Accensis Incorporated - Standard Terms and Conditions of Engagement
All services provided by Accensis to a client in accordance the written agreement with that client will be subject to the following standard terms and conditions in addition to what is stated specifically in the written agreement.
1.1 Unless the context clearly indicates otherwise:
• reference to any gender shall include the other genders
• the singular shall include the plural
1.2 In these standard terms and conditions, the words and phrases set out below have the following meanings:
1.3 Client means the entity/entities, or the persons, named in the written agreement to which or whom services are to be provided by Accensis.
1.4 Services mean the audit, project, engagement, assignment, investigation, assistance, advice, report, certificate, or other services to be rendered by Accensis as set out in the written agreement. This will also include any goods, products or other items to be supplied by Accensis that the written agreement stipulates.
1.5 Written agreement means the letter of engagement, or contract, or proposal, or other document between the client and Accensis setting out the services to be provided and the related terms and conditions.
2. Headings have no effect
2.1. The headings in the written agreement and in these terms and conditions shall not in any way affect or govern the interpretation or construction of the applicable terms and conditions.
3. General principles
In providing any non-audit services, Accensis will:
• Not act in the capacity of management;
• Not act as a formal advocate of or representative for client;
• Not decide on what recommendations/alternatives to accept or implement;
Whereas the client will be responsible for:
• Making all management decisions and performing all management functions including; deciding on what recommendations/alternatives to accept and implement;
• Designing a competent management member to oversee the services;
• Evaluating the adequacy and results of the services;
• Establishing and maintaining internal controls and for determining the adequacy of accounting systems;
• Monitoring ongoing activities; and
• The maintenance of the accounting records, preparations of the annual financial statements and safeguarding the assets of the company.
3.1. The services, written agreement and any related matters are governed by South African law and any claims will be subject to the exclusive jurisdiction of the courts in South Africa.
3.2. The written agreement and these standard terms and conditions, together with any documents specified in the written agreement, constitute the entire agreement between Accensis and the client and surpasses any prior oral or written representations, if any. They may be varied only by the written agreement of both Accensis and the client.
3.3. Where services are subcontracted and this has been acknowledged by the client, this written agreement and any related approvals for the provision of non-audit services will also apply to such subcontracted services.
3.4. Where it is intended that the non-audit services should also be provided to group companies and divisions of client, any approvals given will be deemed to also apply to services to be provided by a member firm which is part of Accensis in terms of a separate engagement letter of agreement that may be concluded with the group company or division concerned.
3.5. Accensis and the client are independent contractors. Neither party shall act or represent itself as an agent of the other and shall not in any manner assume or create an obligation of, or in the name of, the other.
4.1 Where the written agreement is a proposal, it shall be valid for a period of 60 days from the date of issue, unless otherwise indicated. Where there is a conflict between the terms in the written agreement and these standard terms and conditions, these standard terms and conditions will apply.
5. Provision of services
5.1. Accensis will endeavour to deliver the services with the requisite level of skill, integrity and professional competence at all times.
5.2. Accensis may subcontract any services under this written agreement to any member firm which is part of Accensis’ or, with the consent of the client, to any other party. Client’s relationship is solely with Accensis as the entity contracting to provide the services.
5.3. Where the delivery of the services requires information from, or the co-operation of, officials and employees of the client, the client undertakes to use its best efforts to ensure that its directors, management, officials and employees are available when required and that they provide the necessary information and co-operation on a timely basis. Reasonable facilities and access to data and information will be provided by the client.
5.4. Where Accensis personnel to deliver the services are named in the written agreement, Accensis will take reasonable steps to ensure that such personnel are used. Nevertheless, Accensis personnel may be absent for short periods of time due to other commitments, annual leave or training. Accensis will endeavour to avoid any disruption to the delivery of the services as a result thereof.
5.5. Accensis may need to substitute named personnel and, in such an event, will give reasonable notice thereof to the client and will provide replacement personnel of equivalent ability.
6. No offers of employment to be made
6.1. The client undertakes not to make any offer of employment to any Accensis personnel involved in delivering the services from the date of signing the written agreement until the expiration of 6 months after the completion of the services. Similarly, the client undertakes not to contract with any such Accensis personnel for the provision of any services for the same period.
