumstance.

10.1. The basis of charging professional fees is set out in the written agreement or other agreement concluded by Confiance and the client.

10.2. Disbursements and out-of-pocket expenses incurred in providing the services will be charged at cost or our predetermined rates. These include all reasonable expenditure necessary for the successful completion of the services including but not limited to database searches, travelling, subsistence, goods and services purchased on the client’s behalf, communications, stationery, report and presentation material, secretarial time and computer charges.

10.3. Invoices for fees and expenses/disbursements will be presented during or on completion of the services. The invoices are payable on issue and on any further terms as determined in the written agreement and depends on whether the client has entered into a fixed billing agreement with Confiance or not.

10.4. The client acknowledges that Confiance may suspend provision of the services until all amounts due are paid in full and Confiance will not be liable or responsible for any fines, penalties and/or losses incurred by the client as a result of the suspension of our services. Please note that Confiance’s right to suspend the provision of services due to non-payment by the client does not exclude, limit or prohibit Confiance’s right to terminate the agreement with the client for non- payment or late payment of amounts due to Confiance by the client.

11.1. Any advice, report, certificate, schedule or other deliverable arising from or in connection with the services will be for the sole use of the party or parties to whom it is addressed and may be relied upon only by that party or parties and used solely for the purpose/s for which it was prepared. No person other than the party or parties to whom it is addressed shall be entitled to place any reliance thereon for any purpose whatsoever.

11.2. Any such advice, report, certificate, schedule or other deliverable is based on the particular facts and circumstances of the client at a particular point in time and on any applicable prevailing rules and regulations in force. Consequently, such advice, report, certificate, schedule or other deliverable may well not be relevant to another party or at a different time and under different circumstances. Confiance 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.

11.3. Unless otherwise indicated in the advice, report, certificate, schedule or other deliverable, copies or extracts therefrom may be made available to the addressee’s advisors provided that they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule or other deliverable and provided that the advisors are made aware of paragraphs 12 and 13.

11.4. Copies, in whole or in part of the advice, report, certificate, schedule or other deliverable or extracts therefrom may not be made available to any other party without the prior express written consent of Confiance, which consent may be given or withheld at our absolute discretion.

11.5. The client indemnifies Confiance against any claim by any third party arising from a copy of any report, certificate, schedule or other deliverable or extract therefrom which the third party received from the client or its advisors.

11.6. Only the final signed report, certificate, schedule or other deliverable should be relied and acted upon. Oral communications and draft reports/certificates/other documents must be regarded as preliminary and intended only for discussion purposes.

12.1. The services or any portion thereof, is dependent on information supplied by the client. Confiance shall be entitled to assume that all the data and information provided by client is accurate, reliable and complete. Confiance will not be liable to the client or to any third party for any damages suffered 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 Confiance; and the client indemnifies Confiance against any claims or expenses relating thereto.

12.2. Where Confiance records information from a meeting in the form of written feedback notes and sends the feedback notes to the client via email, the information set out in said feedback notes are deemed to be valid unless the addressee responds in writing setting out any errors set out therein within a reasonable time from date of the emailed feedback notes.

13.1.1. Confiance remains responsible to the client for the services under this written agreement including services that may be performed by a party subcontracted by Confiance unless the client resigns from our services, the written agreement is terminated or suspension is applicable.

13.1.2. Where services are rendered otherwise than in terms of a written agreement, this clause shall apply separately to services relating to each invoice issued.

13.1.3. Confiance, its partners, employees and agents will not be liable to the client or any third party for any consequential, punitive or any other loss or damages beyond the maximum liability of R250 000.00 (two hundred and fifty thousand rand).

13.1.4. Any claims, howsoever arising, must be commenced formally within three years after the party bringing the claim becomes aware (or ought reasonably to have become aware) of the facts which give rise to the action and, in any event, no later than three years after any alleged breach of contract, negligence, delict or other cause of action.

