APPENDIX A: STANDARD TERMS AND CONDITIONS FOR FINANCIAL ACCOUNTING SERVICES
Affinity Cloud Accounting (Pty) Ltd
All services provided by the Firm to a client in accordance with the Written Agreement with that client will be subject to the following standard terms and conditions.
1.DEFINITIONS
Unless the context indicates otherwise, the words and phrases set out below shall have the following meanings:
- Client means the entity/entities, or the persons, named in the Written Agreement to which or whom services are to be provided by the Firm.
- Firm means Affinity Cloud Accounting (Pty) Ltd, a Private Company registered in accordance with the laws of the Republic of South Africa; any division of the Firm entity owned or managed by the Firm; and the partners, directors, and employees of the Firm. The contracting element of the Firm will usually be identified by our letterhead or set out in the Written Agreement.
- Parties means the Client and the Firm, and “a Party” shall as the context requires, be either of them.
- Services mean the financial accounting services to be rendered by the Firm for and on behalf of the Client as set out in this Written Agreement.
- Written Agreement means the letter of engagement including terms and conditions set out in this document together with any annexures and schedules hereto entered by the Parties for the performance of the Services.
Words referring to the singular shall include the plural, and vice versa; words referring to the masculine gender shall include the feminine and neuter genders, and vice versa; and words referring to natural persons shall include legal persons, and vice versa.
2.HEADINGS HAVE NO EFFECT
The headings in this Written Agreement shall not in any way be taken into consideration in the interpretation and/or construction of the applicable terms and conditions herein.
3.GENERAL PRINCIPLES
In providing any services, the Firm will:
- Not act in the capacity of management.
- Not act as a formal advocate of or representative for the Client.
- Not decide on what recommendations/alternatives to accept or implement.
Whereas the Client will be responsible for:
- Making all management decisions and performing all management functions including deciding on what recommendations/alternatives to accept and implement.
- Designating a competent management member to oversee the services.
- Evaluating the adequacy and results of the services.
- Establishing and maintaining internal controls and for determining the adequacy of accounting or other relevant information systems.
- Monitoring ongoing activities.
- The maintenance of the accounting records, preparation of the annual financial statements, and safeguarding the assets of the entity.
This Written Agreement shall be governed exclusively, in all respects by, and shall be interpreted in accordance with the laws of South Africa.
The Parties may approach a court with competent jurisdiction in South Africa to settle any dispute that may arise between the Parties pertaining to this Written Agreement and/or the provision of the Services.
This Written Agreement constitutes the entire agreement between the Firm and the Client and supersedes any previous oral and/or written representations and/or agreement, if any, between the Parties. No amendments or variations of this Written Agreement shall be of any force or effect unless reduced to writing and signed by both the Firm and the Client.
The Client hereby consents to the Firm subcontracting the Services to the extent that such subcontract will be subject to the same terms and conditions as contained in this Written Agreement. It is specifically recorded that the Firm shall remain liable for the obligations of its subcontractors.
Where it is intended that the services should also be provided to group companies and/or 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 the Firm in terms of a separate engagement letter of agreement that may be concluded with the group company or division concerned.
The Firm and the Client are independent contractors. Neither Party shall act and/or purport to represent itself as an agent of the other Party, or in any manner assume and/or purport to create any obligations and/or liabilities in the name of the other Party. Neither Party shall be liable for the debts of the other Party, however incurred.
The Firm is required to comply with the independence requirements as set out in the applicable Code of Professional Conduct for Financial Accounting Services.
To the extent that the Firm is permitted to provide the Services set out in this Written Agreement, the Client is responsible for the following to ensure that the Client management makes all judgments and decisions that are the responsibility of management:
- Designate an individual (preferably within senior management) who possesses suitable skill, knowledge, and experience to be always responsible for the Client decisions and to oversee the Services concerned.
- Provide oversight of the Services concerned and evaluate the adequacy of the results of these Services performed for the Client’s purpose.
- Accept responsibility for the actions, if any, to be taken arising from the results of the Services.
