STANDARD TERMS AND CONDITIONS
1.GENERAL
1.1.This document is a record of the standard terms of engagement (“Terms and Conditions”) 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. These Terms and Conditions are provided to ensure clarity regarding the basis upon which you may access and use this website and its content.
1.2.For purposes of these Terms and Conditions, any reference to “Alternative Prosperity” shall include each of its subsidiaries, divisions, business units, associated entities and affiliates from time to time (together, the “Alternative Prosperity Group”), provided that these Terms and Conditions do not apply to any engagement which is governed by separate standard terms and conditions agreed between you and a member of the Alternative Prosperity Group. Where an engagement is governed by such separate terms, those terms apply to that engagement to the exclusion of these Terms and Conditions. If any provision of those separate terms conflicts with a provision of these Terms and Conditions, the provision of the separate terms shall prevail.
1.3.Should any of the terms recorded herein be unclear or unacceptable, you are requested to notify Alternative Prosperity before making use of the services or continuing to access or use the website. By signing an engagement letter, accepting a quotation or proposal or otherwise expressly accepting these Terms and Conditions, or after having been given a reasonable opportunity to review these Terms and Conditions (where applicable), you will be deemed to have accepted and agreed to be bound by these Terms and Conditions.
1.4.By accessing or using this website or any of the services provided by the contractor, you acknowledge that you have read, understood and agree to be bound by these Terms and Conditions, as amended from time to time.
1.5.The Terms and Conditions 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.
1.6.The parties agree that the relationship between them is one of commissioner and independent contractor, and nothing in these Terms and Conditions 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.
1.7.The contractor reserves the right to amend these Terms and Conditions in its sole discretion at any time and in the manner of its choosing. This includes the right to change, modify, add or remove portions or the whole of these Terms and Conditions. The amended Terms and Conditions shall become effective immediately upon posting thereof to the website of the contractor and shall automatically bind you without further notice, provided that this clause 1.7 applies only to your access to and use of the website. No amendment to the terms governing an existing engagement or mandate already accepted by you shall be of any force or effect unless agreed to in writing between yourself and a member of the Alternative Prosperity Group.
2.FEES AND DISBURSEMENTS
2.1.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. A cost estimate is provided solely for budgeting purposes and represents the contractor’s reasonable estimate of the anticipated costs based on the information available at the time it is prepared. A cost estimate does not constitute a fixed quotation, guarantee, representation or undertaking that the final fees and disbursements will not exceed the estimated amount. The actual fees and disbursements may vary depending on, amongst other things, the complexity of the matter, the volume of documentation, the time spent, the conduct of third parties, changes to your instructions, unforeseen circumstances, urgency, or any additional work required to complete the mandate. 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.
2.2.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.
2.3.Unless otherwise agreed with you, in writing, it is agreed that the contractor may debit interim invoices for our professional fees at regular intervals indicating all amounts due and owing by you during such intervals (including professional fees, taxes, duties and other relevant costs). Please note therefore that debiting of fees will take place not only at the completion of a particular matter. You acknowledge and agree that the contractor is not obliged to defer the rendering of invoices until the completion or finalisation of the matter. The rendering of interim invoices shall not be construed as confirmation that the matter has been completed, nor shall it prejudice the contractor’s right to render one or more further invoices, including a final invoice, in respect of any outstanding professional fees, disbursements or other amounts due.
2.4.All disbursements on your behalf will be debited and invoiced to you as and when such disbursements are incurred. The contractor reserves the right to recover all reasonable disbursements incurred on your behalf, irrespective of whether the matter is subsequently completed, suspended, withdrawn or terminated before finalisation. For the purposes of these Terms and Conditions, the term “disbursements” include, without limitation, counsel’s fees, advocate’s fees, correspondent attorneys’ fees, sheriff’s fees, court fees, filing fees, registration fees, search fees, travel and accommodation expenses, courier and postage charges, photocopying, printing and binding costs, electronic research charges, transcription fees, notarial fees, translation costs, expert witness fees, consultant fees, bank charges, electronic payment costs, and any other reasonable third-party expenses incurred by the contractor in connection with your matter.