6.2. Accensis undertakes not to make any offer of employment to, and not to contract with, any client personnel with whom Accensis is involved in delivering the services on the same basis as that set out in 5.1 above.
6.3. Should a member of Accensis personnel apply, within the above-mentioned period, for employment at the client or to contract for the provision of any service to the client, then the client shall pay Accensis a fee of 20% of the annual cost of employment package of that person if he or she is employed or contracted by the client.
6.4. Similarly, Accensis will pay such a fee to the client in the event of employing or contracting a member of the client personnel with whom Accensis had been involved in delivering the services.
7. Intellectual property
7.1 Accensis shall retain all intellectual property rights in all materials, including methodologies, know-how, trade secrets, software and tools used, provided or developed by Accensis in providing and delivering the services.
7.2 Except for cases where a licence is expressly granted by Accensis, the client shall acquire no rights or interest in such property.
7.3 Any intellectual property and proprietary rights in material provided by client for performing the services shall remain the property of the client.
7.4 This clause 7 is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement.
8.1. The client acknowledges that Accensis provides audit, accounting, financial services, management consulting and a variety of other services to a large and diverse range of clients. The provision of the services to the client will not prevent Accensis from providing the same or similar services to other parties, some of whom could be competitors of the client or who may be in conflict with the client.
8.2. The client also acknowledges that Accensis may already have provided the same or similar services to other parties.
8.3. Where Accensis is aware of the same or similar services being provided to other parties, safeguards will be implemented to protect the interests of the client. These safeguards will include the use of different personnel and other barriers to ensure the confidentiality of information.
8.4. Whilst Accensis will be bound by the confidentiality clauses mentioned below, Accensis shall have the right to use the name of the client and a description of the services as a reference in seeking to provide services to other parties, unless the client expressly forbids this.
9.1. Accensis will keep confidential all information obtained from the client except such information as is in the public domain, or where the client agrees to Accensis making this information available to other parties.
9.2. Notwithstanding 9.1 above, the client acknowledges that Accensis may be required to disclose confidential information to its legal advisers, insurers, the Independent Regulatory Board for Accountants, or to another party under any law requiring such disclosure. Disclosure in any of these instances will be permissible and will not be a breach of clause 9.1 above.
9.3. The client agrees to keep confidential any methodologies, technology, know how, trade secrets, software and tools used, provided or developed by Accensis in providing and delivering the services. Similarly, any information provided or developed by Accensis will be kept confidential, unless Accensis expressly agrees in writing to the client making this available to other parties. This confidentiality requirement will not apply to any information that client is required by law to disclose to another party.
9.4. Where the written agreement is a proposal for work to be performed and the client does not accept the proposal, any documentation or property specifically identified by Accensis will be returned to Accensis on request.
9.5. The client acknowledges that Accensis is required, in terms of professional standards, to retain documentation to support the work done and any deliverables provided. Where this documentation includes confidential information of the client, Accensis will be entitled to retain such documentation.
9.6. This clause 9 is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement.
10. Professional fees
10.1. The basis of charging professional fees is set out in the written agreement. All cost estimates are exclusive of Value Added Tax.
10.2. Disbursements and out-of-pocket expenses incurred in providing the services will be charged at cost. These include all reasonable expenditure necessary for the successful completion of the services including but not limited to travelling, subsistence, goods and services purchased on the client’s behalf, Communications, stationery, report and presentation material, secretarial time and computer charges.
10.3. Invoices for fees and expenses/disbursements will be presented monthly or on completion of the services. Invoices are payable on presentation of such invoice.
10.4. Payments shall be made by the client without any deduction. In the event of a dispute over an amount of fees, the amount not in dispute shall be paid on presentation of the invoice without any set off or counterclaim that may be alleged.
10.5. Accensis will, at its discretion, charge interest on any invoices, or portions thereof, not paid within 15 days of presentation. The rate of interest will be at the overdraft interest rate charged by Accensis’ bankers plus 2%. Payments of such penalty interest shall be without prejudice to any other rights that Accensis may have in law or otherwise.
10.6. The client acknowledges that Accensis may suspend provision of the services until all amounts due are paid in full and retain custody of any documents received from the client until payment is received.