The same responsibilities as those discussed in the preceding paragraph apply to the Client when the Firm is engaged to provide Services that are related to the subject matter or subject matter information of any other assurance engagement provided by the Firm.
4.VALIDITY
Where there is a conflict between the terms in any of the components of the Written Agreement, these standard terms and conditions will apply.
5.PROVISION OF SERVICES
The Firm will endeavour to deliver the Services with the requisite level of skill, integrity, and professional competence at all times.
Where the delivery of the Services requires information from or the cooperation 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 cooperation on a timely basis. Reasonable facilities and access to data and information will be provided by the Client. Where such data pertains to third parties such as customers and/or suppliers of the Client, the Client warrants that it has obtained the necessary consent from the third party in particular relating to Personal Information as defined in the Protection of Personal Information Act 4 of 2014 (as amended) and indemnifies the Firm against any claims that may be instituted as a result of the failure to procure such consent.
Where the Firm personnel to deliver the Services are named in this Written Agreement, the Firm will take reasonable steps to ensure that such personnel are used. Nevertheless, the Firm reserves the right to engage other personnel in the event that named personnel is unavailable and shall reasonably notify the Client of such changes, provided that the replacement personnel (including temporary replacement) have equivalent skills and/or ability as the named personnel. The Firm will endeavour to avoid any disruption to the delivery of the Services as a result thereof.
6.INTELLECTUAL PROPERTY
The Firm retains intellectual property rights to all its materials and working papers which include, but not limited to methodologies, know-how, trade secrets, software, and tools used/provided and/or developed by the Firm in providing and delivering the Services.
Except for cases where a license is expressly granted by the Firm, the Client shall acquire no rights or interest in such property.
Any intellectual property and proprietary rights in material provided by the Client for performing the Services shall remain the property of the Client.
Upon expiry or termination of this Written Agreement for any reason whatsoever, each Party shall immediately cease to use the intellectual property of the other Party.
7.NON-EXCLUSIVITY
The Client acknowledges that the Firm 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 the Firm 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.
The Client also acknowledges that the Firm may already have provided the same or similar Services to other parties.
Where the Firm is aware of the same or similar Services being provided to other parties, safeguards will be implemented to protect the interests of the Client. These safeguards will include the use of different personnel and other barriers to ensure the confidentiality of information.
While the Firm will be bound by the confidentiality clauses mentioned below, the Firm may request the right to use the name of the Client and a description of the Services as a reference in seeking to provide Services to other parties, unless the Client expressly forbids this.
8.CONFIDENTIALITY
The Firm will keep confidential all information obtained from the Client and will not disclose such information, except:
- Information in respect of which the Client has provided consent to the disclosure in writing;
- Information that has been or which is made public otherwise than through a breach of this Agreement;
- Information that has been independently obtained by the Firm other than from the Client, including information already in the possession of the Firm prior to its disclosure by the Client;
- To the extent required by our obligation to report certain matters in accordance with our regulatory and professional obligations, including those referred to in clause 10; and
- To the extent any disclosure is required to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time.
Notwithstanding the above clause, the Client acknowledges that the Firm may be required to disclose confidential information to its legal advisers, insurers, the Independent Regulatory Board for Auditors, or to any other Party as required by law or in terms of a judicial order. Disclosure in any of these instances will be permissible and will not be a breach of confidentiality, provided that in relation to disclosure to legal advisers and insurers, these parties undertake confidentiality substantially similar to this paragraph 9.
The Client agrees to keep confidential any methodologies, technology, know-how, trade secrets, software, and tools used/provided and/or developed by the Firm in providing and delivering the Services. Similarly, any information provided and/or developed by the Firm in relation to the Services will be kept confidential unless the Firm expressly provides its prior consent in writing to the Client to disclose such confidential information to any other Party. This confidentiality requirement will not apply to any information that the Client is required by law to disclose to another Party.
Where the Client does not accept a proposal accompanied by a Written Agreement, any documentation or property specifically identified by the Firm will be returned to the Firm on request.
