Terms of Business
Standard Terms of Business
The terms and conditions are the standard terms on which Ownership Solutions provides broad-based black economic empowerment (“BEE”), corporate finance advisory, company secretarial services, administration of employee ownership schemes and related services. There is no need to sign any formal documentation to indicate acceptance of these Terms. Acceptance will be assumed from a continuing engagement with Ownership Solutions.
- These terms and conditions should be read in conjunction with any Appointment Letter, which, where relevant, accompanies and may refer to these Terms. In the event of any inconsistency between these Terms and such Appointment Letter, the Appointment Letter will prevail.
- In this document the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:
- “Appointment Letter” means a letter recording the appointment by you of Ownership Solutions for the purpose of delivering the Services;
- “Client” or “you” means the party in receipt of the Services;
- “Ownership Solutions” “we” or “us” means Ownership Solutions (Proprietary) Limited, a private company with limited liability and registered in the Republic of South Africa (registration number 2005/022059/07) whose registered office is at Grapnel House, 3 Glenhove Road, Melrose Estate, Johannesburg, South Africa;
- “Ownership Solutions Persons” means Ownership Solutions directors and employees, and any body or entity controlled or owned by Ownership Solutions and the directors and employees of such body or entity;
- “Instruction” means any verbal or written instruction given by the Client to Ownership Solutions in terms of which the Client instructs Ownership Solutions to provide the Services to it;
- “Services” means the services to be provided by Ownership Solutions in accordance with the Services Contract;
- “Services Contract” means the contract between the Client and Ownership Solutions, the terms of which are recorded in these Terms and any Appointment Letter, together with any documents or other terms applicable to the Services and shall specifically include any Instruction; and
- “Terms” means these Terms of Business
2 Working Together
To achieve the Client’s objectives, it is important that good communication and a shared understanding of the Client’s instructions and expectations be established at the outset. It is imperative that the Client and Ownership Solutions work together as a team, and that any changes in the Client’s objectives are communicated promptly and clearly to Ownership Solutions. It is the Client’s responsibility, however, to decide the use of and the extent to which it relies on and implements the advice or recommendations of Ownership Solutions.
3 Our Services
- Scope of Services
- Ownership Solutions will represent and advise you on all matters that properly fall within the scope of your Instructions. We may set out our understanding of those Instructions in an appointment or other letter, but are not obliged to do so. You may limit or expand the scope of your Instructions at any time, although we may need to undertake a conflict check before accepting any substantial expansion.
- The nature and content of any advice we provide will necessarily reflect the specific scope and limitations of our engagement, the amount and accuracy of information provided to us and the timescale within which the advice is required. If at your request we provide our advice in an abbreviated format or timescale, you acknowledge that you will not receive all the information you would have done had we provided a full written report or had more time in which to carry out the work.
- If general advice is provided, the applicability of this will depend on the particular circumstances in which it is to be used by you (of which we might not be aware) and should be viewed accordingly. In relation to any particular transaction, specific advice should always be sought and all material information provided to us.
- When your Instructions on a matter are completed, our representation in terms of that specific Instruction will end. We will only advise you further on issues arising from the matter (e.g. implementation and other dates or changes in relevant law or regulation) if you specifically engage us to do so.
- External information and public records
In advising you we may rely on, or provide you with, information obtained from third parties (e.g. experts or witnesses or governmental agencies or registers). We do not accept responsibility and will not be liable for any damage or loss caused by errors or omissions in information obtained from third parties.
- Employees of Ownership Solutions
- From time to time we may delegate tasks to suitably experienced fee earners to enable your work to be carried out in a timely and cost effective manner.
- We will do all we can to ensure the continuity of individuals working on a particular matter. However, sometimes change cannot be avoided. In such circumstances, we will endeavour to tell you promptly who will be handling your work and why the change was necessary.
4 Your Obligations
- To enable us to provide the Services, you agree to provide us with all relevant information, including any fact which may have any bearing on our acting for you or our provision of the Services so that we can consider whether it is relevant to the conduct of the matter.
- It is of particular importance that –
- you provide us in a timely manner with all instructions, information and documents required for us to carry out the Services;
- all information which you provide to us is true, accurate and not misleading to the best of your knowledge, information and belief (this is important as we will not verify the accuracy and completeness of the information which you supply to us unless we have agreed to do so in providing the Services); and
- if there are changes to the information provided to us, you notify us immediately.
- Ownership Solutions shall not be responsible for any loss or damage arising from reliance on any information, or for inaccuracy or other defect in any document, supplied by you.
