Terms and Conditions - Swift BEE Consulting

TERMS AND CONDITIONS

These standard terms and conditions apply to B-BBEE Consulting Services rendered/to be rendered by SWIFT BEE CONSULTING (PTY) LTD, 2020/719192/07 (“the Service Provider”) to you (“the Client”) pursuant to a letter that records the engagement (“the engagement letter”) enclosing these standard terms and conditions or incorporating them by reference.

DEFINITIONS AND INTERPRETATION

Definitions

In this document, unless the context otherwise requires, the following capitalised terms shall have the meanings assigned to them below and cognate expressions shall have corresponding meanings:

“Agreement” shall mean these standard terms and conditions, read together with the Engagement Letter and annexure(s) thereto;

“Effective Date” shall be the date of last signing of the Engagement Letter;

“Good Industry Practice” applying, in relation to the manner in which the Services are rendered, the standards, practices, methods and procedures conforming to applicable law, and exercising that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under similar circumstances;

“Parties” shall mean THE SERVICE PROVIDER and the Client, and any reference to “a Party” shall refer to one of the relevant Parties as required by the context;

“Services” the operational services to be provided by THE SERVICE PROVIDER to the Client as set out in the Engagement Letter.

Interpretation

This Agreement shall be interpreted according to the following provisions, unless the context requires otherwise:

References to the provisions of any law shall include such provisions as amended, re-enacted or consolidated from time to time in so far as such amendment, re-enactment or consolidation applies or is capable of applying to any transaction entered into under this Agreement.

References to “Parties” shall include the Parties’ respective successors-in-title and, if permitted in this Agreement, their respective cessionaries and assignees.

References to a “person” shall include an individual, firm, Practice, corporation, juristic person, Responsible Authority, and any trust, organisation, association or partnership, whether or not, having separate legal personality.

References to “clauses”, and “sub-clauses” are references to the clauses and sub-clauses of this Agreement.

References to any other contract or document shall include (subject to all approvals required to be given pursuant to this Agreement for any amendment or variation to or novation or substitution of such contract or document) a reference to that contract or document as amended, varied, novated or substituted from time to time.

Words in parentheses and italics appearing after a clause reference or a reference to a Schedule are inserted for ease of reference only. If there is any discrepancy between the clause reference and the words in parentheses and italics, the latter shall prevail.

The Parties acknowledge that each of them has had the opportunity to take legal advice concerning this Agreement, and agree that no provision or word used in this Agreement shall be interpreted to the disadvantage of either Party because that Party was responsible for or participated in the preparation or drafting of this Agreement or any part of it.

Words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter.

The number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day.

If any definition in clause 1.1 (Definitions) contains a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to such provision as if it was a substantive provision in the body of this document.

APPOINTMENT

The Client hereby appoints THE SERVICE PROVIDER, which appointment THE SERVICE PROVIDER accepts, to provide the Services and to exercise the Client’s respective rights, powers and duties in respect of the subject matter, as from the Effective Date and in accordance with the terms and conditions set out herein.

The Parties hereto expressly agree that this appointment is not exclusive in nature insofar as that THE SERVICE PROVIDER shall and may provide similar services to other companies and practices, regardless of whether such companies or practices’ business is similar to, or in competition with, the business of the Client.

CO-OPERATION, GOALS AND OBJECTIVES

Each Party shall co-operate with the other in the exercise and performance of their respective rights and obligations under this Agreement.

The parties confirm that the purpose of this Agreement is to ensure that the proper elements and commitments are in place to provide monthly B-BBEE Consulting services to the Client by the Service Provider.

The parties confirm that the goal of this Agreement is to obtain mutual agreement for the provision of B-BBEE Consulting services between the Service Provider and Client.

The parties confirm that the objectives of this Agreement are to:

provide clear reference to service ownership, accountability, roles and/or responsibilities.

present a clear, concise and measurable description of service provision to the Client.

match perceptions of expected service provision with actual service support and delivery.

DURATION

The Agreement and the rights and obligations of the Parties under the Agreement shall shall come into effect on the Effective Date and, unless terminated earlier in accordance with clause 11, shall continue in full force and effect.

GENERAL OBLIGATIONS OF THE SERVICE PROVIDER:

THE SERVICE PROVIDER shall, in the provision of the Services, avoid undue hindrance, interruption or interference with the operations of the Client or otherwise hinder the activities of the Client and its employees, save to the extent entitled to do so in terms of the Agreement or as may be reasonably necessary for the performance of the Services.