2.5.Invoices for fees and disbursements are due and payable by you immediately upon presentation, unless otherwise agreed in writing. The contractor does not provide credit facilities and nothing in these Terms and Conditions shall be interpreted as an agreement to defer payment or to extend credit. If any amount remains unpaid for more than 30 (thirty) days from the date of invoice, the contractor reserves the right, at its sole discretion, to charge interest on the overdue amount only to the extent permitted by applicable law.
2.6.In instances where you may have agreed with a third party that such third party shall be responsible for payment of our fees and disbursements pertaining to a particular matter or instruction, you as our instructing client, will remain solely liable for our fees and disbursements. Any accommodation on our part to invoice such other third party for any fees and disbursements upon your request, will not detract from your obligations to settle the relevant account with Alternative Prosperity in the event of non-payment by the third party.
2.7.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 representative of Alternative Prosperity dealing with your matter.
2.8.In the event that you dispute any invoice, or any portion thereof, in good faith you shall notify Alternative Prosperity in writing within 10 (ten) calendar days of the date of the invoice, setting out in reasonable detail the nature and grounds of the dispute. Failing such written notice within the prescribed period, the invoice shall, to the fullest extent permitted by law, be deemed to have been accepted as correct and payable. The existence of a dispute in relation to any invoice, or any portion thereof, shall not entitle you to withhold payment of any undisputed amount. You shall pay all undisputed amounts by the applicable due date, and only the disputed portion of the invoice may be withheld pending resolution of the dispute.
3.DISCLAIMER: B-BBEE FRONTING
3.1.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 clause 3.1.5 below):
3.1.1.We do not support and will not assist with B-BBEE fronting or misrepresentation in any form.
3.1.2.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.
3.1.3.We support anti-B-BBEE-fronting measures.
3.1.4.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 clause 12.1.3 below.
3.1.5.The definition of B-BBEE fronting in the Broad-Based Black Economic Empowerment Act 53 of 2003, as amended by the Broad-Based Black Economic Empowerment Amendment Act 46 of 2013, as amended from time to time, 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 –”
3.1.5.1.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;
3.1.5.2.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;
3.1.5.3.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 reasonably be expected to be associated with the status or position held by that black person; or
3.1.5.4.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 –
3.1.5.4.1.there are significant limitations, whether implicit or explicit, on the identity of suppliers, service providers, clients or customers;
3.1.5.4.2.the maintenance of business operations is reasonably considered to be improbable, having regard to the resources available;
3.1.5.4.3.the terms and conditions were not negotiated at arm’s length and on a fair and reasonable basis.”
4.PROTECTION OF PERSONAL INFORMATION
4.1.For purposes of this clause 4 the terms “Personal Information”, “Data Subject”, “Information Regulator” and “Processing” shall have the definitions afforded thereto in terms of the Protection of Personal Information Act 4 of 2013, as amended (“POPI Act”).
4.2.Your organisation supplies the contractor with the necessary data (including Personal Information) for the fulfilment of the contractor’s obligations. If the supplied data contains Personal Information, the contractor must comply with the provisions of this clause when dealing with the Personal Information to the extent required in terms of the “POPI Act”).
4.3.The contractor must only Process the Personal Information to fulfil its obligations under the Terms and Conditions or on express written instructions of your organisation.
4.4.Subject to the provisions contained in this clause 4 and to clauses 4.15 and 5.8, 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 these Terms and Conditions.
4.5.The contractor must treat the Personal Information as strictly confidential by, among other things:
4.5.1.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;
4.5.2.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.
4.6.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:
4.6.1.loss of, damage to or unauthorised destruction of Personal Information; and
4.6.2.unlawful access to or Processing of Personal Information.
4.7.By making use of the contractor’s services, you acknowledge, accept, and consent to the contractor appointing third-party operators, agents, or service providers in the ordinary course of business, where necessary for the provision of such services and in compliance with all applicable laws and regulations. This clause 4.7 shall apply mutatis mutandis for any operator appointments by the contractor, where relevant.
