TERMS AND CONDITIONS
These standard terms and conditions apply to services rendered by the Service Provider to both clients pursuant to a letter that records the engagement (“the Agreement”) either by way of online order or paper form enclosing these standard terms and conditions or incorporating them by reference and clients pursuant to a one-off or recurring service.
Definitions and meaning
The meanings of the following words and phrases, which are widely used in these standard terms and conditions, will be as set out below.
Collectively or individually, The Service Provider persons and employees who are not members of the engagement team.
Collectively or individually, Service Provider persons and employees who are involved in delivering the services.
The Service Provider persons:
These will be FA Cronjé and Cronjé Inc., each and all of our partners, directors, employees and agents, as the case may be, together with any other body or entity controlled by us or owned by us or associated with us and each and all of its partners, directors, employees and agents, and a FA Cronjé and Cronjé Inc. person’ shall mean any one of them.
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 Agreement as a recipient or beneficiary of the services or any product thereof and any and each person or organization which we and you agree may be so treated.
The services to be delivered by us under the Agreement.
The standard terms and conditions and the Agreement (engagement letter), together with any documents or other terms applicable to the services (“additional terms”) specified in an Agreement, as well as any documents or other terms applicable to the services to which specific contractual reference is made in the Agreement including, quotations, invoices, service schedules or any other related document.
You (and derivatives):
The client and vice versa.
SCOPE OF WORK / OUR SERVICES
- The scope of work to be performed is based on the letter of engagement, service schedule quotation or invoice which you have accepted and agreed to. The terms of such work or services, which ever may be applicable, are set out in this document.
- We will seek to ensure that our service is 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 Agreement.
- The engagement will be governed and interpreted in accordance with the laws of South Africa. Dispute resolution proceedings, including any litigation will take place in South Africa.
- Where individuals are to be involved in delivering the services, which individuals are named in the Agreement, we will use reasonable endeavours to ensure that they are so involved. We may substitute those named for others of equal or similar skills.
- The Agreement sets out the entire agreement and understanding between us in connection with the services. Any modifications or variations to the Agreement must be in writing and signed by an authorised representative of each of us. No variation of the terms and conditions of the engagement will be of any force or effect unless reduced to writing and signed by all of the signatories thereto. In the event of any inconsistency between the Agreement and any other elements of the Agreement, the Agreement 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. We shall not be responsible for any failure to advise or comment on any matter that falls outside the specific scope of your instructions.
- The Services are subject to all applicable laws, regulations, rules, requirements, practices and guidelines in any relevant jurisdiction and nothing in these terms and conditions or in any Agreement will require the Service Provider or any other person to act in any manner which the Service Provider reasonably considers may:
- conflict with any laws or regulations in force applicable to the Service Provider or any other person in any jurisdiction;
- conflict with any laws or regulations in force applicable to the Client in any jurisdiction;
- cause the Service Provider or any other person to be in breach of the terms of any consents, licences or permits or any applicable codes of practice issued by any regulator or other competent authority in any jurisdiction and binding on or having effect in relation to that person; and/or
- expose the Service Provider or any other person to any risk, in any jurisdiction, of any civil or criminal liability or penalty (including regulatory liabilities or penalties) or any civil or criminal proceedings (including regulatory proceedings).
- The Service Provider is authorised by the Client to do anything which is reasonably necessary either to perform the Services or to comply with any applicable laws and/or regulations in any relevant jurisdictions.
- These Terms and Conditions are intended to govern the business relations between the Service Provider and its clients. On the basis of these Terms and conditions, The Service Provider shall provide the Client with various services, including but not limited to, the incorporation of companies, the assistance in relation with the opening of accounts with banks or a non-banking financial services providers, accounting, taxation, consulting, advisory and related services.
- The Service Provider reserves the right to change the Terms and Conditions at any time with immediate effect. The Client shall be notified of such amendments by notice in writing. Amendments shall be deemed to be approved by the Client unless the Service Provider receives a written objection thereto within four weeks from the date of the notice.
- The Service Provider reserves the right to refuse any and/or all its services to any Client without giving any reason or explanation thereto, and cannot, under any circumstances, be held responsible for such refusal.
- Whilst the Service Provider endeavours to provide true and correct information on all its services, it is not providing legal advice. The Client is responsible for ensuring that he/she has taken all necessary legal advice in general or in particular with regard to the establishment and operation of the Company and for ensuring that the activities will not breach the law of any relevant jurisdiction.
- We have the right to use your name as a reference in proposals or other similar submissions to other prospective clients, unless you specifically withhold permission for such disclosure. If we wish to use details of the work done for you for references purposes, we will obtain your permission in advance.
OUR RESPONSIBILITY TO YOU
- In conducting this engagement, information acquired by us in the course of completing this job is subject to strict confidentiality requirements. That information will not be disclosed by us to other parties except as required or allowed for by law, or with your express consent.
- We may acquire sensitive information concerning your business or affairs in the course of delivering the services (“confidential information”). In relation to confidential information we will comply with the confidentiality requirements of the Independent Regulatory Board for Auditors (if applicable), the South African Institute of Chartered Accountants, the Auditing Profession Act, No.26 of 2005 (if applicable) as well as the provisions of the Protection of Personal Information Act (Popi). This clause 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, e.g. disclosure to the South African Revenue Service.