THE SERVICE PROVIDER shall not be relieved of any obligation, responsibility or liability under the Agreement by the appointment of any subcontractor to carry out any part of the Services.

THE SERVICE PROVIDER hereby agrees that it will appoint sufficient number of employees who will be dedicated (though not solely) to perform the Services as agreed upon between the Parties, having due regard in respect to the amount of work to be performed.

GENERAL RIGHTS AND OBLIGATIONS OF THE CLIENT:

The Client shall –

Without prejudice to the obligation of THE SERVICE PROVIDER to provide the Services, provide reasonable assistance to THE SERVICE PROVIDER in its performance of the Services, and specifically, to ensure as far as it may be reasonably possible from its end, a smooth integration and synchronization process to synchronize and integrate the activities of THE SERVICE PROVIDER and the Client.

Shall provide THE SERVICE PROVIDER with all information and documentation that may be required by THE SERVICE PROVIDER from time to time in order to provide the Services, including, but not limited to, such documentation or information as may be requested by THE SERVICE PROVIDER from time to time, as is considered necessary by THE SERVICE PROVIDER to fulfil its duties and obligations in terms of this Agreement.

Shall meet with THE SERVICE PROVIDER as and when necessary to enable THE SERVICE PROVIDER to comply with its obligations.

Shall inform THE SERVICE PROVIDER of its policies, procedures, protocols and directives as may be applicable to the Services and shall timeously inform THE SERVICE PROVIDER of any amendments thereto.

SERVICES

Provision of the Services

THE SERVICE PROVIDER shall provide the Services, the scope of which is set out in the Engagement Letter, in accordance with this Agreement, with effect from the Effective Date, for the duration of the Agreement.

Service Standards

THE SERVICE PROVIDER shall carry out the Services (each as a separate and distinct obligation) –

In accordance with Good Industry Practice.

In a manner that complies with and meets the requirement of all applicable Law.

In compliance with the reasonable policies, procedures, protocols and directives of the Client (as may be amended from time to time) as indicated.

So that all persons employed, in connection with the performance of the Services, have the necessary skills and experience as required by their respective professions, trades and callings and taking into account their roles and responsibilities in relation to the Services.

So that all aspects of the Services are supervised, by sufficient numbers of persons having adequate knowledge of such matters, for the satisfactory performance of the Services.

In accordance with the provisions of the Agreement.

CHANGE IN SCOPE OF SERVICES:

It may be necessary, from time to time, to change the scope of Services, to be provided by THE SERVICE PROVIDER, to the Client. It is expressly agreed that:

8.1 Should any party to the agreement, wish to change the scope of services, provided for herein, the party wishing to do same, shall inform the other party, when the parties meet to review the Agreement as per clause 15 below, that it wishes to amend the scope of Services, in detail, stating which services are to be changed or added to the provisions of the Agreement and provide sufficient reasons for requesting same.

8.2 Thereafter, any changes made or added in respect of the Services, in terms of the Agreement, shall only take effect, if both parties agree thereto, in writing and undersigned by both authorised representatives of the parties, clearly stating the date on which these changes or additions to the scope of Service will be implemented and effected, and therefore form part of the Agreement.

PERFORMANCE MONITORING

THE SERVICE PROVIDER shall be responsible to monitor its performance in the delivery of the Services, and shall implement appropriate monitoring, quality control and management procedures in accordance with Good Industry Practice in respect of the Services, including such monitoring procedures as the Parties may from time-to-time agree on.

THE SERVICE PROVIDER shall regularly review and assess its management and mitigation of Failures, so as to implement improvements in the provision of the Services and the reduction of Failures.

On the notification of any Failure or complaint regarding the quality of Services, THE SERVICE PROVIDER shall, attend to such notification with the speed and urgency appropriate to the nature of the Failure or complaint.

FEES

The Client’s obligations relating to payment of THE SERVICE PROVIDER’S fees is as set out in the Engagement Letter.

TERMINATION

Non-default termination

The Agreement shall endure indefinitely until a Party hereto elects to voluntarily terminate the Agreement, by providing 30 (thirty) calendar days’ written notice to the other Party, indicating such termination.

