Terms of Business

Application of Terms of Business
These Terms of Business will apply whenever you engage with us and will govern our relationship, unless otherwise agreed in writing by a director of ASL.
Your acceptance and agreement to these terms will be assumed once you continue to engage with us.

Scope of Our Instructions
By instructing us, you authorise us to take the steps we consider appropriate to give effect to your instructions, including incurring reasonable expenses on your behalf.

Your Responsibilities
You will retain responsibility and accountability for:
a) The management, conduct and operation of your business and affairs;
b) Any representations made by you or the entity to third parties, including published information;
c) The establishment and maintenance of an internal control structure necessary to provide reasonable assurance that adopted policies and prescribed procedures are adhered to for the prevention of errors and irregularities, including fraud and illegal acts;
d) The maintenance of the accounting records that fairly represents the state of affairs and business of the entity;
e) The preparation of the annual financial statements which fairly present the financial position, results of operations and cash flows of the entity, including adequate disclosure in accordance with the relevant accounting framework;
f) The adjustment of the accounting records to correct misstatements that could possibly occur;
g) The selection and consistent application of accounting policies;
h) The safeguarding of assets;
i) The use of, extent of reliance on, or implementation of advice or recommendation supplied by us or other services;
j) The delivery, achievement or realization of any benefits directly or indirectly related to the services that require implementation by you;
k) Ensuring that all arrangements are made for access, security procedures, virus checks, facilities, licenses and/or consents (without any to us), where you require us to do so or the nature of the services is so that it is likely to be more efficient for us to perform work at your premises or use your computer systems or telephone networks;
l) Apprising us of all allegations involving financial improprieties received by management and the board, and providing timeously full access to us to these allegations and sources of allegations;
m) Informing us of all board, management and committee meetings, and all other meetings owners are entitled to attend. We are entitled to be heard at any such meeting on any matters that concern us as an independent service provider;
n) Providing us with access to all information of which management is aware that is relevant to our engagement;
o) Providing us with additional information that we may request for the purpose of our engagement; and
p) Providing us unrestricted access to persons within the entity from whom we determine it necessary to obtain evidence.

Any withholding of information could be considered as a limitation of the scope of our engagement and may prevent us from completing the engagement.
Any delay in providing us with the required information may affect our ability to comply with the agreed timetable.

Our Responsibilities
Our responsibilities are contained in the engagement letter pertaining to the respective service provided.

We will render invoices in respect of our services, comprising fees, disbursements and value added tax (“VAT”) thereon (where appropriate), together with any other foreign taxes (if applicable) (collectively referred to as “fees”) that might be payable thereon.

Our fees are based on the time spent on your affairs by our directors and staff, on the levels of skill and responsibility involved, the nature and complexity of the services and the resources required to complete the engagement.

Details of the rates for the persons involved in your work are available on request. These rates are exclusive of VAT and are reviewed on an annual basis.

Fees are calculated either:
(a) on an hourly basis at charge-out rates applicable to the person undertaking the work; or
(b) on an activity basis for taxation, company secretarial services or other services. These rates are available upon request.

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, which 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.

In return for the delivery of the services by us, you will be required to pay our fees, without any right of set-off, upon presentation of our invoice. In the event that you are not in agreement with any fee charged you will notify us in writing of your objection within 21 working days of receival of the invoice. Failure to do so will constitute acceptance of the fee. Approval of financial statements or minutes reflecting our fees will constitute acceptance of the fees.

Notwithstanding anything to the contrary contained herein, should our work-in-progress reach a level which we consider to be material, such accrued fees will become due and payable immediately upon presentation of our invoice, failing which, the rendering of all further professional services will be suspended pending receipt of payment.

Our fees will be subject to review by us on an annual basis and will vary due to a number of factors, including the availability, quality and completeness of financial information received, as well as the nature, extent and changes to business operations.

It is our usual practice to provide estimates of our fees in advance of the work commencing and we shall require payments on account as our work progresses.

If an instruction or other matter is aborted, subsequent to our commencement of initial work thereon, our fees will still be payable.