4.8.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 POPI Act, or has committed to uphold the conditions for the lawful processing of Personal Information set out in the POPI Act.
4.9.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:
4.9.1.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;
4.9.2.allow access to Personal Information by the relevant Data Subjects;
4.9.3.correct or delete Personal Information that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully;
4.9.4.delete or destroy a record of Personal Information that your organisation is no longer authorised to keep.
4.10.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.
4.11.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 these Terms and Conditions.
4.12.The contractor must, when requested, provide your organisation with all the necessary information to demonstrate compliance with its obligations under these Terms and Conditions, and to assist and cooperate in any audits or inspections by or on behalf of your organisation in order to confirm such compliance.
4.13.Where the contractor collects and processes Personal Information in its own capacity as the Responsible Party (as defined the POPI Act), including but not limited to customer due diligence and verification information required for FICA/KYC compliance, website visitor information, enquiries, and business relationship management, such Personal Information will be processed only for specified, explicit and lawful purposes. The lawful basis for such processing shall include compliance with legal obligations, the performance of a contract, the pursuit of the contractor’s legitimate business interests, and/or the consent of the Data Subject where required by applicable law.
4.14.The contractor shall retain such Personal Information only for as long as necessary to fulfil the purpose for which it was collected, to comply with applicable legal, regulatory, tax, accounting and record-keeping requirements, or to establish, exercise or defend legal rights. Thereafter, the Personal Information will be securely destroyed, deleted, anonymised or de-identified in accordance with the contractor’s retention policies and applicable law.
4.15.You consent to Alternative Prosperity disclosing Personal Information to any member of the Alternative Prosperity Group, and to any such member Processing that Personal Information on the contractor’s behalf as operator, for the purposes recorded in clause 5.8, provided that the contractor procures that each such member is bound by written obligations which give effect to the requirements of the POPI Act.
5.CONFIDENTIALITY
5.1.Subject to clauses 5.8 and 5.9, we deal with client matters confidentially and do not share the Confidential Information (as defined in clause 5.2 below) of one client with another client. Alternative Prosperity complies with the POPI Act and requires all third parties, as defined in the Act, to confirm their compliance accordingly.
5.2.Each party acknowledges that, in the course of negotiating, concluding and performing any mandate or contractual obligation, it may obtain or have access to confidential, proprietary or commercially sensitive information belonging to the other party, including but not limited to business information, financial information, trade secrets, intellectual property, technical information, software, databases, business methods, strategies, client information, pricing structures, contractual arrangements, Personal Information (as defined in the POPI Act), and any other information disclosed in written, electronic, visual or oral form that is confidential by its nature or is designated as confidential (“Confidential Information”). Each party acknowledges that all material and information which has or will come into its possession or knowledge in connection with these Terms and Conditions, 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.
5.3.Both parties, therefore, agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of these Terms and Conditions 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.
5.4.In addition to clause 5.3 above, each party undertakes to –
5.4.1.not copy, reproduce, distribute, publish, exploit, reverse engineer or otherwise use the Confidential Information except to the extent reasonably necessary for the performance of these Terms and Conditions;
5.4.2.promptly notify the other party upon becoming aware of any unauthorised access to, disclosure of or use of the Confidential Information and cooperate fully in mitigating any resulting harm; and
5.4.3.comply with all applicable legislation relating to confidentiality, privacy and the protection of personal information, including the POPI Act.
5.5.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.
5.6.For avoidance of doubt, it is recorded that this clause 5 shall not apply to information which the receiving party can demonstrate:
5.6.1.was lawfully in its possession before disclosure by the disclosing party;
5.6.2.is or becomes publicly available other than through a breach of the Terms and Conditions or any unlawful act or omission of the receiving party;
5.6.3.was lawfully obtained from a third party without any obligation of confidentiality;
5.6.4.was independently developed by the receiving party without reference to or use of the Confidential Information; or
5.6.5.is required to be disclosed pursuant to any applicable law, regulation, court order or lawful request by a governmental, regulatory or professional authority, provided that, where legally permissible, the receiving party shall give the disclosing party prompt written notice of such requirement and shall disclose only the minimum information legally required.