It is recorded that neither Party shall be entitled to any compensation or damages on termination of the Agreement in accordance with clause 11.1.1. However, all outstanding invoices having been duly received in terms of the Agreement, but not yet paid, must still be settled by the Client.

Breach

Should any Party, (“the defaulting party”) breach any term or condition of the agreement and fail to remedy such breach within ten (10) business days of date of receipt of notification to do so, the other Party shall be entitled (but not obliged) to:

Claim specific performance in terms of the Agreement, together with damages; or

Cancel the Agreement and claim damages.

Without limiting the generality of clause 11.2.1, a material breach shall include either Party being provisionally or finally wound-up or being placed under a provisional or final order of liquidation or business rescue proceedings.

In the event of breach of the agreement, the defaulting party will be liable for payment of all charges and expenses of whatsoever nature, including, but without derogating from the generality of the aforementioned, attorney fees on a scale as between attorney and own client, collection commission and tracing fees incurred by the creditor in securing or endeavouring to secure fulfilment of the obligations.

Survival

The terms of clauses 13 and 14 shall survive termination of the Agreement and will remain in full force and effect indefinitely.

WARRANTIES AND UNDERTAKINGS

The Client warrants that –

12.2.1 The obligations of the Client under the Agreement are legal, valid and binding and enforceable against it in accordance with the terms of the Agreement.

12.2.2 It has taken all necessary actions to authorise the execution of the Agreement.

12.2.3 It has not knowingly omitted to disclose any material information in its possession or under its control relating to the Services.

CONFIDENTIALITY

Confidential information shall mean all information which the receiving party may receive or acquire from the disclosing party, and includes, without limiting the generality of the term: –

information relating to the disclosing party’s strategic objectives and planning for both its existing and future Information Technology needs;

information relating to the disclosing party’s business activities, business relationships, products, services, customers and clients;

information contained in the disclosing party’s software and associated material documentation;

technical, scientific, commercial, financial and market information, know-how and trade secrets;

data concerning business relationships, architectural information, demonstrations, processes and machinery;

plans, designs, drawings, functional and technical requirements and specifications;

agreements which exist at the time of revealing the contents thereof to the receiving party, the contents of all possible future agreements irrespective of whether the aforementioned information that is revealed is applicable to technical, business or financial aspects of the party; and

information concerning faults or defects in the disclosing party’s systems, hardware and/or software or the incidence of such faults or defects; but excluding information or data which: –

is at the time of disclosure to the receiving party lawfully and without breach of any confidentiality obligations, within the public domain;

is, at the time of such disclosure, already within the possession of the receiving party, or it has been independently developed by the recipient; or

is obliged to be produced under order of a court or government agency of competent jurisdiction, or in terms of statute;

provided that the onus shall at all times rest on the receiving party to establish that such information falls within the exceptions contained in clauses 13.1.8.1 to 13.1.8.3 inclusive and provided further that information disclosed in terms of the agreement will not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in a party’s possession;

Both parties shall keep all confidential information obtained by them in the context of the agreement confidential and shall not divulge it without the written approval of the other Party.

The Parties shall –

use all reasonable efforts to maintain the confidentiality of the information and materials, whether oral, written or in any form whatsoever, of the other that may be reasonably understood, from legends, the nature of such information itself and/or the circumstances of such information’s disclosure, to be confidential and/or proprietary thereto or to third parties, to which either of them owes a duty of nondisclosure;

take reasonable action in connection therewith, including without limitation at least the action that each takes to protect the confidentiality of its comparable proprietary assets;
to the extent within their respective possession and/or control, upon termination of the agreement for any reason, immediately return to the provider thereof all Confidential Information not licensed or authorized to be used or enjoyed after termination or expiration hereof, and

with respect to any person to which disclosure is contemplated, require such person to execute an agreement providing for the treatment of Confidential Information set forth in this clause 13. The foregoing shall not require separate written agreements with employees and agents already subject to written agreements substantially conforming to the requirements of this Section nor with legal counsel, certified public accountants, or other professional advisers under a professional obligation to maintain the confidences of clients.

All Confidential Information delivered pursuant to the Agreement shall be and remain the property of the disclosing Party, and any documents containing or reflecting the Confidential Information, and all copies thereof, shall be promptly returned to the disclosing Party upon written request, or destroyed at the disclosing Party’s option. Nothing herein shall be construed as granting or conferring any rights by license or otherwise, express or implied, regarding any idea made, conceived or acquired prior to or after the Effective Date, nor as granting any right with respect to the use or marketing of any product or service. The Parties shall use the Confidential Information only for the Business Relationship.