Estimates and Special Fee Arrangements
Our fee estimate is based on the assumption that the information we require is made available to us in accordance with the agreed timetables, and that key executives and personnel are available during the course of our work. If delay or any other problems beyond our control occurs, this may result in additional fees for which invoices will be raised on the above basis.

Estimates are given only as a guide, and should not be regarded as a firm quotation unless this is agreed in writing.

A special fee arrangement (such as a fixed or capped fee) agreed for a matter will not cover additional work not identified when the arrangement was agreed.

Estimates and special fee arrangements are provided exclusive of VAT and disbursements.

We will often incur expenses (“disbursements”) on your behalf in the course of a matter. These may include couriers, searches, registrations, transcripts, experts’, attorneys’ and other third party fees, travel, accommodation, telephone calls, faxes, document production and other expenses.

We are entitled to recover from you the cost or an amount in respect of disbursements incurred. With regards to certain disbursements of which the exact cost are impractical to determine (such as telephone, other communication charges, etc.), we will debit a charge not exceeding 2% of the value of the time spent on the matter.

We will normally obtain your approval before incurring any substantial disbursements. We may also require you to either provide us with sufficient funds to cover such disbursements or arrange for the person providing the services to invoice you direct. If we pay any such disbursements on your behalf, we will invoice you for them and payment will be due on delivery of the invoice.

If we have to incur additional expenses for staff working overtime on evenings or weekends in order to provide an effective and timeous service to you, we may charge you for such additional expenses.

ASL is registered as a VAT Vendor and consequently we are required by law to levy VAT on our fees charged. However, all fees quoted are exclusive of VAT. VAT charged will only be included in our invoice issued.

In the event that our invoices are not payable by you as our client but by a third party, you will remain liable for any VAT in respect of our charges.

Legal Advice
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. However, neither party should be liable in any way for failure to perform, or delay in performing, our respective obligations under the engagement if the failure or delay is caused outside reasonable control of the failing party.

Neither of us will have the right to assign the benefit or burden of the services contract without the written consent of the other.

We will have the right to appoint sub-contractors to assist us in delivering the services.

If we instruct lawyers or other professionals on your behalf, you will be their client and will be responsible for payment of their costs. If we pay the fees of any such lawyers or professionals, we will invoice you for them and payment will be due from you on delivery of the invoice.

Where any claim relates to services provided by any attorneys or other professionals, you agree that you will only direct such claim against the relevant attorneys or other professionals for whom we shall not be liable.

We reserve the right to issue an invoice when we incur or agree to pay disbursements on your behalf, or on completion of a transaction or other matter.

We are always prepared to discuss the amount of any invoice with you. If you have any questions you should, in the first instance, contact your client relationship manager or director in charge of your affairs.

Payment Terms

Payment to us is due on delivery of our invoice. If the invoice is not paid in full within one month, we reserve the right to charge interest on the outstanding amount of the invoice at a rate of 2% above the prime interest rate. Interest will accrue from one month after the date of delivery of the invoice to the date of payment.

If an invoice is overdue for payment, we may, upon giving reasonable notice, suspend or terminate our services to you (and others with whom you are associated) and retain documents and papers belonging to you. We may exercise these rights irrespective of the matter to which the work or documents and papers relate.

When we are instructed by or on behalf of more than one person or company to deal with any particular matter, each person or company for whom we act will be jointly and severally liable for payment of the full amount of our fees and disbursements.

If arrangements are made for a third party to pay any of our fees or disbursements, or a court orders a third party to pay any part of our costs, you remain liable to pay any charges to the extent that the third party does not pay our invoice in full.

Our policy is to initiate recovery proceedings in respect of overdue amounts unless alternative arrangements are approved. If it is necessary to initiate any such recovery proceedings, we are entitled to recover from you, on a full indemnity basis, all costs (including legal costs) and expenses incurred by us in doing so.