5.7.The parties’ obligations of confidentiality under these Terms and Conditions shall survive the termination of these Terms and Conditions for any reason whatsoever.
5.8.You acknowledge that the methodologies, market intelligence, models and other intellectual assets applied in performing our mandate are developed, held and maintained on a group basis. Notwithstanding anything to the contrary in these Terms and Conditions, we may disclose your Confidential Information to any member of the Alternative Prosperity Group, and to the directors, officers, employees, contractors and professional advisors of any such member, where such disclosure is reasonably required for the purposes of (a) performing our mandate, including drawing on specialist resources within the Alternative Prosperity Group; (b) quality assurance, technical review, supervision, peer review and risk management; (c) internal group reporting, governance, insurance and audit; and (d) the development, maintenance, refinement and application of the Alternative Prosperity Group’s methodologies, models, knowledge base and other intellectual assets, provided that we procure that each such recipient is bound by obligations of confidentiality no less onerous than those recorded in this clause 5, and we remain responsible to you for any breach of those obligations by such recipient.
5.9.The members of the Alternative Prosperity Group may use information derived from the mandate in anonymised and aggregated form, from which you are not reasonably identifiable, for the purposes of benchmarking, research, model development, product development and market commentary.
6.USE OF ARTIFICIAL INTELLIGENCE (AI) TOOLS
6.1.Some material we use in our services is created with the support of AI-assisted analysis. Any insights or text produced by an AI system are subsequently reviewed and edited by human consultants for accuracy, context, and tone. The contractor remains fully responsible for the deliverables’ content, and all final interpretations and advice are those of our company’s experts.
6.2.The use of AI tools occurs within our enterprise-licensed environment, operated under contractual terms and technical controls designed to support compliance with the POPI Act and where applicable independently certified (e.g., ISO/IEC 27001; SOC 2 Type II) and aligned with ISO/IEC 27018 for protection of personal data in cloud service or equivalent internationally recognised standards.
6.3.Where AI tools are used in connection with a client’s matter, the contractor shall take reasonable steps to ensure that only the minimum information reasonably necessary is processed by such tools and shall implement appropriate safeguards designed to protect the confidentiality, integrity and security of client information.
6.4.Unless expressly agreed otherwise in writing or required by applicable law, the contractor shall determine, in its sole discretion, whether AI tools are appropriate for a particular engagement and reserves the right to modify, replace or discontinue the use of any AI technology at any time without prior notice.
6.5.For the avoidance of doubt, the contractor may utilise AI software systems in the ordinary course of its business, provided that such use complies with all applicable laws and regulations. The contractor shall remain responsible for ensuring that any use of AI in connection with the services, is lawful, appropriate and does not prejudice your rights or interests.
7.COPYRIGHT
7.1.Unless otherwise agreed in writing, all intellectual property rights, including copyright and all other proprietary rights, in and to any relevant reports, opinions, memoranda, presentations, research, analyses, documents, software, databases, graphics and other work product or deliverables created, developed or supplied by the contractor in connection with the services to you (“Deliverables“) shall remain vested in the contractor until all amounts owing by you in respect of the relevant services, including professional fees, disbursements, interest and any applicable taxes, have been paid in full and cleared.
7.2.Upon receipt of payment in full of all amounts due in respect of the relevant Deliverables, and unless otherwise agreed in writing, the contractor shall assign to you all right, title and interest in the intellectual property rights in that part of the Deliverables which consists of output created specifically and exclusively for you, to the extent that such rights are capable of assignment under applicable law. The contractor shall, upon your reasonable written request and at your cost where additional documentation is required, execute such documents and perform such acts as may reasonably be necessary to give effect to such assignment.
7.3.Notwithstanding clause 7.2 above, no right, title or interest is transferred to you as it pertains to any Background IP of the Alternative Prosperity Group, as defined in clause 7.4 below.