The Client acknowledges that the Firm is required in terms of professional standards to retain documentation to support the work done and any deliverables provided. Where this documentation contains confidential information of the Client, the Client gives consent to the Firm to retain such documentation for the purposes as stipulated herein.
9.PROFESSIONAL OBLIGATION TO RESPOND TO NON-COMPLIANCE WITH LAWS AND REGULATIONS
The partners and employees of the Firm have a professional obligation to act in the public interest and to act in order to:
- Enable the Client to rectify, remediate, or mitigate the consequences of identified or suspected non-compliance with laws or regulations as described in the applicable Code of Professional Conduct for Financial Accounting.
- Deter the commission of non-compliance 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 the Firm encounters non-compliance or suspected non-compliance, it will seek to obtain an understanding of the matter. Where appropriate, the Firm will discuss the matter with the appropriate level of management at the Client, 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.
The Firm, in encountering non-compliance or suspected non-compliance, is also obliged to comply with applicable legislation or professional standards, which may require the Firm to disclose the matter to an appropriate authority. Furthermore, the Firm is obliged to communicate non-compliance or suspected non-compliance within the Firm where the Client is also an audit Client or a component of an audit Client of the Firm. If the Client is an audit Client or a component of an audit Client of a network Firm, the Firm will consider communicating the non-compliance or suspected non-compliance with the network Firm.
If the Client is not an audit Client of the Firm or network Firm, the Firm will consider communicating the non-compliance or suspected non-compliance with the Firm that is the external auditor of the Client.
The Firm also has a professional responsibility to consider whether the response of the Client 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. The Firm will disclose the matter to an appropriate authority only where, in the professional judgment of the engagement partner, the extent of the actual or potential harm that is or may be caused to the Client, investors, creditors, employees, or the general public is sufficient to justify the disclosure.
In exceptional circumstances, the Firm may be required to immediately disclose the matter to an appropriate authority where the Firm has become aware of actual or intended conduct that the Firm has reason to believe would constitute an imminent breach of law or regulation that would cause substantial harm to the Client, investors, creditors, employees, or the general public. In such circumstances, the Firm will discuss the matter with the management or those charged with governance of the Client where it is appropriate to do so.
10.PROFESSIONAL FEES
The basis of charging professional fees is set out in this Written Agreement.
Disbursements and out-of-pocket expenses incurred in providing the Services will be charged at cost or the Firm's predetermined rates, which will be made available prior to such cost being incurred. These include all reasonable expenditure necessary for the successful completion of the Services including, but not limited to, traveling, subsistence, goods and services purchased for and/or on behalf of the Client, communications, stationery, report and presentation material, secretarial time, and computer charges.
Invoices for fees and expenses/disbursements will be presented as agreed or upon completion of the Services, whichever is earlier. Invoices are payable immediately upon receipt of the invoice.
Interest will be accrued at the South African prime lending rate + 2% on all amounts outstanding, longer than thirty days (30) from the date reflected on the invoice. Such interest will be calculated on a monthly basis, and all payments will be allocated first to interest, then to disbursements, and then to the oldest outstanding fee.
The Client acknowledges and accepts that the Firm may suspend the provision of the Services until such time that all amounts due are paid in full.
11.USE OF REPORTS AND OTHER DELIVERABLES
Any advice, report, certificate, schedule, or other deliverables are 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 deliverables may well not be relevant to any other party or at a different time and under different circumstances. The Firm 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.
Any such advice, report, certificate, schedule, or other deliverables 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.
Unless otherwise indicated in the advice, report, certificate, schedule, or other deliverables, copies or extracts therefrom may be made available to the addressee’s advisors provided they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule, or other deliverables and provided that the advisors are made aware of paragraphs 13 and 14.
Copies, in whole or in part, of the advice, report, certificate, schedule, or other deliverables or extracts therefrom may not be made available to any other party without the prior express written consent of the Firm, which consent may be given or withheld at the Firm’s absolute discretion.
