Standard Terms and Conditions
These standard terms and conditions apply to all services rendered by TFS Holdings PTY Ltd, any of its subsidiaries, affiliates or simi9lar entity or person (“collectively TFS”) to a client pursuant to a letter that records the engagement (“the engagement letter”) to which these standard terms and conditions are attached and form part.
The meanings of the following words and phrases, which are widely used in these standard terms and conditions, will be as set out below.
Colleagues/a colleague or TFS person:
Collectively or individually, TFS directors, employees, agents, servants and the like.
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 rendered by TFS to a client in accordance with terms of 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.
- TFS 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.
- The engagement will be governed and interpreted in accordance with the laws of the Republic of South Africa.
- 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. TFS may, where necessary, substitute those named for others of equal or similar skills.
Our services and responsibilities
- TFS may acquire sensitive information concerning your business or affairs in the course of delivering the services, which constitute personal, trade, business or industrial information not generally known (‘confidential information’). In relation to such 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 No 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.
- TFS may from time-to-time supply oral, draft or interim advice or reports or presentations. In such circumstances, it is specifically understood that any final written advice or our final written report shall take precedence over any other advice provided by TFS. 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. Any reliance by you on such interim advice and/or documentation shall not create any liability on the part of TFS should it transpire that such interim advice is incorrect.
- TFS 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.
- 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 or in part, save for your own internal purposed, 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
- TFS accepts no responsibility or liability whatsoever and neither do we owe any duty of care to them in connection with the services.
- Any advice, opinion, statement of expectation, forecast or recommendation supplied by TFS as part of the services shall not amount to any form of guarantee that we have determined or predicted future events or circumstances.
- It may become necessary during the existence of the service contact, to alter the scope of the services to include additional matters you may deem necessary and/or appropriate. Any such alteration shall be agreed on between TFS and yourself. It is specifically agreed that any alteration may 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.
- We shall retain copyright and all other intellectual property rights in the product of the services, whether oral, corporeal or incorporeal 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.
- TFS shall have the right to use your name as a reference in proposals or other similar submissions to other prospective clients, unless you specifically prohibit such disclosure. If TFS wishes to use details of the work done for you for reference purposes, permission shall be obtained in advance.
- TFS 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 are set out in the engagement letter.
- Fees are based on the following factors:
- the time spent on your affairs by TFS persons or agents;
- the skill and expertise of the TFS person tasked with rendering the services to you; and
- disbursements made by TFS in the course of rendering the services to you.
- All fees will be invoiced as work progresses,
- Individual hourly rates vary according to the degree of responsibility involved and the experience and skill required.
- It is specifically agreed that the actual fees invoiced may differ from estimates that may have been supplied, which estimates will be provisional only.
- Stringent reporting requirements and/or deadlines imposed by you might require work to be carried out a higher level than in the ordinary course 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 not reasonably have been foreseen. Invoices are payable on presentation.
- 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.
- Disbursement in respect of travelling expenses, photocopies, stationery, revenue stamps, postage and telephone calls will be recovered at our predetermined rates. These rates are subject to change without notice and can be viewed at __________________________ [insert website]
- In return for the rendering of the services by TFS, 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 invoice. Failure to do so will constitute your acknowledgement that our invoice is prima facie correct and due and payable.
- All payments to TFS for services rendered shall be made against TFS invoices which shall be presented during or after the period of the provision of the services in respect of services provided.
- If you choose to appoint another adviser in the place and stead of TFS, or otherwise terminate our services, TFS will be entitled to raise an invoice upon receipt of such notification for all work done up to and including the date of such notification and not yet billed, at the standard charge-out rates, including disbursements incurred.
- It is specifically noted that TFS shall have the right to exercise a lien over all books and records in our possession provided to us during the course of this agreement in unless and until all invoices rendered to you have been paid in full. Upon receipt of such invoice you undertake to settle our account in full prior to TFS handing over books and records to you or to your appointee.
- TFS 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 invoice. It is agreed that TFS 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 No 34 of 2005, as amended. 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.
- 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.
- To enable TFS to perform the services, you shall use your best endeavours to procure and promptly to supply all information and assistance, 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 endeavours to procure the supply of the information and assistance and/or access to all the documentation.
- You shall inform TFS 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 TFS shall provide.
- TFS 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’).
- TFS 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 an authorized person.
- TFS may choose to communicate with you by way of 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 TFS 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 TFS nor any TFS person 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.
- 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, a hard copy of such communication may be requested from TFS. If you wish for TFS to password-protect all or certain documents transmitted electronically, such request shall be made in writing by you and TFS will make appropriate arrangements.