7.4.The term “Background IP” means all intellectual property of the contractor and of the Alternative Prosperity Group subsisting before the mandate or created independently of it, including all methodologies, analytical frameworks, models, tools, templates, databases, processes, workflows and know-how, together with any adaptation, enhancement or derivative work of any of them. All Background IP vests in and remains the sole property of the contractor or the relevant member of the Alternative Prosperity Group, as the case may be.
8.RECORDS
8.1.All documentation relating to matters handled by Alternative Prosperity will be kept electronically, and in some instances as paper copy, in accordance with clause 4 above. This will include any recorded information or information which has been otherwise entered into a record as described in section 1 of the POPI Act.
8.2.All data will be destroyed in accordance with the stipulations of the POPI Act unless exemptions apply.
8.3.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.
8.4.The parties shall at all times comply with any such directives or requests from the Information Regulator as determined in section 39 of the POPI Act.
9.NO SOLICITATION
9.1.Both parties undertake that they will not during the term of this Terms and Conditions 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.
9.2.The provisions of clause 9.1 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.
9.3.The parties may agree in writing to waive the provisions of this clause 9 in respect of one or more individuals.
10.TERMINATION OF MANDATE
10.1.Unless otherwise agreed, you are entitled to terminate our mandate at any time on 30 (thirty) days’ written notice to the contractor.
10.2.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 the contractor to date of termination.
10.3.The contractor may terminate the mandate with you on 30 (thirty) days’ written notice. Where you are in breach of clause 15, 16 or 17, the contractor may exercise the termination, cessation or suspension rights provided for in the applicable clauses.
10.4.The contractor may immediately terminate the mandate where continuing to fulfil the mandate would place it in breach of any law or professional obligation.
10.5.Notwithstanding this clause 10, either party may terminate the mandate immediately on written notice if the other party becomes insolvent, is placed in provisional or final liquidation, business rescue, receivership or administration, enters into a compromise with its creditors, or ceases trading.
11.BREACH
11.1.Should a party be in breach of any of its obligations under these Terms and Conditions (‘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 14 (fourteen) days.
11.2.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.
11.3.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 Terms and Conditions.
11.4.Any provision of these Terms and Conditions which, by its nature or express wording, is intended to survive termination, including the provisions relating to confidentiality, intellectual property, limitation of liability, indemnities, data protection, dispute resolution and governing law, shall survive such termination.
12.LIMITATION OF LIABILITY
12.1.The maximum aggregate liability of the Alternative Prosperity Group for all claims arising out of the performance of our mandate, from whatever source and howsoever arising, whether in contract, delict or otherwise, shall be limited to R5,000,000.00 (five million rand). This limitation shall not apply to the extent that liability arises from the gross negligence, wilful misconduct, fraud, dishonesty, criminal conduct or unlawful conduct of the Alternative Prosperity Group or any person acting for or controlled by the Alternative Prosperity Group. This maximum liability is further subject to the following waivers and indemnity:
12.1.1.You waive any claim of whatsoever nature (including damage, loss, interest, costs, expenses or otherwise (not limited to ejusdem generis)) which you may have against Alternative Prosperity beyond the limit recorded in clause 12.1. The Alternative Prosperity Group undertakes to maintain professional indemnity insurance with a reputable insurer in an amount of not less than R5,000,000.00 (five million rand).
12.1.2.You waive any claim of whatsoever nature (including but not limited to damages, loss, interest, costs, expenses or otherwise (not limited to ejusdem generis)), howsoever arising whether in contract or in delict or under section 19(3) of the Companies Act 71 of 2008 (as amended or substituted) or otherwise, which you may have against any of its 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.