DISPUTE RESOLUTION

The dispute resolution procedure contained in this clause 14 (“Dispute Resolution Procedure”) shall apply to any dispute, claim or difference between the Parties arising out of or relating to the Agreement (“a dispute”).

A dispute will not be deemed to be a dispute until one of the Parties has provided a written notice conveying the nature and scope of the dispute to the other Party.

All disputes shall first be referred to a mediation committee consisting of the Business Relationship manager and a person appointed by the Client to act on its behalf (“Mediation Committee”) for resolution. An agreement reached by the Mediation Committee shall be reduced to writing and shall be binding on the Parties.

If the Parties have been unable to resolve any dispute within 10 (TEN) business days of referral to the Mediation Committee, either Party may refer the matter for arbitration.

The arbitration shall be conducted in accordance with the provisions of this clause 14, and shall also be guided by the provisions of the Arbitration Act, 1965 (Act No 42 of 1965, as amended from time to time), provided that –

a single arbitrator shall be appointed;

the parties shall agree as to the identity of the arbitrator, failing which the arbitrator shall be a practicing counsel or attorney of not less than 10 (ten) years standing agreed upon by the parties within 10 (ten) days after the date on which the arbitration is called for.

The arbitration proceedings shall take place in Pretoria at a venue and time to be determined by the arbitrator.

The arbitration proceedings shall be held informally and in a summary manner, and all procedural requirements and formalities shall be determined by the arbitrator. In determining such formalities and procedure, the arbitrator does not need to observe the normal strict rules of evidence or usual formalities of procedure.

The decision of the arbitrator shall be final and binding on the Parties.

The cost of the arbitration proceedings shall be borne by the Parties as decided by the arbitrator.

Notwithstanding the provisions of this clause 14, any Party shall be entitled to approach a competent court of law having jurisdiction to obtain any urgent relief which may be required by such Party.

PERIODIC REVIEW

The parties hereto agree to review the terms of the Agreement at least once per fiscal year, however, in lieu of such review, the current Agreement will remain in full force and effect.

The Business Relationship Manager shall be responsible for facilitating regular reviews of the Agreement.

FORCE MAJEURE

The SERVICE PROVIDER shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the SERVICE PROVIDER or any other party), failure of a utility service or transport or telecommunications network, acts of God, war, riot, pandemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of SERVICE PROVIDERS or sub-contractors, provided that the Client is notified of such an event and its expected duration. The SERVICE PROVIDER shall, however, endeavor to mitigate any disruption that may caused by the event(s) listed in this clause 16, in so far as it is able to reasonably do so.

PROTECTION OF PERSONAL INFORMATION ACT

“Personal Information” means personal information as defined in the Protection of Personal Information Act 4 of 2013, as amended from time to time, including any Regulations issued in terms of that Act (‘POPIA’).

Personal Information includes special personal information as defined in POPIA.

Words used in this clause will have the same meaning as the definition of that word in POPIA.

In terms of POPIA, the Service Provider requires the Client’s consent to obtain, collect, process and otherwise deal with the Client’s Personal Information as envisaged in the Act, for the following purposes:

To provide the Services;

For recordkeeping purposes;

In connection with legal proceedings;

Providing communications to clients in respect of the services rendered;

In connection with and to comply with legal and regulatory requirements or when it is otherwise allowed by law;

For marketing purposes in order to ensure that the Service Provider’s products and services remain relevant to its clients and potential clients;

For all such other purposes in order to protect the Service Provider’s rights.

By signing the Engagement Letter, the Client confirms its consent to the processing of its Personal Information.

The Service Provider undertakes to comply with the provisions of POPIA in its processing of Personal Information. In particular, the Service Provider undertakes to comply with the provisions of POPIA insofar they pertain to:

the lawful processing of Personal Information;

the rights of data subjects;

the retention, destruction and restriction of records containing Personal Information;

safeguarding the integrity of Personal Information;

notifying the Client of security compromises; and

the data subject’s rights as they relate to direct marketing.

The Client warrants that it has all necessary rights to provide the Personal Information to the Service Provider for the processing to be performed in relation to the Services, and that one or more justification grounds set forth in POPIA support the lawfulness of the processing.