13.1.5. Confiance will not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including without limitation, any “acts of God”, fire or other casualty or labour dispute, war or other violence or cause through any law, order or requirement of any governmental agency or authority.

13.2.1. The client, in addition to the limitations indicated above, indemnifies Confiance against all liabilities, losses, damages, claims, demands and reasonable expenses including, but not limited to attorney’s fees and expenses, in any action brought against Confiance by any other party except the client in connection with or arising out of such services. This indemnification shall not apply in respect of willful misconduct or gross negligence on the part of Confiance;

13.2.2. Confiance shall have no responsibility or liability whatsoever in respect of any advice given or work undertaken for the client by persons who are not partners, directors, principals, members of staff or employees of Confiance, regardless of whether or not such persons were introduced to the client by Confiance.

13.3. From time to time, SARS amends its policies and processes relating to, inter alia, the submission and lodgment of documentation and/or the requirements to be met before SARS will process a request. While we will attempt to limit the need for the client to interact directly with SARS and/or appear in person at a SARS branch, there will be times and/or circumstances where/when we will not be able to appear or act on behalf of the client and Confiance cannot be held liable for any inconvenience caused in this regard.

13.4.1. advise the client or its representatives on a tax structure;

13.4.2. recommend approaches and interpretations of legislation or circumstances to the client or its representatives;

13.4.3. assist the client or its representatives with arguments to revenue queries with SARS; or

13.4.4. advise the client in any way,

the client remains the person ultimately responsible for the decisions made and steps taken by Confiance on behalf of the client.

14.1. The written agreement may be terminated forthwith by the client or Confiance in the event of either party going into liquidation or having a judicial manager appointed over all or part of its activities.

14.2. Without limiting any other rights to termination that either the client or Confiance may have, the written agreement may also be terminated by Confiance in the event of any of the following situations:

14.2.1. lack of co-operation by the client in the provision of information required by Confiance in order to render the services requested;

14.2.2. an irretrievable breakdown of the relationship or trust between Confiance and the client;

14.2.3. unethical, fraudulent and/or negligent behaviour/conduct by the client; and

14.2.4. financial losses suffered by the client that is resulting in or will result in re-occurring late payments for amounts due and payable to Confiance.

14.3. In the event of either the client or Confiance being in breach of any of the terms of the written agreement or these terms and conditions, the other party may, by written notice require the party which is in breach to remedy such breach. If this has not been remedied within 14 (fourteen) days of receipt of such written notice to remedy such breach, or if the breach is incapable of being remedied, the other party may in writing terminate the written agreement without prejudice to its right to claim damages.

14.4. Confiance will be able to immediately terminate the written agreement in the event of changes to laws, regulations, or the shareholding/group structure that would render such services illegal or in conflict with independence or professional rules.

15.1. If any of the parties commits a breach of this Agreement and/or fails to comply with any of the provisions hereof (“the Defaulting Party”), then the other Party (“the Innocent Party”) shall be entitled to give the Defaulting Party 14 (fourteen) days’ notice in writing to remedy such breach and/or failure and if the Defaulting Party fails to comply with such notice, then the Innocent Party shall forthwith be entitled but not obliged, without prejudice to any other rights or remedies which the Innocent Party may have in law, including the right to claim damages:

15.1.1. to cancel this Agreement; or

15.1.2. to claim immediate performance and/or payment of such obligations.

15.2. All legal costs as between attorney and own client, charges and disbursement and fees, incurred by the Innocent Party in successfully enforcing or defending any provision of this Agreement, or any claim there under, shall be for the account of the Defaulting Party, and shall be payable on demand.

15.3. the Defaulting Party’s remedies in terms of this clause 15 are without prejudice to any other remedies that such Party may be entitled to in law.

16.1. In the absence of any specific provision to the contrary, should any dispute, disagreement or claim arise between the parties (“the dispute”) concerning this Agreement, the parties shall endeavour to resolve the dispute by negotiation.

16.2. This entails one of the Party inviting the others in writing to meet and to attempt to resolve the dispute within 14 (fourteen) days from date of written invitation.

