ANNEXURE A: Terms of Business
The following terms of business apply to the engagement accepted by PREMIER VERIFICATION. All work carried out is subject to these terms except to the extent that changes are expressly agreed in writing.
- PREMIER VERIFICATION
Premier Verification (Pty) Ltd is a registered company under South African Law limited by guarantee with the Registration number 2004/009405/07. Premier Verification provides certain support and specialised services to its clients. Our principal place of business is at No. 5 Second Road, Hyde Park, Fountain Grove Office Park, 1st Floor, Building 1.
From time to time we may use the services of partners or staff from other associated firms to assist us in providing services to ‘Customer’. When we use the services of such partners or staff in connection with this engagement they are deemed to be acting as our servants or agents and not the partners, servants or agents of any other person and we shall assume liability for their activities as if they were in all respects our partners or staff.
References in these terms of business to “we”, “us” or “our” shall be construed accordingly.
- Our Fees and Invoicing Arrangements
Unless written agreement is reached to the contrary, our fees are based on the number and seniority of staff required, the degree of skill and responsibility involved and the resources required to complete the engagement. We will also charge for any disbursements incurred during the engagement and we will add VAT to charges and disbursements if applicable.
Any fee budget agreed with ‘Customer’ is necessarily based on the assumption that the information given to us at the time of quoting and the information required for our work is made available in accordance with agreed timetables, and that key executives and personnel are available during the course of our work. If delays or other unanticipated problems that are beyond our control occur this may result in additional fees for which invoices will be raised on the above basis; we will advise you of delays as they occur and will estimate their effect.
Invoices will be submitted to you by PREMIER VERIFICATION for services we provide and disbursements incurred on an interim basis as the work progresses. Invoices are payable immediately upon presentation. Unless specifically agreed to in writing by both parties, 50% of the Verification Fee is payable on acceptance of this agreement and prior to the on-site, and the balance of the Verification Fee is due and payable once the on-site has taken place. The final certificate will also not be released unless payment has been received in full.
In the event that invoices are not settled within 30 days of presentation, we shall be entitled to charge compound interest monthly at a rate of 2% above bank prime rate until the debt is settled. Premier Verification will also be entitled to forward a letter of demand using a third party demanding full and final payment. Thereafter, any outstanding accounts will be subject to default listing on a national credit bureau database and this information may be made available to the industry and affiliated businesses.
On payment of the outstanding debt the default listing will be adjusted to read “Paid in Full” in accordance with the provisions of Section 70(2) (d) of the national Credit Act, No 34 of 2005, until legislation demands complete removal.
Premier Verification, reserves the right to provide a national credit bureau with updated personal information. ‘Customer’ also consents that the Premier Verification may use a national credit bureau database for tracing, should the ‘Customer’ abscond.
- Our Responsibilities
We will provide the services described in our engagement letter (or such variations as may subsequently be agreed in writing between us) with reasonable skill and care in accordance with the professional standard expected of us and in a timely manner.
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 ‘Customer’s’ 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 ‘Customer’ (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. Our advice is provided for the purposes of this engagement and we disclaim any responsibility for the use of our advice for a different purpose or in a different context.
Unless otherwise directed by ‘Customer’, we may correspond by means of the Internet or other electronic media. Where we do so, whilst we will take reasonable steps to safeguard the security and confidentiality of the information transmitted, ‘Customer’ acknowledges that we cannot guarantee its security and confidentiality. While it is our policy to check all correspondence with anti-virus software, we cannot guarantee that transmissions will be free from infection.
If the communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects of electronic transmission you should request a hard copy of such transmission from us. If you wish us to password protect all or certain documents transmitted you should discuss this with us and we will make appropriate arrangements.
- ‘Customer’s’ Responsibilities
In relation to all our work for ‘Customer’ it is the responsibility of your staff to provide us with complete, accurate and timely information where we have requested this and to carry out any other obligations ascribed to ‘Customer’ or others under its control. We will not be responsible for any consequences that may arise from any delay or failure by you to do so and these may also result in additional fees for which invoices may be raised.
‘Customer’ remains responsible for any commercial decisions that it makes, and regard must be had to the restrictions on the scope of our work and to the large number of other factors, commercial and otherwise, of which ‘Customer’ and its other advisers are, or should be, aware by means other than our work.
- Information and Confidentiality
We confirm that where ‘Customer’ gives us confidential information we shall at all times keep it confidential and you agree that it will be sufficient compliance with our duty of confidence for us to take such steps as we in good faith think fit to preserve confidential information from misuse both during and after termination of this engagement.
If we knowingly misuse the confidential information, thereby causing ‘Customer’ loss, we shall be liable to ‘Customer’.
Without in any way detracting from the duty of confidentiality that we owe ‘Customer’, we reserve the right to act for your competitors or other clients, whose interests are or may be opposed to ‘Customer’.
The reports, letters, information and advice we provide to ‘Customer’ during this engagement are given in confidence solely for the purpose of this engagement and are provided on the condition that ‘Customer’ undertakes not to disclose these, or any other confidential information made available to ‘Customer’ by us during the course of our work, to any third party (being a party other than those to whom the report, letter, information or advice is addressed) without our prior written consent.