- Prior to completion of the services we may supply oral, draft or interim advice or reports or presentations, but in such circumstances our written advice or our final written report shall take precedence. No reliance should 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 made on completion of the services, you must inform us and we will supply documentary confirmation of the advice concerned.
- We will not be under any obligation in any circumstances to update any advice, report or any product of the services, oral or written, for events occurring after the advice, report or product concerned has been issued in final form, unless otherwise specifically agreed upon by mutual consent by you and us.
- Any product of the services released to you in any form or medium will be supplied by us on the basis that it is for your benefit and information only and that it may not be copied, referred to or disclosed, in whole or in part (save for your own internal purposes), without our prior written consent. The services will be delivered on the basis that you may not quote our name or reproduce our logo in any form or medium without our prior written consent. You may disclose in whole any product of the services to your bankers and legal and other professional advisers for the purposes of your seeking advice in relation to the services, provided that when doing so you inform them that:
- disclosure by them (save for their own internal purposes) is not permitted without our prior written consent; and
- we accept no responsibility or liability whatsoever and neither do we owe any duty of care to them in connection with the services.
- Any advice, opinion, statement of expectation, forecast or recommendation supplied by us as part of the services will not amount to any form of guarantee or warranty that we have determined or predicted future events or circumstances.
- It may become necessary, as the Agreement proceeds, to change the scope of the services to include matters that you or we may deem appropriate. The parties will discuss and agree to such changes, which may include the payment of any additional fees and the extension of the period to provide any additional services. Significant variations in the scope of the services will be the subject of a supplementary Agreement and all other changes will be deduced to writing and signed by both parties.
YOUR RESPONSIBILITY TO US
- The advice that we give can only be as good as the information on which it is based. In so far as that information is provided by you, or by third parties with your permission, your responsibility arises as soon as possible if any circumstances or facts alter, as any alteration may have a significant impact on the advice given. If the circumstances change therefore or your needs alter, advise us of the alteration as soon as possible in writing.
- To enable us to perform the services, you will use your best endeavours to procure and to supply promptly all information and assistance, and all access to documentation in your possession, custody, or under your control, and to personnel under your control, where required by us. Where such information and/or documentation is not in your possession or custody, or under your control, you will use your best endeavours to procure the supply of the information, assistance and/or access to all the documentation.
- You will inform us of any information or developments that may come to your attention during the continuance of the Agreement, which might have a bearing on or be relevant to the services we have agreed to provide.
- We may rely on any instructions or requests made or notices given or information supplied, whether orally or in writing, by any person whom we know to be or reasonably believe to be authorised by you to communicate with us for such purposes (“an authorised person”).
- You will retain responsibility and accountability for:
- the management, conduct and operation of your business and affairs;
- any representations made by the entity to third parties, including published information;
- the maintenance of the accounting records and the safeguarding of the assets;
- ensuring that 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 product of the service;
- 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;
- ensuring that all arrangements are made for access, security procedures, virus checks, facilities, licenses and/or consents (without any cost to us), where you require us to do so 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.
- In terms of the Tax Administration Act section 240 (2) (d) of South Africa, the taxpayer further acknowledges that any and all liabilities under a Tax Act remains with the taxpayer.
- Due diligence documentation may include the provision to the Service Provider of, without limitation: original certified copies of identity documents, a proof of legal domicile no older than 3 months, a banker’s reference letter, certified copies of corporate documentation, and certified translations where applicable. Any certification must be done in accordance with the requirements of the applicable jurisdiction and as per the Service Providers instructions if any. The Client is obliged to provide the requested due diligence material prior to the commencement of services.
PROFESSIONAL OBLIGATION TO RESPOND TO NON-COMPLIANCE WITH LAWS AND REGULATIONS IN TERMS OF THE IRBA / SAICA CODE OF PROFESSIONAL CONDUCT (THE CODE)
- The partners and employees of our firm have a professional obligation to act in the public interest, and to act in order to: (i) you, the client, to rectify, remediate or mitigate the consequences of any identified or suspected non-compliance with laws or regulations as described in the Code; or (ii) deter the commission of the noncompliance or suspected non-compliance with laws or regulations where it has not yet occurred.
- “Non-compliance with laws or regulations (non-compliance) comprises acts of omission or commission, intentional or unintentional, committed by a client, or by those charged with governance, by management or by other individuals working for or under the direction of a client which are contrary to the prevailing laws or regulations.”
- Where we encounter non-compliance or suspected non-compliance we will seek to obtain an understanding of the matter. Where appropriate, we will discuss the matter with the appropriate level of management at the company, or those charged with governance in order that such people can take appropriate action to rectify, remediate or mitigate the consequences of the non-compliance, deter the commission of non-compliance where it has not yet occurred or disclose the matter to an appropriate authority where required by law or regulation or where considered necessary in the public interest, having regard to the appropriateness of the response of management and, where applicable, those charged with governance and other relevant factors in accordance with the Code.
- We, in encountering non-compliance or suspected non-compliance, are also obliged to comply with applicable legislation or professional standards, which may require us to disclose the matter to an appropriate authority.
- We also have a professional responsibility to consider whether the response of the company to the instance of non-compliance or suspected non-compliance is adequate, and may determine that further action is necessary. Such further action may include, among other actions, the disclosure of the matter to an appropriate authority. We will disclose the matter to an appropriate authority only where, in the professional judgement, the extent of the actual or potential harm that is or may be caused to the company, investors, creditors or employees or the general public is sufficient to justify the disclosure.