Payment on Account
In certain circumstances, we may require you to provide a payment to us on account of anticipated fees and disbursements. We are entitled to use money from the client account as payment for sums due from you. From time to time, we may ask you to replenish the account so that it does not fall below the required amount. Any funds in excess of our charges will be returned to you after the completion or termination of our services.

Unless otherwise stated, a payment on account is not an estimate or fixing of costs; our total costs in a matter may be greater than the payment on account.

We shall be entitled to insist that all amounts payable by you are made through a debit order on the terms and conditions stated in the proposal and you shall be obliged to execute and deliver such further instruments, contracts, forms and other documents (“additional documentation”) or perform such further acts as may be required for the purposes of securing such debit order/s, copies of which additional documentation shall have been made available to you prior to the date of signature thereof.

By signing the online debit order authorisation, you authorise us to recover the fees via the debit order. A debit order instruction will be deemed to be received by us when the communication is received on the relevant and applicable internet based portal. Your receipt of a copy of the signed debit order authorisation constitutes acknowledgement of our receipt of the instruction. Our acknowledgement of receipt will be deemed to have been received by you when the electronic communication sent by us leaves the relevant and applicable internet based portal. Furnishing of the copy of the signed debit order authorisation does not imply that we have accepted and/or implemented the instruction but merely serves as proof that we have received your instruction.

You agree that the physical, digital, electronic or similar records held by us of all instructions received via the relevant and applicable internet based portal will constitute prima facie evidence of the contents of the instruction. You confirm that we may accept signed instructions by electronic means. If you cancel the debit order authorisation, you must choose another payment method acceptable to us and notify us immediately. If you choose another payment method other than debit order, receipt of payment will be at your risk until we receive and process the payment.

Our staff members undergo periodic training and this, together with the taking of annual leave, may lead to staff turnover and lack of continuity. We will use our best endeavours to avoid any disruption to an engagement’s progress.

Save as envisaged below, you agree not to make any offer of employment or to otherwise interfere with or entice away from the employment of any persons employed by ASL. You further agree not to use such person’s services as an independent consultant or via a third party for a period of 12 months following the end of such person’s involvement, without the prior written consent of ASL.

Should you make any offer of employment to any person currently employed by ASL or who was employed by ASL for the immediately preceding 12 month period from the date of such offer of employment, you will be liable for and will pay to ASL a placement fee equal to 20% of such employee’s total annual cost to entity, excluding VAT.

Confidentiality and Conflicts
We are bound by strict confidentiality rules and, accordingly, we will treat any commercially sensitive information about your affairs as confidential (unless we are required to disclose any information by law or any regulatory authority).

We may share your personal information with the ASL group of companies (“the Group”) to the extent necessary or desirable to provide you with our services and to inform you of relevant news (such as firm-related announcements and forthcoming events) and legal developments. You may contact your client relationship manager or any director of ASL at any time to let us know if you do not wish to be provided with this information.

We may also use non-confidential details about our work for you for promotional purposes, unless you inform us otherwise. Our name and opinions may not be used in connection with any prospectus, financial statement or other public document or representation without our written consent.

Conflicts of interest may occasionally arise, for instance, where we discover information that is relevant to you while acting for other clients, but making a disclosure to you would conflict with our duty towards them. If we identify a conflict of interest we will notify you promptly. We may, however, be obliged to withhold the relevant information or terminate our engagement in relation to the particular matter (or both).

Electronic Communications
We may choose to communicate with you by electronic mail or internet where an authorised 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 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 hazards.

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 and to safeguard the security and confidentiality of the information transmitted, but we cannot guarantee that the transmission will be free of infection nor its security and confidentiality. We shall each be responsible for protecting our own systems and interests in relation to electronic communications and the entity and ASL (in each case including our respective partners/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.

The exclusion of liability in the previous clause shall not apply to the extent that any liability arises out of acts, omissions or misrepresentations which are in any case criminal, dishonest or fraudulent on the part of our respective partners/directors, employees, or agents.

If our communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects of electronic transmission, you should request a hard copy of such transmission from us. If you wish us to password protect all or certain documents transmitted, you may request us to do so.