- You remain responsible for any commercial decisions which you make and regard must be had to the restrictions on the scope of our work and to the large number of other factors, commercial or otherwise, of which you and your other advisers are, or should be, aware.
- Basis of Fees
- Generally our fees reflect the time we anticipate to spend on a matter, charged at approximated global rates, and adjusted where appropriate to reflect other factors. Those factors may include the specialised knowledge, skills or responsibility required, the amounts involved the importance of the matter, urgency and results achieved.
- In cases where our charges are based on hourly rates, unless otherwise agreed, our rates are subject to review from time to time, usually annually on 1 March. Our fees are exclusive of Value Added Tax which is charged at the prevailing rate.
- Fee estimates
Any fee estimate given by us will be given in good faith but will not be contractually binding unless the Appointment Letter or any other letter expressly so provides. It will be subject to the stated exceptions, assumptions and any other factors outside our control and, wherever it is practicable to do so, we will notify you if it is likely to be exceeded.
- Disbursements and expenses
In addition to our fees, we may incur disbursements and expenses from time to time. Disbursements include our external lawyers fees, expert fees (if applicable), and courier charges. Expenses we incur will also be charged to you (including, by way of example, travel and accommodation expenses and photocopy charges). Disbursements and/or expenses-only bills may be delivered when or at any time after the disbursement and/or expense is incurred.
As security for the payment of our fees and disbursements incurred on your behalf, Ownership Solutions reserves the right to require the payment of a deposit. Ownership Solutions shall not be obliged to act nor to take any steps in furtherance of the commencement or completion of the mandate until such deposit have been received.
- We will ordinarily charge you for Services rendered periodically as may be appropriate. We may ask you to pay sums on account of fees and expenses which are anticipated as a matter develops.
- We will not be obliged to act nor take any steps in furtherance of the completion of our mandate until any interim account is settled.
- All invoices will be in South African Rands. Any query on an invoice must be raised within 14 (fourteen) days of delivery. Ownership Solutions also reserves the right to suspend or terminate the provision of the Services if any invoice is not paid within 30 (thirty) days of the due date (although we would not do so without consulting you first).
- Subject to 6.2, all communications from Ownership Solutions to the Client and all information, intellectual property and other materials supplied to or received by the Client from Ownership Solutions and which by its nature is intended to be for the knowledge of the Client alone, and all information concerning the Services, intellectual property and the financial arrangements, shall be kept confidential by the Client unless or until the Client can reasonably demonstrate that any such communication, information and material is, or part of it is, in the context used by the Client, in the public domain through no fault of its own. To the extent that it is in the public domain or is required to be disclosed by law, this obligation shall then cease.
- The Client shall use all reasonable means to procure the observance of such restrictions contained in these Terms and the Services Contract and shall take all reasonable steps to avoid the risk of disclosure of confidential information by ensuring that only the representatives of the Client whose duties will require them to possess any of such information have access thereto and to treat such information as confidential.
- The obligations contained in this paragraph shall endure, even after the establishment of the Services, without limit in point of time except and until such confidential information enters the public domain as set out above or with the prior written consent of Ownership Solutions. If required to do so by law or any applicable regulatory requirements or requested to do so by any regulatory body to whose jurisdiction the Client is subject to or with whose instructions it is customary to comply, the Client may disclose any such information and communications to the person(s) to whom the disclosure is required or requested with prior written notification thereof to Ownership Solutions.
- The Services will require the disclosure of highly confidential Intellectual Property (“IP”) of Ownership Solutions and signing this document, the Client agrees to these confidentiality terms as well as those contained in the Services Contract.
Notwithstanding clause 6.1, Ownership Solutions and Ownership Solutions Persons will be entitled to disclose confidential information relating to or belonging to you to:
- our auditors and any other professional advisers appointed by us from time to time; and
- any other third party to the extent that this is required by law or regulation.
- Contractual obligations
Clauses 6.1 and 6.2 will continue in force beyond the termination or expiry of the Services Contract.
We would expect to be able to publicise our role in any transaction (and refer to the size of the transaction and the other relevant parties), unless you inform Ownership Solutions otherwise. We will forward any draft press release to you before publication for your comments.
7 Non Solicitation
You agree to not without the prior written consent of Ownership Solutions, for a period of 6 months after the completion of the Services or termination of the Services Contract, whichever is the later, actively solicit for employment any employee employed by Ownership Solutions.
8 Electronic Communication
You agree that we may communicate with you by email sent without encryption over the Internet, unless otherwise directed by you. Ownership Solutions will not be responsible for any loss or damage arising from the unauthorised interception, re-direction, copying or reading of emails, including any attachments, nor will we be responsible for the effect on any computer system (or any loss or damage arising from any such effect) of any emails, attachments or viruses which may be transmitted by this means.