- In exceptional circumstances, we may be required to immediately disclose the matter to an appropriate authority where we have become aware of actual or intended conduct that we have reason to believe would constitute an imminent breach of law or regulation that would cause substantial harm to the company, investors, creditors, employees or the general public. In such circumstances we will discuss the matter with the management or those charged with governance of the company where it is appropriate to do so.
DETECTION OF FRAUD, ERROR AND NON-COMPLIANCE WITH LAWS AND REGULATIONS
- The primary responsibility for safeguarding the assets of the company and the prevention and detection of fraud, error and non-compliance with laws or regulations rests with the directors and management.
- It is the responsibility of the directors of the company to ensure through oversight of management, that the company establishes and maintains internal control to provide reasonable assurance with regard to the reliability of financial reporting, effectiveness and efficiency of operations and compliance with applicable laws and regulations.
- It is the responsibility of management to establish a control environment and maintain policies and procedures to assist in achieving the objective of ensuring, as far as possible, the orderly and efficient conduct of the company’s business.
- Our engagement is not to detecting material misstatements in the financial statements or accounting records, including any material misstatements resulting from fraud, error or non-compliance with laws or regulations. However, we will communicate any illegal acts, material errors, identified fraud or information that indicates that a fraud may exist, identified during our audit, to the appropriate level of management as soon as practicable.
REPRESENTATIONS BY MANAGEMENT
- As part of our engagement process, we may request management to provide us with written confirmation concerning representations made to us or that we require in connection with the engagement.
FEES TERM AND TERMINATION
- Your Agreement lasts for the period stated in it and will be automatically extended for successive periods equal to the length of the initial term subject to the terms and conditions stated herein.
- Our fees will be agreed with you in advance. Recurring annual fees will be quoted as part of your service schedule. Ad hoc work will be billed ad hoc and are payable on presentation of the invoice. For fees not agreed in advance we will render invoices in respect of the services comprising fees, disbursements and VAT thereon (where appropriate), together with any other foreign taxes (if applicable) that might be payable thereon (“fees”). Details of our fees and any special payment terms will be set out in the Agreement. The Service Provider retains the right to only start with services once full payment of the fees has been received or alternatively as indicated on the payment instructions.
- Our fees are based on the time spent on your affairs by The Service Provider persons or agents, as the case may be and on the levels of skill and responsibility involved, the nature and complexity of the services, and the resources required to complete the engagement. The fees may differ from estimates that may have been supplied, which estimates will be provisional only. Stringent reporting requirements or deadlines imposed by you might require work to be carried out at a higher level than usual or outside normal working hours. This may result in increased costs. Additional fees may also result from material changes in the services or from difficulties in obtaining information, which could not reasonably have been foreseen
- Termination of this agreement requires one months notice. Should you terminate this agreement you may indicate so 30 days in advance by notifying our firm per email after which you will receive an acknowledgement from our firm of your intention to do so. Only an acknowledgement of receipt by or firm will act as termination event. No refunds for any deposits or payments made to our firm will be made should you cancel this agreement. Our firm will endeavour to finalise and bring all work up to the date of termination. We will be entitled to raise an invoice upon receipt of such notification for all work done to date and not yet billed, at our standard charge-out rates, including disbursements incurred. In such event, you undertake to settle our account in full prior to our handing over your documentation and records to you or to your appointee.
- In the event that you have contracted our firm to make use of Xero Cloud Accounting or any other digital or Software as a Service application our firm will contract with the software provider on your behalf. It should be noted that termination of services with any of these service providers requires one month notice for which you will be billed and said amount be recoverable by our firm from yourself.
- In return for the delivery of the services by us, you will be required to pay our fees, without any right of set-off, on presentation of our invoice.
- You have the option of allowing our firm to deduct the amount payable to us by debit order from your account. In such an event you will be required to sign a debit order mandate.
- In the event that invoices are not settled within 30 days of invoice date, we will charge compound interest annually at a minimum of 3% per month until the debt is settled. Should this annual interest rate however fall below the prime interest rate of South Africa this rate will be adjusted to reflect at least that rate. All payments will be allocated first to interest, then to disbursements, and then to the oldest outstanding fee.
- Management further holds the rights to impose a termination fee to cover associated cost.
- You will be liable for any and all legal expenses and/or disbursements (all on an attorney and own client scale) incurred and/or expended by The Service Provider in recovering any amount due by you to The Service Prover arising and/or resulting from any work performed in terms of the Agreement letter and/or the work undertaken, or to be undertaken, by The Service Provider.
- Costs and time spent in legal matters or proceedings arising from our engagement, such as subpoenas, testimony, or consultation involving private litigation, arbitration or government regulatory enquiries at your request or by subpoena will be billed for separately.
- Subscription services relating to any recurring package shall increase at least in line with inflation year on year which increase you hereby accept. Any additional changes to your recurring service schedule shall be discussed with you in advance. Should you dispute or not be in agreement with any such increase you may lodge your query no later than 2 weeks from receiving such notice.
ANTI-MONEY LAUNDERING AND DUE DILIGENCE
- The Client shall provide the Service Provider with such information as the Service Provider considers necessary in order to ensure that the Company complies with applicable legislation on anti-money laundering and due diligence. The Client is responsible for ensuring that the information provided to the Service Provider is correct. In particular and in relations to establishment services the client also represents to the Service Provider that assets or funds introduced to a company do not represent either directly or indirectly the proceeds of a crime or other illegal activity. In order to enable the Service Provider to meet its legal obligation, the Client shall keep the Service Provider fully and promptly informed of any changes in the beneficial ownership, shareholding and officers of the company. The client shall immediately inform the Service Provider of the nature of the activities of the company and seek the Service Provider’s prior written consent before making any material changes to those activities.