16.3. If the dispute has not been resolved by such negotiation within 14 (fourteen) days of the commencement thereof by agreement between the Parties, then Confiance may decide whether to submit the dispute to arbitration for final resolution in accordance by an arbitrator.

16.4. The arbitrator shall be, if the matter in dispute is principally:

16.4.1. a legal matter, a practising advocate or attorney of South Africa of at least 10 (ten) years’ standing;

16.4.2. an accounting matter, a practising chartered accountant of South Africa of at least 10 (ten) years’ standing;

16.4.3 any other matter, any independent and suitably qualified person,

agreed upon between the parties. If the parties are not able to agree upon the arbitrator within 7 (seven) days of the dispute being submitted to arbitration, the arbitrator.

16.5. The decision of the arbitrator shall be final and binding on the parties and may be made an order of court at the instance of any of the parties.

16.6. Unless otherwise agreed in writing by the parties, any such negotiation or arbitration shall be held in Cape Town.

16.7. Notwithstanding anything to the contrary contained in this clause 16, any Party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent court having jurisdiction

17.1. The client and Confiance each choose the address and email address set out opposite its name in the address clause of the written agreement as its legal address.

17.2. Any notice to be given in terms of the written agreement or these standard terms and conditions must be in writing and delivered to the legal address of the party concerned either via post or via email.

17.3. Written notice given in a correctly addressed envelope, delivered by hand to a responsible person during ordinary business hours shall be deemed to have been received on the day of delivery. An email shall be regarded as delivered as soon as it is in the sender’s sent items, unless the contrary is proven.

17.4. As Confiance often corresponds with the clients via email, the client is responsible for ensuring that the client or a party representing the client accesses his/her emails on a regular basis and responds thereto within a reasonable time period. Further, should Confiance receive a read receipt from the client for an email sent to the client, the email is regarded as having been received and read by the client on the receipt of the read receipt by Confiance.

18.1. If any provision or clause of the written agreement or of the standard terms and conditions becomes invalid or unenforceable, such provision or clause shall be divisible and be regarded as pro non-scripto and the remainder of the written agreement and the standard terms and conditions shall remain in force and be binding.

18.2. A waiver or variation of any individual requirements with the written agreement or of the standard terms shall not result in a variation of any other terms or in the cancellation of the entire written agreement or of the standard terms. Waivers or variations will only be of effect if reduced to writing.

19.1. This Agreement may be executed in several counterparts, each of which shall together constitute one and the same instrument.

19.2. No part of this Agreement shall constitute a stipulatio alteri in favour of any person who is not a Party to the Agreement unless the provision in question expressly provides that it does constitute a stipulatio alteri.

19.3. No relaxation, indulgence or extension of time granted by any Party (“the Grantor”) to another Party shall be construed as a waiver of any of the Grantor's rights in terms hereof, or a novation of any of the terms of this Agreement or estop the Grantor from enforcing strict and punctual compliance with the terms of this Agreement.

19.4. No variation of, addition to, consensual cancellation of or waiver of any right arising in terms of this Agreement (including this clause 19.4) shall be of any force or effect unless it is reduced to writing and signed by a duly authorised representative of the parties.

19.5. This Agreement constitutes the entire agreement between the parties in relation to the subject matter hereof and no Party shall accordingly be bound by any undertaking, representation or warranty not recorded herein.

19.6. This Agreement cancels and supersedes all prior negotiations and agreements entered into between the parties relating to the matters set forth herein.

20.1. The persons signing this Agreement in a representative capacity warrant their authority to do so.

20.2. The parties record that it is not required for this Agreement to be valid, binding and enforceable that a Party has to initial every page of this Agreement and/or have its signature verified by a witness.

20.3. The parties agree to electronic signature of this Agreement as provided for in terms of the Electronic Communications and Transactions Act, No. 25 of 2002 and warrant that such electronic signature shall be valid and binding.