The Service Provider shall treat all Personal Information as confidential and it shall inform all its employees, agents and/ or approved sub-contractors engaged in processing the Personal Information of the confidential nature of the Personal Information. The Service Provider shall ensure that all such persons or parties have signed an appropriate confidentiality agreement, are otherwise bound to a duty of confidentiality, or are under an appropriate statutory obligation of confidentiality.

MISCELLANEOUS

Save as expressly permitted hereunder, a Party shall not, without the prior written approval of the other Party, which shall not be unreasonably withheld, assign, cede, delegate, transfer or otherwise dispose of any right or obligation under the Agreement to any other person.

THE SERVICE PROVIDER shall not subcontract with any person for the carrying out of any of its obligations under the Agreement, without, in each case, the prior written consent of the Client, which consent shall not be unreasonably withheld or delayed.

No provision of the Agreement (including, without limitation, the provisions of this clause) may be amended, substituted or otherwise varied, and no provision may be added to or incorporated in the Agreement, except (in any such case) by an agreement in writing signed by the duly authorised representatives of the Parties.

Any relaxation, indulgence or delay (together “Indulgence”) by either Party in exercising, or any failure by either Party to exercise, any right under the Agreement shall not be construed as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right.

Except where expressly provided to the contrary in the Agreement, the Agreement constitutes the entire agreement between the Parties in connection with its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of the Agreement.

The Agreement may be executed in any number of identical counterparts, all of which when taken together shall constitute one agreement. Any single counterpart or a set of counterparts taken together which, in either case, are executed by the Parties shall constitute a full original of the Agreement for all purposes.

All notices and any other communications whatsoever (including, without limitation, any approval, consent, demand, query or request) by either Party in terms of the Agreement or relating to it shall be given in writing and sent by registered post, or delivered by hand, or transmitted by facsimile or electronic mail to the recipient Party at its relevant address set out below:

if to THE SERVICE PROVIDER, at:

Address: 261 Alpha Street, Sinoville, Pretoria, 0182

Postal address: 261 Alpha Street, Sinoville, Pretoria, 0182

Electronic mail address: gert@swiftbeeconsulting.co.za

Marked for the attention of: Gert Moller

if to the Client, at the address(es) set out in the Engagement Letter.

Either Party may, by written notice to the other Party, change any of the addresses at which, or the designated person for whose attention those notices or other communications are to be given.

Any notice or other communication given by any Party to the other Party which –

is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the addressee on the 7th (SEVENTH) day after the date of posting; or

is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery; or

is transmitted by electronic mail to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have received by the addressee on the date of transmission as reflected on the sender’s electronic mail records.

The Parties choose their respective physical addresses in clause 18.7 as their respective domicilia citandi et executandi at which all documents relating to any legal proceedings to which they are a party may be served. If that address is changed to another address which is not a physical address in the Republic of South Africa, then the original address shall remain the domicilium citandi et executandi of the relevant Party until it nominates a new physical address within the Republic of South Africa in writing, to be its new domicilium citandi et executandi.

Nothing in the Agreement shall be construed as creating a partnership or a contract of employment between the Parties.

The Parties agree to perform, or procure the performance, of all further things, and execute and deliver (or procure the execution and delivery) of all further documents, as may be required by Law or as may be desirable or necessary to implement or give effect to the Agreement and the transactions contemplated therein.

If any provision, or portion thereof, of the Agreement is, or becomes, invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect.

The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of the Agreement, shall not apply.

THESE TERMS AND CONDITIONS

The terms and conditions contained herein, together with the Engagement Letter and attachments constitute the service contract. By signing the Engagement Letter, you agree to be bound to these terms and conditions.

These terms and conditions will remain in effect for perpetuity unless it is terminated, amended or suspended.

Should the content not correspond with your view of our terms of engagement, we will gladly discuss this matter further with you.

We reserve the right to amend these terms and conditions from time to time, as may be required. Any new version of the terms and conditions will be conveyed via electronic mail with the date on which it will become effective. It is your obligation to check your emails on a regular basis in order to determine whether any amendments have been made.

We wish you successful trading and request that you communicate with us should you have any queries regarding the above.

Head Office

Site Links

Navigation

Ⓒ 2021 - All Rights Are Reserved