- We may choose to communicate with you by electronic mail 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 unauthorised access to such communications, the risks of corruption of such communications, the risk of errors or loss of information and the risks of viruses or other harmful devices and that you will perform virus checks. We will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically.
- We recognise that systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazard.
- We confirm that we each accept the risks of and authorise electronic communications between us. We each agree to use commercially reasonable procedures to check for the then most commonly known viruses before sending information electronically. We shall each be responsible for protecting our own systems and interests in relation to electronic communications including you and us (in each case including our respective directors, employees or agents) shall have no liability to each other on any basis, whether in contract, delict (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between us and our reliance on such information.
- We have the right to use your name as a reference in proposals or other similar submissions to other prospective clients, unless you specifically withhold permission for such disclosure. If our firm wish to use details of the work done for you for references purposes, we will obtain your permission in advance.
- We may receive information from you or from other sources in the course of delivering the services and:
- we will consider the consistency and quality of information received by us;
- we will not seek to establish the reliability of information received from you or any other information source. Accordingly, we assume no responsibility and make no representations with respect to the accuracy, reliability or completeness of any information provided to us;
- we will 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.
- Where oral information is given, we shall confirm such information in writing, if requested, setting out the background and context in which it is given. If you intend to place reliance on oral information and have not yet received such written confirmation, you must first request it. In the interests of certainty, we cannot accept responsibility for the consequences of your acting upon unconfirmed oral information. To the extent that our information is based on unaudited or third party information provided to us, obviously we cannot accept responsibility if such information is incorrect.
USE OF SOFTWARE AND OWNERSHIP
- Any working papers and files relating to services referred to in this agreement including electronic documents and files, are the sole property of the Service Provider. Upon termination of this agreement by either party as per the clause dealing with termination the Service Provider is under no obligation to provide you with any software or software backups.
- We will retain ownership of the copyright and all other intellectual property rights in the product of the services, whether oral or tangible. For the purposes of delivering services to you, we will 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 such services.
FINANCIAL INTELLIGENCE CENTRE ACT
- In terms of Section 29 of the Financial Intelligence Centre Act of South Africa we are required by law to report to the Financial Intelligence Centre certain suspicious or unusual transactions of which we become aware, such as those which may involve money laundering, which have no apparent business or lawful purpose, or which may be relevant to an investigation of evasion or attempted evasion of tax. This statutory requirement, which applies to both prospective clients and existing clients, overrides the professional ethics rules of confidentiality, which we observe.
- We confirm that neither the partner nor the firm is a registered financial advisor and does not provide financial advice in accordance with the provisions of the Financial Advisory and Intermediary Services Act 37 of 2002 of South Africa. Should any financial advice be provided, that would be co-incidental and informal. The partner or the firm does not intend that any such advice be acted upon. If financial advice is required, we can refer you to a registered financial advisor. By signing this letter, you agree that we may refer your financial information to a dedicated financial advisor which will make an assessment of your needs and contact you if required to do so.
CIRCUMSTANCES BEYOND OUR OR YOUR CONTROL
- Neither of us will be in breach of our contractual obligations, nor will either of us incur any liability to the other, if we or you are unable to comply with the Agreement as a result of any cause beyond our or your reasonable control. In the event of any such occurrence affecting one of us, that one shall be obliged as soon as reasonably practicable to notify the other, who will have the option of suspending or terminating the operation of the Agreement on notice, which notice will take effect immediately on delivery thereof.
THIRD PARTY RIGHTS
- The Agreement will not create or give rise to, nor will it be intended to create or give rise to, any third-party rights.
WAIVER, ASSIGNMENT AND SUB-CONTRACTORS
- Failure by any one of us to exercise or enforce any rights available to us shall not amount to a waiver of any rights available to either of us.
- Neither of us will have the right to assign the benefit or burden of the Agreement without the written consent of the other.
- We will have the right to appoint sub-contractors to assist us in delivering the services.
EXCLUSIONS AND LIMITATIONS ON OUR LIABILITY
- Without prejudice to any specific provision, any damage resulting from the error or omission of the Service Provider, its directors, employees or agents shall be borne by the Client, unless the Service Provider, its directors, employees or agents has acted with gross negligence or fraud or any other liability that cannot be excluded pursuant to applicable law. The Service Provider will not be liable for any loss sustained as a result of any mechanical breakdown, strike, delay or failure of any staff, manager or caretaker to perform their duties.
- Any damage whatsoever caused by or arising from, directly or indirectly, the error, failure, negligence, act or omission of any other person, system, institution, service provider or payment infrastructure shall be borne by the Client.
- The maximum liability of The Service Provider or any individual partner, director, or employee, as the case may be, of The Service Provider or of anybody or entity controlled by us or owned by us or associated with us in respect of direct economic loss or damage suffered by you or by other beneficiaries arising out of or in connection with the services for a specific engagement shall be limited to the fees charged and paid for such services in respect of a specific engagement or in the case of on-going services the maximum liability shall be equal to the annual fees for such specific engagement or specific tax type as outlined in the Agreement. The maximum liability will be an aggregate liability for all claims arising, whether by contract, delict, negligence, or otherwise.