The Client indemnifies and holds the Firm harmless against any claim by any third party arising from a copy of any report, certificate, schedule, or other deliverables or extract therefrom which the third party received from the Client or its advisors.
Only the final signed report, certificate, schedule, or other deliverables should be relied upon and acted upon. Oral communications and draft reports/certificates/other documents must be regarded as preliminary and intended only for discussion purposes.
12.RELIANCE ON THE CLIENT INFORMATION
The Services or any portion thereof is dependent on information supplied by the Client. The Firm shall be entitled to assume that all the data and information provided by the Client is accurate, reliable, and complete. The Firm 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 and/or incomplete and/or where the Client fails to disclose any relevant information to the Firm; and the Client indemnifies the Firm against any claims or expenses relating thereto.
13.LIMITATION OF LIABILITY
The Firm’s liability for non-assurance Services shall be limited as follows:
- The Firm remains responsible to the Client for all the Services under this Written Agreement, including Services that may be performed by a party subcontracted by the Firm. Accordingly, to the fullest extent possible under applicable law, the Firm will not have any liability to the Client and the Client will not bring, and will ensure that no other member of the Client group brings, any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or in connection with this Written Agreement against any of the Firm entities except the Firm.
- The maximum liability of the Firm, its partners, employees, and agents in respect of any and all claims which may arise in respect of the Services shall be limited to two times the fees charged for these Services individually (exclusive of VAT). This maximum liability shall be an aggregate liability for all claims howsoever arising, whether by contract, delict, negligence, or otherwise. This limitation will not apply where the Firm is guilty of willful misconduct or gross negligence. Where Services are rendered otherwise than in terms of a Written Agreement, this clause shall apply separately to Services relating to each invoice issued.
The Firm, 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 specified.
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.
The Firm will not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualties, strikes or labor disputes, wars or other violence, or cause through any law, order, or requirement of any governmental agency or authority.
Where the Services comprise forensic work or litigation support:
- The Client, in addition to the limitations indicated above, indemnifies the Firm 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 the Firm by any other party except the Client in connection with or arising out of such Services. This indemnification shall not apply in respect of wilful misconduct and/or gross negligence on the part of the Firm.
- The Firm 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 the Firm, regardless of whether or not such persons were introduced to the Client by the Firm, with the exception of subcontracted work.
14.TERMINATION
This Written Agreement may be terminated forthwith by the Client or the Firm in the event of either party going into liquidation or having commenced business rescue proceedings or similar judicial management proceedings instituted over all or part of its activities. Services may be terminated by either party giving 30 days’ notice.
In these circumstances, the Firm shall be entitled to raise an invoice for all legal fees in respect of fees and disbursements incurred up to such notice of termination is communicated and any further fees to collect outstanding monies.
In the event of either the Client or the Firm being in breach of any of the terms of the Written Agreement, 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 days of receipt of such notice, or if the breach is incapable of being remedied, the other party may in writing terminate the Written Agreement without prejudice to any of its rights in terms of this Written Agreement or in law.
The Firm shall be entitled to terminate this 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.LEGAL ADDRESSES
The Client and the Firm each choose the address set out opposite its name in the address clause of the Written Agreement as its legal address. Any notice to be given in terms of this Written Agreement shall be in writing and delivered to the legal address of the party concerned.
Written notice given in a correctly addressed envelope, delivered by hand to the chosen address of the party during ordinary business hours, shall be deemed to have been received on the day of delivery.
Either party may notify the other party in writing of any changes to its chosen address.
16.SEVERABILITY OF CLAUSES
If any provision or clause of this Written Agreement becomes invalid or unenforceable, such provision or clause shall be divisible and be regarded as pro non-scripto, and the remainder of this Written Agreement shall remain in force and be binding.
The failure of either party to insist upon the strict performance of any provision of this Written Agreement or to exercise any right, power, or remedy consequent upon a breach hereof shall not constitute a waiver by such party to require strict and punctual compliance with each and every provision of this Written Agreement.