12.1.3.You indemnify Alternative Prosperity, its affiliates, directors, past directors, employees and subsidiaries (in whose favour this constitutes a stipulatio alteri capable of acceptance at any time) against any claim of whatsoever nature, including damages, loss, interest, costs, expenses or otherwise, made by any third party arising from or in connection with your instructions, information supplied by you, your breach of these Terms and Conditions, your unlawful conduct, or your use or permitted use of any report or advice provided by Alternative Prosperity, including where such report or advice is used directly or indirectly for the purposes of B-BBEE fronting. This indemnity shall not apply to the extent that the relevant claim, loss, damage, liability, cost or expense is directly or indirectly attributable to the gross negligence, wilful misconduct, fraud, dishonesty or unlawful conduct of Alternative Prosperity or any person acting for or controlled by Alternative Prosperity and shall apply only to the extent permitted by applicable law, including the Consumer Protection Act 68 of 2008.
12.2.Save as provided for in clause 2.8, you shall not be entitled 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.
12.3.The limitation of liability in this clause 12 shall not apply to the extent that any liability arises from any criminal, dishonest, fraudulent or unlawful act, omission or misrepresentation on the part of the Alternative Prosperity Group or any of its directors, employees or agents.
12.4.In determining the liability of the contractor for purposes of any action in contract in terms of this clause, 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 34 of 1956 as may be amended 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 34 of 1956 as may be amended.
13.DISPUTE RESOLUTION
13.1.If any dispute arises between the parties in connection with the interpretation or application of the provisions of these Terms and Conditions, its breach or termination, or the validity of any documents furnished by the parties pursuant to the provisions of these Terms and Conditions or any other matter arising out of or in connection with these Terms and Conditions, that dispute shall, unless resolved amongst the parties, be referred to and be determined by arbitration under this clause 13.
13.2.Any party may also, by written notice to the other party, demand that a dispute be determined under this clause 13.
13.3.This clause 13 shall not preclude any party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
13.4.The arbitration shall be held:
13.4.1.in Cape Town;
13.4.2.with only the arbitrator and the legal and other representatives of the parties to the dispute present;
13.4.3.in accordance with the formalities and procedures settled by the arbitrator, and may be held in an informal and summary manner and otherwise in accordance with the Rules of the Arbitration Foundation of South Africa (“the AFSA Rules“), or its successor in title, on the basis that it shall not be necessary to observe or carry out the usual formalities or procedures, pleadings and discovery or the strict rules of evidence, it being the intention that the arbitration shall be held and completed within 30 (thirty) business days after it has been demanded; and
13.4.4.on the basis that the arbitrator shall be entitled to decide the dispute in accordance with what s/he considers to be just and equitable in the circumstances.
13.5.The arbitrator shall be agreed to by both parties and shall be a practising senior counsel or attorney of not less than 10 (TEN) years’ experience.
13.6.If the parties to the dispute fail to agree within 7 (seven) days after the arbitration has been demanded on a particular arbitrator, the arbitrator shall be appointed by the Provincial Director of the Legal Practice Council of the Western Cape within 14 (fourteen) days after the parties have so failed to agree or as soon thereafter as is practicable.
13.7.The arbitrator may, in any dispute in which any matter of a technical nature is relevant, appoint an assessor having the requisite experience to assist the arbitrator in the arbitration. The assessor shall not have a vote in the award made by the arbitrator but shall act as an advisor only.
13.8.The decision of the arbitrator shall be subject to a right of appeal in terms of the AFSA Rules.
13.9.The decision of the arbitrator, if no notice of appeal is lodged in terms of the AFSA Rules, or, if notice of appeal is so lodged, then the decision of the appeal arbitrator or arbitrators, shall be final and binding on the parties to the dispute and may be made an order of any court to whose jurisdiction the parties are subject at the instance of either party.
13.10.The arbitrator shall be entitled to make such award, including an interdict or damages as s/he in his sole discretion may deem fit and appropriate, and to deal as s/he deems fit with the question of costs, including, if applicable, costs on the attorney and client scale, and its own fees and the fees of any assessor.
13.11.The provisions of this clause 13 –
13.11.1.constitute an irrevocable consent by the parties to any proceedings in terms hereof and no party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by those provisions; and
13.11.2.are severable from the rest of these Terms and Conditions and shall remain in effect despite the termination of or invalidity for any reason of these Terms and Conditions.
