1. GENERAL
    1. This document is a record of the standard terms of engagement (“Agreement”) applicable to your contractual relationship with Alternative Prosperity Holdings (Pty) Ltd (“our company, “we”, “the contractor” or “Alternative Prosperity”). We present it to you to avoid any misunderstandings or ambiguity regarding the basis upon which we have accepted your mandate.
    2. Should any of the terms recorded herein be unclear or unacceptable, you are requested to notify us. In the absence of any such notification, we shall assume that the terms and conditions as set out below are accepted by you.
    3. This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto shall be determined in accordance with such laws.
    4. The parties agree that the relationship between them is one of commissioner and independent contractor, and nothing in this Agreement shall be construed as giving rise to a relationship of employer and employee, whether between contractor and customer or between the customer and any officer, employee or agent of the contractor.
  2. FEES AND DISBURSEMENTS
    1. We may provide you with a fixed quotation for fees and disbursements, or a cost estimate when we undertake the work. If a cost estimate is given, it must be noted that it is an estimate only and does not constitute a quote, and we reserve the right to debit full fees and disbursements irrespective of any lesser cost estimate given to you in relation to the matter. Should the fees and/or disbursements exceed 10% (ten percent) of the quoted amount, we will first notify you and obtain your consent before incurring such costs, pursuant to Clause 2.2. below.
    2. Should you wish to limit your exposure to costs in any particular matter, you may instruct us in writing to notify you as soon as the fees and disbursements reach the limit imposed. At this point,
    3. Unless otherwise agreed with you, we may debit interim fees at regular intervals. Please note therefore that debiting of fees will take place not only at the completion of a particular matter.
    4. All disbursements on your behalf will be debited and invoiced to you as and when such disbursements are incurred.
    5. Invoices for fees and disbursements are payable on presentation unless otherwise agreed. Interest will be debited on all amounts not settled within 30 (THIRTY) days of the date of invoice at a rate equal to the prime overdraft lending rate of our bankers from time to time.
    6. In instances where you may have agreed with a contracting party that such party shall be responsible for payment of our fees and disbursements pertaining to a particular matter, you, as our instructing client, will nevertheless remain liable for our fees and disbursements. Any initial accommodation on our part to invoice such other contracting party for the fees and disbursements, will not detract from your obligations to settle the relevant account with our company in the event of non-payment by the other party.
    7. It is our policy to ensure that our clients are fully informed at all times of all aspects pertaining to the finances of their matters. You are welcome at any stage to direct queries in this regard (or relating thereto) to the person dealing with your matter.
  3. DISCLAIMER: B-BBEE FRONTING
    1. Any report or advice provided to you by Alternative Prosperity, in whatever form, is based on the following terms and conditions relating to B-BBEE fronting (the statutory definition of B-BBEE fronting is quoted in par 3.1.5 below):
      1. We do not support and will not assist with B-BBEE fronting or misrepresentation in any form.
      2. We provide our services on the condition that you will not use or allow the use of any report or advice which we provide directly or indirectly for the purposes of B-BBEE fronting.
      3. We support anti-B-BBEE-fronting measures.
      4. Should you act in breach of these terms and conditions relating to B-BBEE fronting, you will be liable to Alternative Prosperity in terms of the indemnity as set out in par 11.4 below.
      5. The definition of B-BBEE fronting in the Broad-Based Black Economic Empowerment Act 46 of 2013 is as follows: “’fronting practice’ means a transaction, arrangement or other act or conduct that directly or indirectly undermines or frustrates the achievement of the objectives of this Act or the implementation of any of the provisions of this Act, including but not limited to practices in connection with a B-BBEE initiative –
        1. in terms of which black persons who are appointed to an enterprise are discouraged or inhibited from substantially participating in the core activities of that enterprise;
        2. in terms of which the economic benefits received as a result of the broad-based black economic empowerment status of an enterprise do not flow to black people in the ratio specified in the relevant legal documentation;
        3. involving the conclusion of a legal relationship with a black person for the purpose of that enterprise achieving a certain level of broad-based black economic empowerment compliance without granting that black person the economic benefits that would
        4. reasonably be expected to be associated with the status or position held by that black person; or involving the conclusion of an agreement with another enterprise in order to achieve or enhance broad-based black economic empowerment status in circumstances in which –
          1. there are significant limitations, whether implicit or explicit, on the identity of suppliers, service providers, clients or customers;
          2. the maintenance of business operations is reasonably considered to be improbable, having regard to the resources available;
          3. the terms and conditions were not negotiated at arm’s length and on a fair and reasonable basis.”
  4. PROTECTION OF PERSONAL INFORMATION
    1. Your organisation supplies the contractor with the necessary data (including Personal Information) for the fulfilment of the contractor’s obligations in terms of this Agreement. If the supplied data contains Personal Information, the contractor must comply with the provisions of this clause when dealing with the Personal Information
    2. The contractor must only Process the Personal Information to fulfil its obligations under this Agreement or on express written instructions of your organisation.
    3. The contractor must not use the Personal Information other than for the purposes for which it was provided by or on behalf of your organisation and in accordance with this Agreement.
