WECOUNT ACCOUNTANCY – STANDARD TERMS AND CONDITIONS as @ 25/01/2022
The following terms of business apply to all engagements accepted by WeCount Accountancy.
Definitions and Interpretation
In this Agreement (which expression shall be deemed to include the Schedules hereto):
The following expressions have the following meanings:
“Commencement Date” means the earlier of your consultancy agreement or the date of these standard terms on conditions;
“Services” means the consultancy services more particularly described in the First Schedule;
“Taxes” means all present and future taxes, levies, imports and duties of whatever nature charged by any national, supra-national or local taxing or fiscal authority including, without limitation, income tax and national insurance contributions, but not including VAT payable in respect of the provision of the Services.
Unless otherwise specified, words importing the singular include the plural, words importing any gender include every gender, and words importing persons include bodies corporate and unincorporated and (in each case) vice versa.
Reference to Clauses and other provisions are references to Clauses and other provisions of this Agreement.
Any and each person or organization whose activities you may control, or any other organization or entity associated with you, if any such person or organization is identified in the engagement letter as a recipient or beneficiary of the services or any product thereof and any and each person or organization which we and you agree may be so treated.
We will seek to ensure that our services are satisfactory at all times and delivered with reasonable skill and care. If at any time you would like to discuss with us how the service can be improved, you are invited to telephone the partner/director identified in the engagement letter.
The engagement will be governed and interpreted in accordance with the laws of South Africa.
Where individuals are to be involved in delivering the services, which individuals are named in the engagement letter, we will use reasonable endeavors to ensure that they are so involved. We may substitute those named for others of equal or similar skills.
During the term of the Agreement, the Accountancy agrees to:
provide the services of such one or more persons as the Accountancy in his absolute discretion shall determine as being reasonably required in order to perform the Services PROVIDED THAT any such person or persons shall perform the Services in a good and workmanlike manner and with the skill and care to be expected of a professional consultant having experience of carrying out the services of a similar type and nature as the Services;
act in good faith and not do any act matter or thing that may prejudicially affect the interests of the Client; and
comply with the lawful, proper and reasonable directions of the Client; and
provide the Client with all correspondence, information and data relating to the provision of the Services as shall reasonably be requested by the Client; and
provide such other service or services as may be agreed from time to time by the Parties.
The Consultant shall procure that the person or persons actually providing the Services shall (unless prevented by illness or other cause beyond the reasonable control of the Consultant), be available to perform the Services on such days and times as shall be agreed between the Parties from time to time.
Liability and Indemnity
The Consultant shall not be liable to the Client for any Consequential Loss suffered by the Client (whether caused by the negligence of the Consultant, its servants, or agents or otherwise) which arises out of or in connection with this Agreement.
The Consultant shall not be liable to the Client or be deemed to be in breach of this Agreement by reason of any delay in performing, or any failure to perform, any of the Consultant’s obligations in relation to the Services, if the delay or failure was due to any cause beyond the Consultant’s reasonable control.
The Consultant shall have no liability to the Client for any loss, damage costs or expenses or other claims for compensation arising from any document or data or information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late or non-arrival, or any other fault of the Client.
The liability of the Accountancy shall not exceed the sum of R1,000,000.
The Accountancy agrees to maintain at its own cost a policy of insurance to cover the liability of the Accountancy in respect of any act or default for which it may become liable to indemnify the Client under the terms of this Agreement with cover of not less than R1,000,000 and to provide copies of such insurance certificate and receipt of payment of latest premium to the Client upon request.
Communication between us is confidential and we shall take all reasonable steps to keep confidential your information except where we are required to disclose it by law, by regulatory bodies, by our insurers or as part of an external peer review. Unless we are authorised by you to disclose information on your behalf this undertaking will apply during and after this engagement.
We reserve the right, for the purpose of promotional activity, training or for other business purpose, to mention that you are a client. As stated above we will not disclose any confidential information.
Conflicts of interest
We will inform you if we become aware of any conflict of interest in our relationship with you or in our relationship with you and another client unless we are unable to do so because of our confidentiality obligations. We have safeguards that can be implemented to protect the interests of different clients if a conflict arises. Where conflicts are identified which cannot be managed in a way that protects your interests then we regret that we will be unable to provide further services.
If there is a conflict of interest that is capable of being addressed successfully by the adoption of suitable safeguards to protect your interests then we will adopt those safeguards. We reserve the right to provide services for other clients whose interests are not the same as yours or are adverse to yours subject of course to the obligations of confidentiality referred to above.
We confirm that we will comply with the provisions of the Data Protection Act 1998 when processing personal data about you [and your family]. In order to carry out the services under our engagement letter and for related purposes such as updating and enhancing our client records, analysis for management purposes and statutory returns, legal and regulatory compliance and crime prevention we may obtain, process, use and disclose personal data about you.
We shall render invoices in respect of the services comprising fees and disbursements, together with any other foreign taxes (if applicable) that might be payable thereon (“fees”). Details of our fees and any special payment terms will be set out in the engagement letter.