- In the particular circumstances of the services set out in the Agreement, the liability to you and to other beneficiaries of each and all Service Provider persons in contract or delict or under statute or otherwise, for any indirect or consequential 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 loss or damage is caused, excluding our wilful misconduct, shall be excluded to the extent that such limitation is permitted by law.
- In determining the liability of The Service Provider, a court or an arbitrator shall limit the liability of The Service Provider to that proportion of the loss or damage suffered by you which is ascribed to The Service Provider by such court or arbitrator allocating a proportionate responsibility, having regard to the contribution to your loss or damage in question, or that of any other person, based upon relative degrees of fault, it being a term of the Agreement that the provisions of section 1 of the Apportionment of Damages Act, No.34 of 1956 will apply to all claims between us and that “breach of contract or gross negligence” and “damages” or “losses” as used herein shall be deemed to fall within the meanings of “fault” and “damage” as contained in that section of the above Act.
- You and other beneficiaries may not bring any claim personally against any individual partner, director, employee or agent, as the case may be, of The Service Provider or of anybody or entity controlled by us or owned by us or associated with us in respect of loss or damage suffered by you or by other beneficiaries arising out of or in connection with the services. This restriction shall not operate to limit or exclude the liability of The Service Provider as an entity for the acts or omissions of its partners, directors, employees and agents. Any claim by you or other beneficiaries must be made (for these purposes a claim shall be made when court or other dispute-resolution proceedings are commenced) within two years of the date on which you or they became aware, or ought reasonably to have become aware, of circumstances giving rise to a claim or potential claim against us.
- You will indemnify The Service Provider and any Service Provider persons and their associate entities and hold them harmless against any loss, damage, expense or liability incurred by the parties and/or persons as a result of, arising from, or in connection with a combination of the following two circumstances:
- Any breach by you of your obligations under the Agreement;
- Any claim made by a third party or any other beneficiaries which results from or arises from or is connected with any such breach.
- Should the Service Provider be contracted to assist with the opening of a Bank account, the Service Provider remains a third party to the relationship between the Bank and the client. Therefore, under no circumstance can the Service Provider be held responsible of the relationship between the Bank and the Client. The Service Provider has no authority to act and does not purport to act as an employee, representative or officer of any Bank and/ or to sign on behalf or otherwise incur any liability of any sort on behalf of any Bank.
- Each clause or term of the Agreement and terms and conditions constitutes a separate and independent provision. If any of the provisions of the Agreement are held by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
- You agree to and accept the provisions of the Agreement 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 Agreement, as if they had each signed a copy of the Agreement and had agreed to be bound by it. However, you alone shall be responsible for payment of our fees.
- Where the Client is more than one person:
- each such person hereby appoints the other such person(s) to act as his agent to exercise full power and authority in connection with the Services on his behalf; and
- all obligations of the client under these terms and conditions or any agreement and/or in connection with the services shall be joint and several.
- Your signature constitutes agreement to settlement of any dispute, controversy or claim by arbitration. The arbitration shall be held before a single arbitrator who is knowledgeable in legal procedures, the rules of evidence, and attestation-related work. The arbitrator shall be a person nominated by you and us or failing agreement between you and us, within seven (7) days after the arbitration has been demanded, shall be a person appointed by the president of the Arbitration Foundation of South Africa and the rules of the Arbitration Foundation of South Africa will apply to any such proceedings. The arbitrator shall deliver a written opinion setting forth findings of fact, conclusions of law, and the reasons for the decision. Any opinion entered as a final judgement will be final and binding on both parties.
USE AND DISTRIBUTION OF INFORMATION AND WRITTEN DOCUMENTS
- It is agreed that neither The Service Provider nor yourself will disclose to any third party, without the prior written consent of The Service Provider or yourself, any proprietary or confidential information which is received from the other party for the purposes of providing or receiving services in terms of this Agreement. It is agreed that any such information received from the other party shall be used only for the purposes of providing or receiving services in terms of this Agreement and any such information shall be held in the strictest confidence. To the extent appropriate and as required by you, we shall observe the privilege rules applicable to our directors/partners or employees.
- Reports, opinions, memoranda and documents issued by The Service Provider are confidential and prepared exclusively for the client’s use and exclusively for the purposes set out therein. It may not be referred to in any other document, nor made available or copied in whole or in part to any other party without our prior express written consent, which consent may be given or withheld at our absolute discretion. Copies may be made available to your advisors provided that the information is to be used by them solely for the purposes stated therein and provided that they are made aware of the terms of this paragraph. This limitation will obviously not apply to the provision of this report in compliance with any order of court, subpoena or other judicially enforceable document.
- The Service Provider reserves the right, but will not be obliged, to levy a recruitment fee of 20% (twenty per cent) (excluding VAT) on the first year’s cost to company remuneration of any of its staff accepting direct employment with the client, or any associate of the client, while under employment contract or within three months of the termination of employment with The Service Provider.
- You hereby consent to the jurisdiction of the Magistrate’s Court Act No. 32 of 1944 of any districts having jurisdiction in terms of section 28 of the said Act, in any action instituted by us against you arising from the services agreement.