14.NO FORMAL INVESTMENT ADVICE
14.1.You understand and agree that nothing included on the website of Alternative Prosperity shall constitute any formal investment, financial, tax, accounting or legal advice and that no content on this website shall in any form constitute any offer, solicitation or recommendation for any investment or funding for you.
14.2.No content on this website shall be construed as, or relied upon as, an offer, invitation, solicitation, endorsement, recommendation, or advice to invest in, acquire, dispose of, or otherwise engage in any investment, funding opportunity, financial product, or transaction.
14.3.You further acknowledge that your use of, or reliance on, any information contained on this website is entirely at your own risk, and that you should obtain independent professional advice tailored to your specific circumstances before making any financial, investment, legal, tax, or business decisions. Alternative Prosperity shall not be liable for any loss, damage, cost, or expense arising from or relating to any reliance placed on the information contained on this website.
14.4.It is essential that all visitors to this website ensure to obtain independent professional advice before making any financing or investment decisions.
14.5.Nothing in any report, deliverable, presentation or advice provided by the Alternative Prosperity Group constitutes legal, tax, accounting, audit or investment advice, and you should obtain such advice independently where required. The Alternative Prosperity Group does not receive, hold, administer or disburse funds on your behalf, and does not act as an intermediary in respect of, or render advice on, any financial product as contemplated in the Financial Advisory and Intermediary Services Act 37 of 2002.
14.6.The Alternative Prosperity Group does not guarantee, and gives no warranty to you in respect of, any B-BBEE scorecard outcome, points recognition or contributor level. Recognition is determined by an accredited verification agency applying the relevant codes of good practice and sector codes to your circumstances, and no statement, model or recommendation provided by the Alternative Prosperity Group binds any such accredited verification agency. You acknowledge that the services rendered by the Alternative Prosperity Group does not guarantee a specific outcome by the independent accredited verification agency.
15.COMPLIANCE WITH REGULATORY FRAMEWORKS
15.1.You acknowledge and agree that Alternative Prosperity is required to comply with all applicable laws and regulatory requirements relating to the prevention and detection of financial crime, including, where applicable, the Financial Intelligence Centre Act 38 of 2001, as amended (“FICA“), the Prevention of Organised Crime Act 121 of 1998, the Prevention and Combating of Corrupt Activities Act 12 of 2004, applicable anti-money laundering and counter-terrorist financing legislation and regulations, and all other applicable South African laws and regulations relating to financial crime prevention (collectively hereinafter referred to as the “Financial Crime Laws”).
15.2.You undertake to provide the Alternative Prosperity, promptly upon request, with all information and supporting documentation reasonably required to enable Alternative Prosperity to comply with its obligations under the Financial Crime Laws, including information relating to your identity, beneficial ownership, source of funds and/or source of wealth, where applicable.
15.3.You warrant that all information and documentation provided to Alternative Prosperity by you for purposes of due diligence or verification purposes are true, accurate, complete and not misleading.
15.4.Any breach by you of this clause 15 shall permit Alternative Prosperity to terminate, cease or suspend any services delivered to you, until such time that the breach is adequately remedied.
16.ANTI-CORRUPTION AND ANTI-BRIBERY
16.1.You undertake to comply with all applicable anti-bribery and anti-corruption laws and regulations, including the Prevention and Combating of Corrupt Activities Act 12 of 2004, and shall not, directly or indirectly, offer, promise, give, solicit, authorise or accept any bribe, unlawful payment, improper advantage, facilitation payment or other benefit intended to improperly influence any person in connection with the business relationship between you and Alternative Prosperity.
16.2.You warrant that neither you nor, to the best of your knowledge, any of your directors, officers, employees, agents or representatives will engage in any conduct that will cause Alternative Prosperity to contravene any applicable anti-bribery or anti-corruption laws.
16.3.Any breach by you of this clause 16 shall permit Alternative Prosperity to terminate, cease or suspend any services delivered to you, until such time that the breach is adequately remedied.