9 Intellectual Property Rights
Ownership Solutions retains all copyright, database rights and other intellectual property rights in all works and other things developed, designed, generated or created by us in the course of our providing the Services to you (either before the commencement of or during or after the completion of the provision of the Services) including systems, methodologies, software, know-how, documents and working papers.
The services are provided once-off to, and for your benefit only, and may not be reproduced or without the written consent of Ownership Solutions.
- Duty of Care
We will use all reasonable skill and care in the provision of the Services.
- No warranties
Nothing in the Services Contract and nothing in statements made by Ownership Solutions or Ownership Solutions Persons shall be construed as a promise, guarantee or warranty concerning the outcome of your matter. Such comments are expressions of opinion only.
- Current Law
The Services are provided in accordance with –
- our understanding of current professional practice and guidelines; and
- law and regulations in existence on the date on which advice is provided,
It is, however, possible that changes in the law and its interpretation may occur before our advice is acted upon. Ownership Solutions cannot accept responsibility for any changes in the law or its interpretation which occurs subsequent to our advice being delivered to you or which could not reasonably be known by us at that time.
Any draft documents which we provide will not constitute our definitive opinion.
Ownership Solutions, its directors, employees, agents, officers and professional advisors shall not, under any circumstances whatsoever, be liable for any loss, liability, injury, expense or damage (whether direct, indirect, special, incidental, or consequential) including, but not limited to tax losses of any nature whatsoever incurred by you or losses suffered by you as a result of employee strikes, or any other damages whatsoever suffered by you, your directors, employees, agents and officers or any third party, arising out of or in connection with the Services, and you hereby indemnify and hold Ownership Solutions, its directors, employees, agents, officers and professional advisors harmless in respect of any loss, liability, damage (whether direct, indirect or consequential) or expense of any nature whatsoever, which may be suffered by you, your directors, employees, agents and officers in any manner whatsoever or any third party as a result of, or which may be attributable, directly or indirectly, to the provision of the Services, as aforesaid.
For the avoidance of doubt, the provisions included in this paragraph headed ‘Disclaimer’ in favour of Ownership Solutions’ directors, employees, agents, officers and professional advisors shall constitute, and be construed as, a stipulation in favour and for the benefit of, such directors, employees, agents, officers and professional advisors.
The Services may include taxation or legal inaccuracies or typographical errors. This disclaimer shall automatically apply in its entirety to all improvements and/or amendments as they appear in the Services and any documents provided by Ownership Solutions in relation to the Services. It shall be your sole responsibility to evaluate the accuracy, completeness and usefulness of the Services and other information provided by Ownership Solutions.
Ownership Solutions does not warrant that the Services or any documents provided by Ownership Solutions in relation to the Services will be error free or that any defects will be corrected.
If you are dissatisfied with the Services or with any terms, conditions, rules, policies, guidelines or practices of Ownership Solutions in performing the Services, your sole remedy shall be to discontinue using the Services.
Notwithstanding the provisions of this paragraph headed ‘Disclaimer’, in the event that any Court, in respect of any action brought against Ownership Solutions by you, finds in favour of you, the maximum liability of Ownership Solutions, its directors, employees, agents, officers and professional advisors for all claims arising out of the services provided in connection with this letter of appointment shall be limited to an amount equal to the total fees charged for all services provided in connection with this letter of appointment. The maximum liability shall be an aggregate liability for all claims from whatever source and howsoever arising whether in contract, delict or otherwise.
- Exclusion and limitation of liability
The Services are provided to and for the benefit of you as our client, and you alone. Ownership Solutions accepts liability to you, and you alone. Neither Ownership Solutions nor any Ownership Solutions Person shall be liable to any other person as a result of you communicating our advice to them. You agree that you will not communicate our advice to any other person without our consent. Similarly, our name and opinions may not be used in connection with any prospectus, financial statement or other public document without our written consent. You agree that you will indemnify us and each Ownership Solutions Person against any liability incurred in any action brought against us and/or any Ownership Solutions Person as a result of you communicating our advice to any other person without our consent.