DATA PROCESSING AND DATA PROTECTION
- The Service Provider will process personal data which as per the definition found in the General Data Protection Regulation (GDPR) means any information relating to an identified or identifiable natural person also referred to as data subject. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identified such as a name, an identification number, location data, an online identified or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person
- The processing of data means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, retrieval, consultation, adaption or alteration, use, disclosure by transmission, dissemination and suppression of such personal data or otherwise making available, alignment or combination, restriction, erasure or destruction.
- The recipients of the personal data may include the Service Provider affiliated companies acting as subcontractors or auxiliaries, the registered agents in the jurisdictions relevant to the services, our IT suppliers or financial providers such as our payment acquirers, other third-party service providers, including banks, whom the Client has expressly requested to be introduced to, the public companies’ registries, or the legal authorities. All these disclosures which have been listed shall only occur in accordance with the GDPR and our business relationship with these third part providers shall be a contractual one whereby both parties agree to abide by the obligations found in the GDPR such as the obligation of confidentiality on whoever is handling the personal data of the data subjects.
- To comply with “Know your client” obligations and ensure the correct service delivery, the processed data will include particulars of the Client, such as the full legal name(s), the nationality, the date of birth, domicile and residential addresses, passport numbers, passport validity dates, and contact details of identifiable individuals, as well as supporting documents evidencing such personal data and service instructions from the Client.
- The Client is under an obligation to maintain his/her personal data up to date during the entire contractual relationship with the Service Provider, and to submit any required supporting document in relation to his/her update obligation in the exact form prescribed by the Service Provider.
- You hereby acknowledge that we provide a variety of other services to a large and diverse range of clients. The provision of the services to you will not prevent us from providing the same or similar services to other parties, some of whom could be competitors of yours or who may be in conflict with you. You also acknowledge that we may already have provided the same or similar services to other parties. Where we are aware of the same or similar services being provided to other parties, safeguards will be implemented to protect your interests. These safeguards will include the use of different personnel and other barriers to ensure the confidentiality of information.
SECTION BELOW DEALS WITH ASPECTS RELATING TO SPECIFIC SERVICES
ANNUAL FINANCIAL STATEMENT – COMPILATION ENGAGEMENT
- On the basis of information that you will provide, we will assist you in the preparation and presentation of the financial statements for your entity, the statement of financial position as at year end, and the statement of comprehensive income, statement of changes in equity and statement of cash flows for the year that ended, and the notes, comprising a summary of significant accounting policies and other explanatory information, on the historical cost basis, reflecting all cash transactions with the addition of trade accounts payable, trade accounts receivable less an allowance for doubtful accounts, inventory accounted for on an average cost basis, current income taxes payable as at the reporting date, and capitalization of significant long-lived assets at historical cost amortized over their estimated useful lives on the straight-line basis. These financial statements will not include explanatory notes, other than a note describing the basis of accounting as set out in this Agreement.
- The purpose for which the financial statements will be used is to provide full-year financial information showing the company’s financial position at the financial reporting date as per the year end contracted and financial performance for the year then ended. The financial statements will be solely for your use and will not be distributed to other parties.
- A compilation engagement involves applying expertise in accounting and financial reporting to assist you in the preparation and presentation of financial information. Since a compilation engagement is not an assurance engagement, we are not required to verify the accuracy or completeness of the information you provide to us for the compilation engagement, or otherwise to gather evidence to express an audit opinion or a review conclusion. Accordingly, we will not express an audit opinion or a review conclusion on whether the financial statements are prepared in accordance with the basis of accounting you have specified, as described above.
- We will perform the compilation engagement in accordance with the International Standard on Related Services (ISRS) 4410 (Revised), Compilation Engagements. ISRS 4410 (Revised) requires that, in undertaking this engagement, we comply with relevant ethical requirements, including principles of integrity, objectivity, professional competence and due care. For that purpose, we are required to comply with the International Ethics Standards Board for Professional Accountants’ Code of Ethics for Professional Accountants (IESBA Code).
- The compilation engagement to be performed is conducted on the basis that you acknowledge and understand that our role is to assist you in the preparation and presentation of the financial statements in accordance with the financial reporting framework you have adopted for the financial statements. Accordingly, you have the following overall responsibilities that are fundamental to our undertaking the compilation engagement in accordance with ISRS 4410 (Revised):
- Responsibility for the financial statements and the preparation and presentation thereof in accordance with a financial reporting framework that is acceptable in view of the intended use of the financial statements and the intended users.
- Responsibility for the accuracy and completeness of the records, documents, explanations and other information you provide to us for the purpose of compiling the financial statements.
- Responsibility for the judgements needed in the preparation and presentation of the financial statements, including those for which we may provide assistance in the course of the compilation engagement.
Our Compilation Report
- As part of our engagement, we will issue our report attached to the financial statements compiled by us, which will describe the financial statements, and the work we performed for this compilation engagement. The report will also note that the use of the financial statements is restricted to the purpose set out in this Agreement, and that use and distribution of our report provided for the compilation engagement is restricted to you, as the directors of the Company. Should management require our report to either state that an independent review or an audit was undertaken this should be requested specifically noting the variation in service terms relating to such engagements.
- Subject to management review and approval, we will carry out such bookkeeping as we find necessary prior to the preparation of the financial statements, prepare the necessary federal and provincial income tax returns, and prepare any special reports as required. Management will provide the information necessary to complete the returns / reports and will file them with the appropriate authorities on a timely basis.
- General taxation compliance services may include
- assistance with preparation and submission of income, provisional, and employees’ tax returns, schedules thereto, related compliance, and advising thereon;
- Assistance with preparation and submission of dividend tax returns, schedules thereto, related compliance, and advising thereon.