17.SANCTIONS AND RESTRICTED PARTIES
17.1.You warrant that neither you nor any person or entity controlling, controlled by or acting on behalf of you is a person or entity that is subject to applicable sanctions, restrictions, prohibitions or asset-freezing measures imposed or administered by any competent governmental, regulatory or international authority applicable to Alternative Prosperity or the relevant transaction (“Sanctions“).
17.2.Furthermore, you undertake that you shall promptly notify Alternative Prosperity if you become aware of any circumstance which may result in a breach of this clause 17 or applicable Sanctions.
17.3.Any breach by you of this clause 17 shall permit Alternative Prosperity to terminate, cease or suspend any services delivered to you, until such time that the breach is adequately remedied.
18.CROSS-BORDER TRANSFERS
Where any transfer of Personal Information contemplated in these Terms and Conditions constitutes a cross-border transfer, that transfer shall be effected only on a basis permitted by section 72 of the POPI Act. You consent to the contractor transferring Personal Information to a member of the Alternative Prosperity Group situated outside the Republic of South Africa, provided that such transfer is subject to binding intra-group arrangements which uphold principles for the reasonable Processing of that Personal Information substantially similar to the conditions for lawful Processing set out in the POPI Act.
19.CONTACT DETAILS
19.1.For purposes of these Terms and Conditions, any notices, communications, requests, instructions or correspondence to be delivered to the contractor must be addressed to the contractor at the following details, unless the contractor notifies you in writing of any change to such details:
19.1.1.
| Company name: | Alternative Prosperity Holdings (Pty) Ltd |
| Registration number: | 2015/040144/07 |
| Physical address: | Unit 12, Paardevlei Specialist Medical Centre, Paardevlei, Somerset West, 7130 |
| Email address: | dawie@apros.co.za |
| Telephone number: | (021) 851 0091 |
| Contact person: | Dawie Malan |
19.2.Any notice or communication sent to the above details shall be deemed to have been properly delivered if delivered by hand, sent by email, or transmitted by any other method agreed to in writing between the parties, subject to proof of transmission or delivery.
19.3.The contractor may amend its contact details from time to time by giving written notice to you. Until such notice is given, the contact details recorded in this clause shall remain the contractor’s chosen details for purposes of all notices and communications under these Terms and Conditions.
20.FORCE MAJEURE
20.1.Neither party shall be liable for any failure or delay in performing its obligations to the extent that the failure or delay is caused by an event beyond its reasonable control which could not have been avoided by steps which might reasonably be expected to have been taken by a reasonable and prudent party. The affected party shall notify the other as soon as reasonably practicable and shall take all reasonable steps to minimise the effect of the event on performance.
20.2.If such an event prevails for a continuous period of 60 (sixty) days or more, either party may terminate the mandate on written notice without incurring liability to the other, save in respect of rights and obligations accrued before termination.
21.GENERAL
21.1.These Terms and Conditions, together with the engagement letter, quotation or proposal to which they relate, constitute the entire agreement between the parties in regard to their subject matter, and neither party shall be bound by any undertaking, representation or warranty not recorded in them.
21.2.No variation, amendment, waiver or consensual cancellation of these Terms and Conditions in relation to an accepted engagement shall be of any force or effect unless reduced to writing and signed by both parties.
21.3.If any provision of these Terms and Conditions is held to be invalid, unenforceable or illegal for any reason, the remaining provisions shall continue in full force and the offending provision shall be deemed to have been deleted.
21.4.You may not cede any of your rights or delegate any of your obligations under these Terms and Conditions without the contractor’s prior written consent. The contractor may cede its rights and delegate its obligations to any member of the Alternative Prosperity Group on written notice to you.
21.5.In these Terms and Conditions “business day” means any day other than a Saturday, Sunday or public holiday gazetted by the government of the Republic of South Africa.
21.6.All fees, disbursements and other amounts referred to exclude value-added tax, which is payable in addition at the rate prevailing at the date of invoice.