11. Use of reports and other deliverables
11.1. Any advice, report, certificate, schedule or other deliverable arising from or in connection with the services will be for the sole use of the party or parties to whom it is addressed and may be relied upon only by that party or parties and used solely for the purpose/s for which it was prepared. No person other than the party or parties to whom it is addressed shall be entitled to place any reliance thereon for any purpose whatsoever.
11.2. Any such advice, report, certificate, schedule or other deliverable is based on the particular facts and circumstances of the client at a particular point in time and on any applicable prevailing rules and regulations in force. Consequently, such advice, report, certificate, schedule or other deliverable may well not be relevant to another party or at a different time and under different circumstances. Accensis does not warrant or guarantee that there will be no change to relevant facts and circumstances in the future or that future events or outcomes will transpire.
11.3. Unless otherwise indicated in the advice, report, certificate, schedule or other deliverable, copies or extracts therefrom may be made available to the addressee’s advisors provided that they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule or other deliverable and provided that the advisors are made aware of paragraphs 11 and 12.
11.4. Copies may be made available to the addressee’s advisors provided that they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule or other deliverable and provided that the advisors are made aware of this paragraph 11.
11.5. Copies, in whole or in part, may not be made available to any other party without the prior express written consent of Accensis, which consent may be given or withheld at our absolute discretion.
11.6. The client indemnifies Accensis against any claim by any third party arising from a copy of any report, certificate, schedule or other deliverable which the third party received from the client or its advisors.
11.7. Only the final signed report, certificate, schedule or other deliverable should be relied and acted upon. Oral communications and draft reports/certificates/other documents must be regarded as preliminary and intended only for discussion purposes.
12. Reliance on client information
The services, or any portion thereof, may be dependent on information supplied by the client. Accensis shall be entitled to assume that all the data and information provided by the client is accurate, reliable and complete. Accensis will not be liable to the client or to any third party for any damages suffered as a result of the client providing any information that is incorrect or incomplete or where the client fails to disclose any relevant information to Accensis; and the client indemnifies Accensis against any claims or expenses relating thereto.
13. Limitation of liability
Our liability for non-audit services shall be limited as follows:
13.1. Accensis remains responsible to the client for all of the services under this written agreement including services that may be performed by a party subcontracted by Accensis. According, to the fullest extent possible under applicable law, Accensis will have any liability to the client and the client will not bring, and will ensure that no their member of the client group brings, any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or on connection with this written agreement against any of the Accensis entities except Accensis.
13.2. The maximum liability of Accensis, its partners, directors, employees, and agents in respect of any and all claims which may arise in respect of the services shall be limited to the fees charged for these services individually. This maximum liability shall be an aggregate liability for all claims howsoever arising, whether by contract, delict, negligence or otherwise.
13.3. Where services are rendered otherwise than in terms of a written agreement, this clause shall apply separately to services relating to each invoice issued.
13.4. Accensis, its partners, directors, employees and agents will not be liable to the client or any third party for any consequential, punitive or any other loss or damages beyond the maximum liability specified.
13.5. Accensis, its partners, directors, employees and agents will not be liable to the client or any third party claiming through or on behalf of the client from any cause of action whatsoever, whether under this agreement, delict, statute or otherwise:
• for any indirect or consequential loss or damages whatsoever;
• to the extent that any such loss or damage is attributable to fault, negligence or lack of care on the part of client, such cessionary or any third party
13.6. Any claims, howsoever arising, must be commenced formally within three/two years after the party bringing the claim becomes aware ( or ought reasonably to have become aware ) of the facts which give rise to the action and, in any event, no later than three years after any alleged breach of contract, negligence, delict or other cause of action. This expressly overrides any statutory provision which would otherwise apply.
13.7. This limitation will not apply where Accensis is guilty of wilful misconduct or gross negligence.
13.8. Accensis will not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, strike or labour dispute, war or other violence or cause through any law, order or requirement of any governmental agency or authority.
Where the services comprise forensic work or litigation support:
• the client, in addition to the limitations indicated above, indemnifies Accensis against all liabilities, losses, damages, claims, demands and reasonable expenses including, but not limited to attorneys fees and expenses, in any action brought against Accensis by any other party except the client in connection with or arising out of such services. This indemnification shall not apply in respect of wilful misconduct or gross negligence on the part of Accensis;
• Accensis shall have no responsibility or liability whatsoever in respect of any advice given or work undertaken for the client by persons who are not partners, directors, principals, members of staff or employees of Accensis, regardless of whether or not such persons were introduced to the client by Accensis.
