STANDARD TERMS AND CONDITIONS
1.1. This document is a record of the standard terms of engagement applicable to your contractual relationship with Alternative Prosperity (“our company, or “we”). We present it to you to avoid any misunderstandings or ambiguity regarding the basis upon which we have accepted your mandate.
1.2. 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.
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.
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. At this point, on being so notified, you must issue us with further instructions.
2.3. 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.
2.4. All disbursements on your behalf will be debited and invoiced to you as and when such disbursements are incurred.
2.5. 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 date of invoice at a rate equal to the prime overdraft lending rate of our bankers from time-to-time.
2.6. 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.
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 person dealing with your matter.
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 par 3.2 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 par 8.1.3 below.
3.2. The definition of B-BBEE fronting in the Broad-Based Black Economic Empowerment Act 46 of 2013 is as follows:
3.2.1. “’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 –
188.8.131.52. 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;
184.108.40.206. 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;
3.2.2. 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
3.2.3. 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 –
220.127.116.11. there are significant limitations, whether implicit or explicit, on the identity of suppliers, service providers, clients or customers;
18.104.22.168. the maintenance of business operations is reasonably considered to be improbable, having regard to the resources available;
22.214.171.124. the terms and conditions were not negotiated at arm’s length and on a fair and reasonable basis.”
4.1. We deal with client’s 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. Unless otherwise stated by you, Alternative Prosperity is authorised by you to retain records supplied by you for statistical, analysis and recording purposes in order to help improve our service.
5.1. We retain copyright of all reports or advice, in whatever form, that we produce.
6.1. 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.
6.2. All data will be destroyed in accordance with the stipulations of the Protection of Personal Information Act unless exemptions apply.
6.3. 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.
7. TERMINATION OF MANDATE
7.1. Unless otherwise agreed, you are entitled to terminate our mandate at any time.
7.2. 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.
8. LIMITATION OF LIABILITY
8.1. The maximum liability of Alternative Prosperity for all claims arising out of the execution of our mandate shall be limited to an amount equal to twice the aggregate fees charged for the work. 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:
8.1.1. 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. Whilst our company will make every effort to ensure that professional indemnity insurance is in place, it gives no undertaking that there will be professional indemnity insurance in place to cover such claim or that if there is such professional indemnity insurance in place that it will be sufficient to cover your claim/s.
8.1.2. 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.
8.1.3. 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.
8.1.4. 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.
8.2. 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.
8.3. The exclusion of liability in this clause 8 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.
8.4. 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.