12 Conflicts Of Interest
- Due to the nature of our business, Ownership Solutions may act for parties engaged in a similar business to yours. When we are engaged in acting for you, we may be approached to advise another party or parties who are either direct competition with you, alternatively, whose interests are materially similar to yours through their material concern in matters to which the Services are related (“Conflicts”) and as such, Ownership Solutions shall be under no obligation to disclose this to you. Ownership Solutions, however, has and shall continue to have arrangements in operation designed to facilitate the protection of each of our client’s interests through the use of one or more of the following safeguards: separate advisory teams, geographical separation, operational independence, separate computer servers and/or separate email systems (“Safeguards”). You recognise and accept that Safeguards are maintained to restrict the flow of information within Ownership Solutions and maintain Chinese walls where necessary. You agree that because these Safeguards exist to protect both your interests and any confidential information which individuals at Ownership Solutions have learned in the course of acting for you, we may accept instructions from another party or parties, provided that in circumstances where Conflicts exist, we will take adequate measures and implement appropriate controls to ensure that Safeguards are in place.
- Where either Conflicts exist or a party has engaged Ownership Solutions to advise it before you have done so and circumstances subsequently change, we may consider that your interests are likely to be prejudiced and we may not be satisfied that the situation can be managed in a manner which safeguards the interests of each client. In that event, we reserve the right to terminate any Instruction or the Services Contract and we shall be entitled to do so, on notice taking effect on delivery, but shall consult you before we take such action.
- You agree that only information known to those individuals working on the matter to which the Services are related shall be taken into account in determining the extent of our responsibilities to you. You also agree that our obligation to disclose information to you shall not extend to information learned outside the scope of our appointment by you. You agree that we will not be under any obligation to disclose to you or to use on your behalf any information in respect of which we owe a duty of confidentiality to a third party.
13 Complaints And Suggestions
Please notify us immediately about any aspect of our Services that you may find unsatisfactory, or with any suggestions as to how we may improve our Services. If the relationship manager identified in the Appointment Letter is unavailable or fails to resolve the matter, please contact the chairman. We undertake to look into any complaint carefully and promptly and to do all we can to explain the position to you. If we have provided you a less than satisfactory service, we undertake to do everything reasonable to rectify the situation.
Ownership Solutions reserves the right to cease to act on your behalf if we consider this appropriate for any reason. If we propose to exercise this right, we shall as far as practicable or legally permissible consult with you and provide reasonable assistance in transferring the matter to another service provider. We will endeavour to give you at least 14 (fourteen) days notice of our intention to bring this appointment to an end, but we have the right to cease acting for you immediately if appropriate. We will charge you for all work completed up to the date of termination of the Services and any costs incurred by us in concluding or transferring the matter.
- Applicable law and jurisdiction
The agreement will 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 will be determined in accordance with such law. You irrevocably agree that any dispute which may arise out of or in connection with the Services Contract shall, on written demand by either us or you, be submitted to arbitration in accordance with the Arbitration Foundation of Southern Africa (“AFSA”) rules for commercial arbitration. Any such arbitration shall be administered by AFSA and be held in Johannesburg.
- Sub-contracting and Novation
- In appropriate circumstances, Ownership Solutions will use third parties to assist in providing any part of the Services. Any reference to our employees in the Services Contract includes these third parties; and
- If Ownership Solutions’ business or substantially the whole of Ownership Solutions’ business is transferred to another entity which is controlled by Ownership Solutions Persons, Ownership Solutions shall have the right to novate the Services Contract in favour of such entity by giving written notice to that effect to you.
- Force Majeure
Neither you nor Ownership Solutions can be held liable for any delay or failure to fulfil our respective obligations under the Services Contract as a result of causes beyond our reasonable control. Such causes include, but are not limited to, fire, floods, acts of God, acts and regulations of any governmental or supranational authority, war, riots, strikes, lock-outs and industrial disputes.
Any delays in enforcing the terms or conditions of the Services Contract will not affect or restrict any of the rights and powers arising under the Services Contract. Either party will only be taken to have released its rights under the Services Contract if it has confirmed such release in writing to the other.
- Severance of Terms
In the event that any Term hereof is held to be invalid, the remainder of the Terms will continue in full force and effect.
Any notice or other communication to be given under the Services Contract shall be given in writing and delivered by hand or by telefax or by email to our respective addresses, telefax numbers or email addresses appearing in the Appointment Letter (or such other address as may have been notified in writing). Notices shall be deemed to have been given in the case of delivery personally, on delivery and in the case of faxing, be presumed to have been received on the first business day following the date of sending of the telefax unless the contrary is proved.
- Entire Agreement
The Services Contract constitutes the entire agreement between Ownership Solutions and you with respect to the Services. Ownership Solutions and you both acknowledge that (respectively) we and you have not entered into this Services Contract on the basis of, and have not relied upon, any statement, representation, warranty or other provision, except those expressly included in this Services Contract. No remedy shall be available in respect of any untrue statement, representation or warranty other than a remedy available under this Services Contract.