- Assistance with preparation and submission of VAT returns, schedules, related compliance, and advising thereon. In the event that we prepare monthly value added tax returns for submission based on supporting documentation supplied by you. In view of the penalties for late submission of VAT returns, we shall expect to receive the necessary information well in advance of any deadline, by the 7th day of the month following the end of the return period, to allow sufficient time to comply with filing timelines.
- Turnover reconciliations and calculation of apportionment ratios for VAT.
- We confirm that it is your responsibility to provide us with complete and accurate information in respect of your taxation affairs. It is not our responsibility to ensure that you provide all relevant information to SARS.
- If SARS has not recorded our address as your official postal address, we cannot be held responsible for any penalties or interest on the late submission of returns, or late payments of any taxes if the returns, assessments, and other relevant documents were not timeously presented to us for action.
- General tax and legal advisory services in connection with the establishment of new entities and assistance with registration for income tax, employees’ tax, VAT and related registrations of new entities.
Interaction with SARS:
- General tax advisory services in connection with queries from or other interactions with the South Africa Revenue Service (SARS) regarding income tax, employees’ tax, dividend tax, capital gains tax, VAT, customs and excise duties, and similar taxes.
- Assistance with the preparation of responses and related correspondence in connection with SARS queries as above, requesting reasons, objections, appeals and alternative dispute resolution procedures, attendances at meetings, assistance with court papers and other representations, but excluding litigation services in a court of law.
- Assistance with the formulation of applications, rulings, directives, interpretations and similar correspondence with SARS and engaging with them in connection therewith, for the taxes listed above.
- Advising on and assisting with regularization of any omission or oversight in the event that it is discovered that an error has occurred, for the taxes listed above.
- Visits to SARS are out of pocket expenses and recoverable by our firm from you.
- Updating of personal or company information at SARS is to be done in person or by the representative taxpayer. Our firm or related tax practitioner cannot perform this service on your behalf.
- General tax advisory services in connection with the income and other tax consequences of any proposed business acquisition or disposal and advising thereon, including assistance with implementation thereof.
- General tax advisory services in connection with the tax consequences of any transaction, structure, agreement or other matter which any company in the Group is or may become engaged in, or may be interested in, including but not limited to income tax, employees tax, capital gains tax, secondary tax on companies, VAT, customs and excise and international tax matters and interpretation. You will appreciate that tax planning and advice of even the highest standard are based on interpretation of the law and experience with the South African Revenue Services. Therefore, the conclusions reached and views expressed are often matters of opinion rather than of certainty. such advice given in general does not constitute a professional taxation opinion as contemplated in Section 223(3)(b) of the Tax Administration Act (Act 28 of 2011). Should you require such an opinion our office will deal with this matter separately.
Year End Tax Provisioning:
- Assistance with preparation of tax computation for year-end provisioning purposes and advising thereon.
- Based on the services agreed to in our Agreement our office shall be responsible for mentioned statutory tax returns (eg Value‑Added Tax (VAT), PAYE, SITE, IRP6, IT12, IT14, IRP5 forms).
- We confirm that it is your responsibility to provide us with complete and accurate information in respect of your taxation affairs. It is not our responsibility to ensure that you provide all relevant information to SARS.
- We cannot be held responsible for any penalties or interest on the late submission of returns, or late payments of any taxes if the returns, assessments, and other relevant documents were not timeously presented to us for action. In addition, we will not be liable for any penalties or interest arising from any changes in SARS practice or events outside of our control.
- Any general queries, request and support from our office will be based on instruction from you for which your office will provide us with relevant and accurate information to proceed.
- Verifications or audits by SARS is out of our control and occurs at random. We cannot anticipate whether you will be selected by SARS for a verification or an audit. In the event that you are selected by SARS for a verification or an audit our firm shall engage with SARS on your behalf. Any cost associated will be for your account.
- Monthly and ongoing accounting services shall be subject to:
- our firm making use of Xero Cloud Accounting, and any other cloud-based software deemed necessary to provide professional service to you.
- We will further, based on our understanding of your needs:
- keeping the records of receipts and payments;
- reconciling the cash book balances monthly with the bank statements;
- posting to the general ledger;
- keeping posted and balanced accounts payable and accounts receivable ledgers (should this explicitly be required);
- preparing a detailed list of ledger balances;
- compiling the annual financial statements, which represent a summarisation of the detailed accounting entries made by ourselves.
- Management accounts
The preparation of management accounts is based on information provided by management and does not entail any formal or informal review or audit process by the Service Provider.
- Payroll services shall be provided taking into account. the following:
- to calculate the monthly salaries in accordance with the current applicable legislation;
- to supply you each month with appropriate payslips together with a copy of the payroll summary schedules;
- to advise you monthly of the amount payable to SARS in respect of taxes due, and both employees’ and employer’s unemployment insurance contributions;
- to operate a designated third-party merchant account with Netcash (or equivalent) to effect payments therefrom, should this be the case;
- at the end of the tax year, to prepare the annual return for your approval and signature and, upon its return, to forward it to SARS. We shall also prepare the personal end of year returns for the persons who have been included on the payroll during the tax year;
- to deal with/respond to any communication from SARS relating to the company’s payroll.
- You would be responsible for ensuring the following as part of the monthly payroll service:
- amendments to the standing data required for each month’s payroll (e.g. salary increases, overtime payments) are notified to us in writing by the 20th day of each month.