- TFS may receive information form you or from other sources in the course of delivering the services and TFS shall:
- consider the consistency and quality of information received by us;
- not seek to establish the reliability of information received from you or any other information source. Accordingly TFS assumes no responsibility and make no representation with respect to the accuracy, reliability or completeness of any information provided to us; and
- 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.
- 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 No 38 of 2001, as amended and the Prevention of Organized Crime Act No 121 of 1998, as amended.
Knowledge and conflicts
- Any individual member of 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 TFS.
- TFS personnel 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’). TFS seeks and shall continue to seek to identify adversarial conflicts. If you know or become aware of any which may arise, you shall inform TFS promptly in writing of such conflict.
- TFS shall endeavour to have mechanisms operating between TFS 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.
- TFS 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. TFS may accept such an engagement only when the adversarial conflict is disclosed to all the parties involved and their consent is obtained.
- TFS 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’). TFS seeks and shall continue to seek to identify competing parties. If you know or become aware that a TFS person is advising or proposing to advise a competing party, you shall inform us in writing as soon as reasonably possible after becoming aware of same. In such situations TFS shall take appropriate measures to ensure that strict confidentiality is maintained in all respects where such confidentiality is warranted.
- Where a party being advised by TFS, has been identified by us or notified by you as a competing party, TFS shall activate appropriate barriers and when operating shall be entitled to advise the competing party concerned at any time and in any capacity (save in relation to an adversarial conflict). TFS will supply you with the relevant details 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.
- Where a party has engaged our services, and during the delivery of our services TFS are of the opinion, even with the barriers introduced, that your interests or the other party’s interests are likely to be prejudiced, may, after consultation with you, choose to terminate the services contract and shall be entitled to terminate the services with immediate effect on written notice to you. In this event TFS shall not be responsible for any costs that you may incur in securing other professional services.
The service contract
- The services contract sets out the entire agreement and understanding between us in connection with the services.
No variation of the terms and conditions of the engagement letter or these standard terms of business 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
- 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
- Neither party shall be in breach of any contractual obligations nor shall either party incur any liability to the other if any party is unable to comply with the services contract as a result of any cause beyond their reasonable control. In the event of any such occurrence affecting either party, that such party shall be obliged as soon as reasonably practicable to notify the other party, 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
- Failure by either party to exercise or enforce any rights available to them shall not amount to a waiver of any rights available to such party.
- Neither party shall have the right to cede or assign the benefit or burden of the services contract without the written consent of the other party.
- TFS shall have the right to appoint sub-contractors to assist in delivering the services.
Exclusions and limitations of our liability
- The maximum liability of TFS or any TFS 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 of TFS shall be an aggregate liability for all claims arising from whatever source and however arising, whether under the law of contract.
- In the particular circumstances of the services set out in the Engagement Letter, the liability to you and to other beneficiaries of TFS and/or each and all TFS 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.
- TFS 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.
- In further consideration of our agreement to provide these services, you agree to indemnify TFS and all TFS person and hold it and/or them harmless against all and any claims made against it and/or them by any party whatsoever in respect of any loss, damages, costs or expenses referred to above and against the actual costs incurred by TFS or any TFS person in defending such claims.
- In determining the liability of TFS or any TFS person for purposes of this paragraph, a court or an arbitrator shall limit the liability of TFS or TFS person to that proportion of the loss or damage suffered by you which is ascribed to TFS or TFS person 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 as amended 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 such Act.
- Any 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 53 above and the amount determined by the apportionment of responsibility as the case may be.
- You and other beneficiaries shall not bring any claim personally against any TFS 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 TFS as a company for the acts or omissions of any TFS person.
- 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 any court or other dispute resolution proceedings are commenced.
- You shall indemnify TFS and any TFS 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
- Either party 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 party before termination or suspension and all sums due to TFS shall become payable in full upon such termination or suspension.
- TFS will be entitled to raise an invoice upon receipt of such notification for an amount adequate to cover all work done up to and including the date of such notification and not yet billed including disbursements incurred.
- On termination, and provided TFS’s fees have been settled in full, TFS shall return any property belonging to you that it has in its possession. TFS may retain one copy of any documentation upon which the services are based to enable us to maintain a professional record of our involvement.
- On termination you shall immediately return all property belonging to TFS that you have in your possession.
- 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, 22, to 25 both inclusive, 27, 32, 35, 36, 38, 40, 41, 44 to 64 both inclusive, 66 and 68.
- 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 shall be capable of being severed from the remaining provisions and the remaining provisions shall continue in full force and effect
- 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.
- 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 agreement between you and TFS 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.
- TFS staff undergoes periodic training and this, together with the taking of annual leave, may lead to staff turnover and lack of continuity. TFS will use our best endeavours to avoid any disruption to an engagement’s progress.
- 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.