    4. The contractor must treat the Personal Information as strictly confidential by, among other things:
      1. restricting access to the Personal Information only to those persons (employees, agents, subcontractors, consultants and service providers) of the contractor and your organisation who have a need or are required to have access to the Personal Information;
      2. ensuring that the persons (employees, agents, subcontractors, consultants and service providers) authorised to Process the Personal Information have committed themselves to confidentiality and, where applicable, they are bound by the applicable statutory or professional obligation of confidentiality.
    5. The contractor must establish and maintain appropriate information security measures to secure the integrity and confidentiality of Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent:
      1. loss of, damage to or unauthorised destruction of Personal Information; and
      2. unlawful access to or Processing of Personal Information.
    6. The contractor must not engage another operator or third party to process the Personal Information on its behalf without the express written permission of your organisation. Where the contractor intends to engage another operator or third party, it must ensure that the protection of Personal Information obligations set out in this Agreement and in the Protection of Personal Information Act are imposed on that other operator or third party by way of a binding agreement, and in a manner that provides sufficient guarantees to implement appropriate technical measures in order that the Processing will meet the requirements set out in the Protection of Personal Information Act, and will ensure protection of the privacy rights of the Data Subjects.
    7. The contractor must not transfer or share the Personal Information to or with a third party or recipient who is situated outside of the Republic of South Africa, unless it is satisfied that such third party or recipient is subject to a law, binding corporate rules or the binding agreement that provide an equivalent or adequate level of protection as set in the Protection of Personal Information Act, or has committed to uphold the conditions for the lawful processing of Personal Information set out in the Protection of Personal Information Act.
    8. Given the nature of the Processing activities, the contractor must implement appropriate technical and organisational measures, in so far as it is reasonably practicable, to assist your organisation in the fulfilment of its obligations to:
      1. notify the Information Regulator and the affected Data Subjects where there are reasonable grounds to believe that the Personal Information has been accessed or acquired by an unauthorised person;
      2. allow access to Personal Information by the relevant Data Subjects;
      3. correct or delete Personal Information that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully;
      4. delete or destroy a record of Personal Information that your organisation is no longer authorised to keep.
    9. The contractor must co-operate with any reasonable request by your organisation to enable your organisation to comply, or to assist it in complying, with its obligations under any applicable legislation and/or to comply with court orders.
    10. Subject to any contrary legislative requirements that may be applicable, the contractor must, on request by your organisation, delete or return all records of Personal Information in its possession or under its control upon the termination of this Agreement. For these purposes, the contractor must implement appropriate technical and organisational measures, in so far as it is reasonably practicable, to facilitate the transfer or migration of records of Personal Information from the contractor to your organisation or a third party nominated your organisation when this Agreement terminates.
    11. The contractor must, when requested, provide your organisation with all the necessary information to demonstrate compliance with its obligations under this Agreement, and to assist and cooperate in any audits or inspections by or on behalf of your organisation in order to confirm such compliance.
    12. For the purposes of this clause 4:
      1. “Data Subject” means the person to whom the Personal Information relates.
      2. “Personal Information” means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to — (a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person; (b)  information relating to the education or the medical, financial, criminal or employment history of the person; (c) any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person; (d) the biometric information of the person; (e) the personal opinions, views or preferences of the person; (f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; (g) the views or opinions of another individual about the person; and (h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
      3. “Processing” means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including — (a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use; (b) dissemination by means of transmission, distribution or making available in any other form; or (c) merging, linking, as well as restriction, degradation, erasure or destruction of information.
      4. “Protection of Personal Information Act” means the Protection of Personal Information Act 4 of 2013 (enacted in the Republic of South Africa).
  5. CONFIDENTIALITY
    1. We deal with client matters confidentially and do not share information between clients. Alternative Prosperity complies with the Protection of Personal Information Act and requires all third parties, as defined in the Act, to confirm their compliance accordingly.
    2. Each party acknowledges that all material and information which has or will come into its possession or knowledge in connection with this Agreement, or the performance hereof, consists of confidential and proprietary data, whose disclosure to or use by third parties will be damaging to the other of them.
    3. Both parties, therefore, agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of this Agreement, to release it only to employees reasonably requiring such information, and not to release or disclose it to any other party, unless required by law or with the written permission of the other party.
    4. Confidential and proprietary information is not meant to include any information which, at the time of disclosure, is generally known by the public and any competitors of either party.
    5. The parties’ obligations of confidentiality under this Agreement shall survive the termination of this Agreement for any reason whatsoever.
  6. COPYRIGHT
    1. We retain intellectual property rights to the deliverables until such time you make payment in respect of such deliverables in full, upon which we will agree to assign all rights and title in and to such intellectual property rights to you on request and to do all such things as are necessary to give effect to this clause.
  7. RECORDS
    1. All documentation relating to matters handled by Alternative Prosperity will be kept electronically, and in some instances as paper copy, in accordance with par 4 above.
    2. All data will be destroyed in accordance with the stipulations of the Protection of Personal Information Act unless exemptions apply.
    3. Should we be requested to retrieve documentation relating to a finalised matter we reserve the right to charge a reasonable administration fee for such retrieval.