E-mail and Fax
All our staff have access to e-mail and fax facilities and may, unless you instruct us to the contrary, send information by e-mail or fax.

Use of internet and e-mail carries certain risks. Confidentiality may be breached, messages may be lost or delayed, or may not be read and viruses may be transferred through the use of e-mail. We cannot accept responsibility for loss which you suffer as a result of the use of internet or e-mail for communication between us, or between us and third parties.

We suggest that, when sending a time critical e-mail or fax to us, kindly telephone to ensure the intended recipient is aware that a message has been sent.

If you have any doubts about the authenticity of any communication or document that appears to have been sent by us, please contact us immediately.

If you do not wish us to communicate information to you by e-mail or fax, or if you wish to establish a more secure electronic communications link, please inform the director with whom you usually deal.

Use of the Software of ASL
We may develop software, including spread sheets, documents, databases and other electronic tools to assist us with our assignment. In some cases, these aids may be provided to you upon request. As these tools were developed specifically for our purposes and without consideration of any purpose for which you might use them, they are made available on an “as is” basis for your use only and should not be distributed to or shared with any third party. Further, we make no representations or warranties as to the sufficiency or appropriateness of the software tools for any purpose for which you may use them. Any software tools developed specifically for you will be covered under a separate engagement letter.

Ownership and Access to Inspect Files
The working papers and files for this engagement created by us during the course of the engagement, including electronic documents and files, are the sole property of ASL and you have no right to access them. We may decide in our own sole discretion to grant access to you to our working papers, should you wish to.

We have set quality control policies for the retention of documentation, after which time we will commence the process of destroying the contents of our engagement files. To the extent we accumulate any of your original records during the engagement, those documents will be returned to you promptly upon completion of the engagement.

We will retain ownership of the copyright and all other intellectual property rights in the product of the services, whether oral or tangible, including written advice, methodologies, software, systems know-how and working papers. For the purposes of delivering services to you or other clients, 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 our services. If you wish to distribute copies of any of these materials, this will require our prior written permission.

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 reference purposes, we will obtain your permission in advance.

Distribution of Information to, and Rights of Third Parties
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:
a) Disclosure by them (save for their own internal purposes) is not permitted without our prior written consent; and
b) We accept no responsibility or liability whatsoever and neither do we owe any duty of care to them in connection with the services.

The service contract will not create or give rise to, nor will it be intended to create or give rise to any third party rights.

Our report(s) is intended for the benefit of those to whom it is addressed. The engagement will not be planned or conducted in contemplation of reliance by any third party or with respect to any specific transaction. Therefore, items of possible interest to a third party will not be specifically addressed and matters may exist that would be assessed differently by a third party, possible in connection with a specific transaction.

Any contractual arrangements between you and a third party which seek to impose such requirements upon us will not, as a matter of law, be binding on us. You agree that you will not seek us to commit to providing reports to third parties unless we have consented to do so in advance. We may decline to provide reports to third parties, save for reports required by law or regulations. We will stipulate the terms upon which those reports will be provided should we agree to provide such reports in a capacity other than being your independent service provider. You will assist us in agreeing the terms upon which we will report to third parties. Any such possible requirements must be discussed with us at the earliest opportunity and well before the third party arrangement is finalized.

Where we agree to provide reports to third parties, it remains the entity's responsibility to provide us with copies of the relevant contract documents and with any further information or explanations we may require, enabling us to prepare our report.

We will not, in giving our report, accept or assume responsibility (legal or otherwise) or accept liability for or in connection with any other purpose for which our report may be used, or to any other person to whom our report is shown or into whose hands it may come, and no other persons shall be entitled to rely on our report save where they have obtained our prior written consent that they may do so. If we have to accept responsibility to the third party, we will require their acceptance of limitation of liability as a condition of providing a report to them and reserve the right to charge additional fees.

You will indemnify the ASL contracting party and any ASL persons 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
a) Any breach by you of your obligations under the service contract; and
b) Any claim made by a third party or any other beneficiaries which results from or arises from or is connected to any such breach.