Our fees are based on the time spent on your affairs by WeCount Accountancy persons or agents, together with disbursements, will be billed as work progresses, and are based on the time required by the resources assigned to the engagement plus out-of-pocket expenses. Individual hourly rates vary according to the degree of responsibility involved and the experience and skill required. The fees may differ from estimates that may have been supplied, which estimates will be provisional only. Stringent reporting requirement or deadlines imposed by you might require work to be carried out a higher level than usual or outside normal working hours.
This may result in increased costs. Additional fees may also result from material changes in the services or from difficulties in obtaining information, which could nor treasonable have been foreseen. Invoices are payable on presentation.
Disbursement in respect of travelling expenses, photocopies, stationery, revenue stamps, postage and telephone calls will be recovered at our predetermined rates.
In return for the delivery of services by us, you shall pay our fees, without any right of set-off, on presentation of our invoice. If you are not in agreement with any fee note, you are required to notify us in writing of your objection within 5 business days of the date reflected on the fee note. Failure to do so will constitute your acknowledgement that our fee note is prima facie correct and due and payable.
All payments to BFS Accounting Services for services shall be made against BFS Accounting Services invoices which shall be presented during or after the period of the provision of the services in respect of services provided.
In the event of your appointing another adviser in our stead, or otherwise terminating our mandate, we will be entitled to raise a fee note upon receipt of such notification for all work done to date and not yet billed, at our standard charge-out rates, including disbursements incurred. In such event, you undertake to settle our account in full prior to us handing over books and records to you or to your appointee.
We shall be entitled to charge interest (at the prevailing prime overdraft rate) on all overdue amounts, for whatsoever reason, outstanding for more than thirty days from the date reflected on our fee note. It is agreed that we may at any time increase or reduce the interest rate by the same margin as and in accordance with a change in the prescribed rates in terms of the National Credit Act. Such interest will be calculated on a monthly basis. All payments will be allocated first to interest, then to disbursements and then to the oldest outstanding fee.
The service contract
The services contract sets out the entire agreement and understanding between us in connection with the services. Any modifications or variations to the services contract must be in writing and signed by an authorized representative of each of us save to the extent provided otherwise in law. No variation of the terms and conditions of the engagement will be of any force or effect, unless reduced to writing and signed by all of the signatories thereto save to the extent provided otherwise in law. In the event of any inconsistency between the Engagement Letter and any other elements of the service contract, the Engagement Letter will prevail. In the event of any inconsistency between these standard terms and conditions and additional terms that may apply, the additional terms shall prevail.
Third party rights
The service contract shall not create or give rise to, nor shall it be intended to create or give rise to, any third party rights, circumstances beyond our or your control.
Neither of us shall be in breach of our contractual obligations nor shall either of us incur any liability to the other if we or you are unable to comply with the services contract as a result of any cause beyond our or your reasonable control. In the event of any such occurrence affecting one of us, that one shall be obliged as soon as reasonably practicable to notify the other, who shall have the option of suspending or terminating the operation of the services contract on written notice, which notice will take effect immediately on delivery thereof.
You shall indemnify WeCount Accountancy and any WeCount Accountancy persons and hold the aforesaid parties and/or persons harmless against any loss, damage, expense or liability incurred by the parties and/or persons as result of, arising from or in connection with a combination of the following two circumstances:
any breach by you of your obligations under the services contract and
any claim made by a third party or any other beneficiaries which results from or arises from or is connected with any such breach
Each of us may terminate the services contract or suspend its operation by giving one calendar months’ notice in writing to the other at any time or as otherwise agreed between us. Termination or suspension under this clause shall be without prejudice to any rights that may have accrued to either of us before termination or suspension and all sums due to us shall become payable in full when termination or suspension takes effect. We will be entitled to raise a fee note upon receipt of such notification for an amount adequate to cover all work done to date and not yet billed including disbursements incurred. On termination each of us on request will return any property belonging to the other that it has in its possession. We may retain one copy of any documentation upon which the services are based to enable us to maintain a professional record of our involvement.
Each clause or term of the service contract constitutes a separate and independent provision. If any of the provisions of the services contract are held by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect
You agree to and accept the provisions of the services contract on your own behalf and as the agent for other beneficiaries. You shall procure in such circumstances that any other beneficiaries shall act on the basis that they are a party to the services contract, as if they had each signed a copy of the Engagement Letter and agreed to be bound by it. However, you alone shall be responsible for payment of our fees.
Your signature constitutes agreement to settlement of any dispute, controversy or claim by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa. The arbitration shall be held before a single arbitrator – nominated by you and WeCount Accountancy or failing agreement between us within 7 days after the arbitration has been demanded, appointed by the Secretariat of the Arbitration Foundation of Southern Africa. The arbitrator shall deliver a written award setting forth findings of fact, conclusions of law and the reasons for the decision. The arbitrator’s award shall be final and binding on both parties and shall not be subject to appeal.
Our staffs undergo periodic training and this, together with the taking of annual leave, may lead to staff turnover and lack of continuity. We will use our best endeavors to avoid any disruption to an engagement’s progress.
You hereby consent to the jurisdiction of the Magistrate’s Court Act No 32 of 9 of any district having jurisdiction in terms of section 2 of the said Act, in any action instituted by us against you arising from this agreement.