- sufficient funds are available on a timely basis to meet the full cost of the payments being made by us on your behalf, if this is the case.
- provide us with sufficient supporting documentation affecting any change to the standing data of an employee. In particular, no changes to any banking details of any employee shall be made without the required valid supporting documentation.
COMPANY SECRETARIAL ASSISTANCE
- As a company registered in South African, the company must comply with certain minimum requirements as stipulated in the Companies Act of 2008 and other relevant legislation.
- Should your service schedule include this service we shall carry out the following services:
- Maintenance of statutory books:
- Register of members;
- Register of debenture holders;
- Register of directors and officers;
- Register of pledges, cessions and bonds;
- Register of interests in contracts of directors and officers; and
- Minute books of the proceedings of general and board meetings
We shall maintain these registers in an up-to-date condition, and in the manner required by the Companies Act. In order to do this, we shall need to be notified of any changes in the following:
- Shareholders, their holdings or addresses;
- Directors or their particulars (i.e. residential address, business occupation, nationality, other SA directorships or their interests in group companies);
- Company secretary or his address;
- Creation, or satisfaction, of charges over the assets of the company; and
- Registered office.
- In the event that our firm do tend to compliance requirements or submissions at CIPC this will be explicitly indicated on our service schedules / quotations. Submission of such compliance requirements are hereby fully approved by yourself and you hereby provide our office with the necessary and full mandate, as indicated below, to make such submissions on your behalf. Monies payable to CIPC for compliance requirements are done so on behalf of you, the client, and such fees shall not form part of our normal service fees.
You in the capacity as a director/member of the entity which agrees to these terms and conditions hereby nominate, constitute and appoint the Service Provider with Agent Code CRON01 with power of substitution to be you lawful agent in my name place and stead to:
- lodge all documentation including Annual Financial Statements/Financial Accountability Supplement/Company Public Interest Score Sheet, etc. pertaining to the lodgment of the annual return;
- electronically correct/change any such information on the application form;
- submit information at our disposal, unless otherwise provided;
- electronically pay the annual return, and
generally affect the purpose aforesaid, to do or cause to be done whatsoever shall be requisite, as fully and effectively, for all intents and purposes as I might or could do if personally present and acting therein hereby ratifying, allowing, confirming, promising and agreeing to ratify, allow and confirm all and whatsoever my agent shall lawfully do or cause to be done by virtue of those present.
COMPANY FORMATION INTERNATIONAL EXPANSION AND RELATED SERVICES
- The Client represents and undertakes that it has taken at its own expense appropriate tax, legal, investment, financial and accounting advice with regard to the establishment, use and management of any off shore entity or structure proposed or setup by the service provider. Establishment services does not automatically or specifically include or provide for tax, legal, investment, financial or accounting advice.
- The successful implementation of any offshore structure is largely dependent on you passing the KYC (know your client) requirements as well as providing sufficient proof and meeting all requirements imposed by any offshore jurisdiction. We cannot be held liable for you not being able to fully effect the implementation of any structure should you not be able to meat the requirements.
Bank Account Opening
- The Service Provider can perform the service of assistance in relation with the opening of an account with a bank or another financial service provider, such as a collection account provider, for the Client. The Service Provider may propose to the Client a list of Banks, but it is you the Client who is responsible for the choice of the Bank. The Client may choose a Bank either among the list of Banks provided by the Service Provider or a third-party Bank. The successful opening of any bank account cannot be garanteed and is largely dependent on the requirements of each Bank. The successful setting-up of complementary services such as credit cards, chequebooks or internet banking access is not guaranteed and is offered “as is”.
Appointment of a director
- The Client certify that each of the directors to be named on a company in accordance with an order form submitted to the Service Provider and who has not signed a “Consent to Act as Director” has consented to be a director of the company on its incorporation and that each director who is a natural person has attained the age of 18 years.
LABOUR AND RELATED EMPLOYEE SERVICES
- To enable the Service Provider to represent the client in union agreements, CCMA or Labour Court Matters the client undertakes, if not already, to become a member of a relevant employers’ organisation as required by the Service Provider.
- All consulting work and advice on labour related matters are billed on a time spent basis where no monthly retainer package has been accepted by the client. An estimate will be sent to the client and upon receipt of payment on the estimate amount the work can commence.
- For all disciplinary hearings the client agrees that the merits of any dismissal cannot be guaranteed by the service provider once a matter reaches the CCMA or Bargaining Council and the client will not have any claim against the service provider or firm should a dismissal be deemed to be substantively unfair for any reason what so ever.
- Regarding the procedural fairness of a disciplinary hearing the commitment of the service provider is that it will ensure a fair procedure is followed during the convened disciplinary hearing but no liability can be placed on the service provider for any actions, omissions or the like outside of the convened disciplinary hearing.
- It is the duty of the client to ensure that the operations of the client is in compliance with regards to Labour Relations within the country that it operates in. Services that are provided is based on advice only and the client is responsible, where the advice is accepted, to implement the said advice and maintain any system or procedure that it deems necessary after consulting with the service provider.
- By agreeing to these services, the client also agrees that the service provider may, after consulting the client and presenting the client with a fee schedule, obtain the services of third-party experts where the service provider deems this necessary and the costs will be paid upfront by the client.
- Travel charges at our standard rates will be payable for all travel relating to Labour Law services.