  8. NO SOLICITATION
    1. Both parties undertake that they will not during the term of this Agreement and for a period of 12 (twelve) months after the termination thereof for any reason, directly or indirectly employ or persuade, induce, encourage or procure any employee of the other, or any person who was an employee of the other during the previous 12 (twelve) months, to become employed by or through them or to terminate his or her employment with the other or any of its subsidiaries.
    2. The provisions of clause 8.1 do not prohibit either of the parties from giving consideration to any application for employment submitted on an unsolicited basis or response to a general advertisement of employment opportunities.
    3. The parties may agree in writing to waive the provisions of this clause 8 in respect of one or more individuals.
  9. TERMINATION OF MANDATE
    1. Unless otherwise agreed, you are entitled to terminate our mandate at any time.
    2. In the event of termination of our mandate, you are entitled to delivery of all documentation relating to the matter against payment of all fees and disbursements due to our company to date of termination.
  10. BREACH
    1. Should a party be in breach of any of its obligations under this Agreement (‘the Offending Party’), the other party (‘the Aggrieved Party’) must give written notice of such breach, requesting the Offending Party to rectify the breach within 5 (five) business days.
    2. Should the Offending Party fail to rectify the breach within the time period stipulated, it must give the other Aggrieved Party reasons for its failure and the parties must immediately meet to discuss and agree on the mechanisms of rectifying the breach.
    3. Should the parties fail to agree on the mechanisms of rectifying the breach or should such breach persist for more than 10 (ten) consecutive business days calculated from the date of the written notice from the Aggrieved Party, the Aggrieved Party may immediately terminate the Agreement.
  11. LIMITATION OF LIABILITY
    1. The maximum liability of Alternative Prosperity for all claims arising out of the execution of our mandate shall be limited to R5,000,000. 00 (five million). Such limitation shall not apply in the instance of willful misconduct or gross negligence by Alternative Prosperity. This maximum liability shall be an aggregate liability for all claims from whatever source and howsoever arising, whether in contract, delict or otherwise. This maximum liability is further subject to the following waivers and indemnity:
    2. You waive any claim of whatsoever nature (including damage, loss, interest, costs, expenses or otherwise (not limited ejusdem generis) which you may have against Alternative Prosperity (and its successors in practice) beyond the amount actually recovered by it under its professional indemnity insurance policy in respect of your claim. Alternative Prosperity undertakes to ensure that professional indemnity insurance is in place to cover such claim/s and that such professional indemnity insurance will be sufficient to cover your claim/s.
    3. You waive any claim of whatsoever nature (including but not limited to damages, loss, interest, costs, expenses or otherwise (not limited ejusdem generis)), howsoever arising whether in contract or in delict or under section 19(3) of the Companies Act, 2008 (as amended or substituted) or otherwise, which you may have against any of the partners, directors, past directors or employees of Alternative Prosperity and its successors in practice (in whose favour, this constitutes a stipulatio alteri capable of acceptance at any time), by reason of any negligent act or omission on the part of any director, past director or employee.
    4. You indemnify Alternative Prosperity (and its successors in practice), its partners, directors, past directors and employees (in whose favour, where applicable, this constitutes a stipulatio alteri capable of acceptance at any time) against any claim of whatsoever nature (including but not limited to damages, loss, interest, costs, expenses or otherwise (not limited ejusdem generis)) howsoever arising whether in contract or in delict or under section 19(3) of the Companies Act, 2008 (as amended or substituted) or otherwise, that may be made against it/them by any third party as a result of any report or advice by Alternative Prosperity and any of its partners, directors, past directors or employees for you or on your behalf. This indemnity applies generally and in particular if such claim arises from the fact that you use or allow the use of any report or advice which we provide directly or indirectly for the purposes of B-BBEE fronting.
    5. You shall not be entitled for any reason whatsoever to withhold payment of any fees, disbursements or costs incurred by or owing to Alternative Prosperity whether it incurred any such disbursements or costs in your name or in the name of Alternative Prosperity.
    6. Alternative Prosperity shall not be liable for any loss, damage, costs or expenses directly or indirectly incurred as a result of information supplied by or misrepresentations, negligent or dishonest acts or omissions on your part or on the part of any of your employees or agents. This exclusion of liability applies generally and in particular if such loss, damage, costs or expenses arises from the fact that you use or allow the use of any report or advice which we provide directly or indirectly for the purposes of B-BBEE fronting.
    7. The exclusion of liability in this clause 11 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 this company’s partners, directors, employees, or agents.
    8. In determining the liability of our company for purposes of any action in contract in terms of this paragraph, a court or arbitrator shall limit such liability by having regard to the contribution to the loss or damage in question of all the parties concerned, based upon relative degrees of fault; it being agreed that the provisions of Section 1 of the Apportionment of Damages Act, 1956 will apply to all claims between you and this company, and that reference in this document to the terms “dishonest” and “negligence” on the one hand and “damages” or “losses” on the other shall fall within the meanings of “fault” and “damage” respectively as contained in Section 1 of the Apportionment of Damages Act, 1956.