Feedback and Complaints Procedure
We are committed to continuous improvement in the quality of our services. We encourage suggestions or comments from you in helping to achieve this goal. If you would like to discuss ways in which our services could be improved or if you are dissatisfied with any aspect of the services you are receiving from us, please contact your client relationship manager or any director.

Termination of Our Engagement
Our engagement may be terminated at any time by any party, by giving reasonable written notice.
We may cease to act for you on any matter by giving you reasonable written notice if:
a) you fail to give us proper instructions;
b) you fail to give us the co-operation which we are reasonably entitled to expect;
c) our continuing to act would be impractical, unethical or unlawful;
d) we have a conflict of interest;
e) you fail to provide us (or to replenish) sufficient money to be held on account; or
f) you fail to pay our invoices as and when rendered.

On termination by either party:
a) you are liable to pay our charges for work carried out up to the date of termination; and
b) we may keep all the papers that we are entitled to retain until all of our costs, disbursements and interest have been paid.

Limitation of Liability
Save for any exclusions provided for in Section 46 of the APA the maximum liability of ASL or any individual partner/director, member or employee, as the case may be, of the ASL contracting party in respect of direct economic loss or damage suffered by you or by other beneficiaries arising out of or in connection with the services shall be limited to two times the fees charged and paid for these services. 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 engagement letter, the liability to you and to other beneficiaries of each and all ASL persons in contract or delict or under Memorandum of Incorporation 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 willful misconduct, shall be excluded to the extent that such limitation is permitted by law.

Our liability to you will in no circumstances exceed the lower of the amount determined by the application of the monetary limit based upon fees charged to, and recovered from, you and the amount determined by the apportionment of responsibility, as the case may be.

You and other beneficiaries may not bring any claim personally against any individual partner/director, member, employee or agent, as the case may be, of the ASL contracting party 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. You agree that any claim of any sort whatsoever arising out of or in connection with this engagement shall be brought only against ASL. This restriction shall not operate to limit or exclude the liability of the ASL contracting party for the acts or omissions of its partners, directors, members, 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.

Document Storage
We usually keep files and papers relating to client matters for a minimum of five years from the date we cease to work on that matter, after which we may dispose of them (other than title documents, deeds and certificates) as we reasonably consider appropriate.

Some documents that come into our possession may belong to you. We will normally return these documents (and title documents, deeds and certificates) at the earliest opportunity, subject to our right to retain possession as security for payment of sums owed to us by you. However, it is likely that, over a period of time, less important records that are your property will be filed with our own papers. Unless you previously request us to return them to you, we will destroy any papers that, in our opinion, do not warrant retention at the time that we destroy the other papers relating to your work.

We may also without your specific consent transfer paper files to electronic or other reduced format insofar as permitted by law and applicable professional rules to do so.

Circumstances beyond our and 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 services contract 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 services contract on notice, which notice will take effect immediately on delivery thereof.

Interpretation and Law
These terms are governed by South African law and any disputes arising in connection with these terms or our services are subject to the non- exclusive jurisdiction of the South African courts.

References in these standard terms to “we” and “us” are to each relevant individual, entity or partnership forming part of the Group.

These standard terms apply except to the extent that they are varied in writing by a director of ASL.

All work done and advice provided by us is for your use and benefit only and may not be supplied or passed on to any other person without our prior written approval. Our duty of care is to you as our client, not to third parties (or any parties associated with you) unless such responsibility is accepted by us in writing.

If instructions are given by more than one person or company, we may choose to treat any one or more of those parties as our client; this includes situations where one person or company instructs the firm on behalf of another party.

When your instructions on a matter are completed, our representation will end. We will only advise you further on issues arising from the matter (e.g. implementation and other dates or changes in relevant law or regulation) if you specifically engage us to do so.

If at any time the practice of this firm is transferred to a successor firm (including a company or limited liability partnership) all work on which we have been instructed by you may be carried out by the successor firm and references to “we” and “us” in these standard terms will from the date of the transfer be interpreted as references to the successor firm.
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