14.1. The written agreement may be terminated forthwith by the client or Accensis in the event of either party going into provisional or final liquidation or having a judicial manager appointed over all or part of its activities.
14.2. In the event of either the client or Accensis being in breach of any of the terms of the written agreement, the other party may, by written notice require the party which is in breach to remedy such breach. If this has not been remedied with them 7 days of receipt of such notice, or if the breach is incapable of being remedied, the other party may in writing terminate the written agreement without prejudice to its right to claim damages arising from such breach.
14.3. Accensis will be able to terminate the written agreement in the event of changes to the laws, regulations, or the shareholding/group structure that would render such services illegal or in conflict with independence or professional rules.
15. Legal addresses
15.1. The client and Accensis each choose the address set out below as its legal address.
Physical address Postal address
The Boulevard, West Wing
19 Park Lane
4319 PO Box 1582
15.2. Any notice to be given in terms of the written agreement or these standard terms and conditions must be in writing and delivered to the legal address of the party concerned.
15.3. Written notice given in a correctly addressed envelope, delivered by hand to a responsible person during ordinary business hours shall be deemed to have been received on the day of delivery.
16. Severability of clauses
16.1 If any provision or clause of the written agreement or of the standard terms and conditions becomes invalid or unenforceable, such provision or clause shall be divisible and be regarded as pro non-scripto and the remainder of the written agreement and the standard terms and conditions shall remain in force and binding.
16.2 A waiver or variation of any individual requirements with the written agreement or of the standard terms shall not result in a variation of any other terms or in the cancellation of the entire written agreement or of the standard terms. Waivers or variations will only be of effect if reduced to writing.
17. Dispute resolution
17.1 The parties accept that disputes may arise between the parties during the course of this agreement.
17.2 Any dispute that arises/may arise, shall be referred to a joint committee of a director of the client and a partner of Accensis, or alternates appointed by them, who will use their best endeavours to resolve the dispute within 14 (fourteen) days of the dispute having been referred to them.
17.3 Should the joint committee be unable to resolve a dispute, such dispute will be submitted to and decided by arbitration in terms of clause 18.
18.1 Any dispute which may arise at any time between the parties relating to any matter arising out of this written agreement or the interpretation thereof, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
18.2 Either party to this agreement may demand that a dispute be referred to arbitration by giving written notice to that effect to the other party.
18.3 This clause shall not preclude either party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.
18.4 The arbitration referred to in 18 shall be held in Durban in the English language; and immediately and with a view to it being completed within 21 (twenty-one) days after it is demanded.
18.5 The parties irrevocably agree that the decision in arbitration proceedings shall be final and binding upon the parties; shall be carried into effect; may be made an order of any court of competent jurisdiction.
18.6 The provisions of clauses 17 and 18 shall not preclude the parties from obtaining urgent interim relief from any court of competent jurisdiction.
19. Force Majeure
19.1 Neither party shall be liable for any failure to fulfil its obligations under this agreement if and to the extent such failure is caused by any circumstances beyond its reasonable control, including but not limited to flood, fire, earthquake, war, tempest, hurricane, industrial action, government restrictions or acts of God. Should either party be unable to fulfil a material part of its obligations under this agreement for a period in excess of 60 (sixty) days due to circumstances beyond its reasonable control, as recorded in this clause, the other party may at its sole discretion cancel this agreement forthwith.
20.1 No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
21.1. No party shall cede any of its rights or delegate any of its obligations under this agreement, without the prior written consent of the other party, which shall not unreasonably be withheld.
22. Governing law
22.1. This Agreement will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.
23.1. Subject to clauses 17 and 18, the parties consent and submit to the jurisdiction of such High Court of South Africa, or division thereof, which has its seat in Durban, in any dispute arising from or in connection with this Agreement.
24. Ongoing rights
24.1. Notwithstanding termination of this Agreement, any clause, which from the context, contemplates ongoing rights and obligations of the parties, shall survive such termination and continue to be of full force and effect.