Where it is envisaged that reports, letters, information or advice given by us to ‘Customer’ will be provided to or used by a third party, ‘Customer’ will inform us so that we can stipulate terms regarding such provision or require the third party to enter into a direct relationship with us before any report, letter, information or advice is provided to that third party. Unless the third party agrees appropriate terms with us, we recognise no responsibility whatsoever other than that owed to ‘Customer’ in the context of this engagement as at the date on which our report or other advice is given to you.
Neither ‘Customer’ nor we will be prevented from disclosing confidential information which:
- Is or becomes public knowledge other than by a breach of an obligation of confidentiality
- Is or becomes known from other sources without restriction on disclosure; or
- Is required to be disclosed by law or any professional or regulatory (SANAS) obligation.
‘Customer’ recognises that, for the purposes of carrying out our responsibilities in this engagement, we shall not be treated as having notice of information that may have been provided to individuals within this company who are not involved in this engagement.
- Intellectual Property Rights
We retain all copyright and other intellectual property rights in everything developed by us either before or during the course of an engagement including systems, methodologies, software and know-how. We also retain all copyright and other intellectual property rights in all reports, written advice or other materials provided by us to ‘Customer’ although you will have the full right to distribute copies of these materials within your own organisation. This includes the use of Premier Verification’s unique logo or other unique marks. If ‘Customer’ wishes to distribute copies of these materials outside its own organisation, this will require our permission and the completion of Premier Verification’s “Marks Agreement Form.’
- Client Documents
If we are provided with custody of any documents belonging ‘Customer’, those documents will be retained during the course of our appointment (unless their return is requested); at the end of which they will be returned to ‘Customer’ unless separate arrangements have been made.
We reserve the right, where fees have been invoiced and payment is outstanding to us, to exercise a lien in respect of those outstanding fees over any documents belonging to ‘Customer’, which may be in our possession, in respect of any and all outstanding fees.
- Working Papers and Other Documents
We will retain our working papers and other documents produced by us in the course of our engagement. These documents are our property and ‘Customer’ has no right of access to them. Should ‘Customer’ wish to obtain access to these documents, we will consider, in our sole discretion, making them available to you for inspection on terms determined by us. Nothing contained herein may be construed as granting ‘Customer’ any right of access to these documents.
It is our normal practice to retain documents relating to any engagement for five years after the end of the relevant assignment. Thereafter, unless separate arrangements have been made, the documents may be destroyed without reference to ‘Customer’.
- Health and Safety
We acknowledge our statutory responsibility to co-operate with ‘Customer’s’ health and safety requirements, provided we are given notice of these. Whilst on ‘Customer’s premises our directors, staff and sub-contractors shall be afforded by ‘Customer’ the same protection for health and safety purposes as are due to its employees. If we are required by ‘Customer’ to enter the premises of a third party ‘Customer’ will procure that the third party also affords such protection to our directors, staff and subcontractors as is due to its employees.
- Our Liability
By engaging us ‘Customer’ agrees that any claim of any sort whatsoever arising out of or in connection with this engagement shall be brought only against us and that no claims in respect of this engagement will be brought personally against any persons involved in performance of this engagement, whether actual or deemed servants or agents of us or not or against any other associated firm or any partner or staff thereof.
- Limitation of Liability
Our liability (which, for the purposes hereof, will exclude liability for death or personal injury, or resulting from our fraud, or any other liability for which restriction or exclusion is prohibited by law) for the aggregate of all claims arising out of or in connection with this engagement during any annual period in respect of breach of contract or breach of duty or fault or negligence or otherwise (collectively referred to herein as “fault”) shall be limited to the lower of the two figures produced by the operation of the following two sub-paragraphs:
- a) Subject to the terms hereof, our liability in respect of fault arising out of or in connection with this engagement shall be limited in total to the estimated fee (or, if greater, the total amount of the fees charged by us to you under this engagement in the annual period during which the claims arise) to cover claims of any sort whatsoever (including interest and costs) arising in such annual period out of or in connection with this engagement.
- b) Subject to the terms hereof, our liability to you in respect of fault arising out of or in connection with this engagement shall be limited to that proportion of the loss or damage (including interest and costs) suffered by you, which is ascribed to us by a Court of competent jurisdiction or Arbitrator allocating a proportionate responsibility to us having regard to the contribution to the loss or damage in question of you or any other person based upon relative degrees of fault; it being a term of this engagement that the provisions of Section 1 of the Apportionment of Damages Act, 1956 will apply to all claims between us and “fault” and “loss or damage” as used herein shall respectively be deemed to fall within the meanings of “fault” and “damage” as contained in Section 1 of the Apportionment of Damages Act, 1956.
‘Customer’ undertakes that during the course of this engagement and for a period of six months following its conclusion it will not:
- a) solicit or entice away (or assist anyone else in soliciting or enticing away) any member of our professional staff with whom ‘Customer’ has had dealings in connection with this engagement during the 12 months immediately prior to its approach; or
- b) employ any such person or engage them in any way to provide services to ‘Customer’.
This undertaking shall not apply in respect of any member of our staff who without having been previously approached directly or indirectly by ‘Customer’ responds to an advertisement placed by you or on your behalf.
In the event of a breach of the terms of this undertaking which leads to the departure of an individual, ‘Customer’ will pay to the other party, on demand, a sum equivalent to 30% of the total annual remuneration package paid by PREMIER VERIFICATION to the individual prior to his or her departure. ‘Customer’ acknowledges that this provision is a fair and reasonable term intended to be a genuine assessment of the likely loss.
Where commissions are payable to us as a result of this engagement we will notify ‘Customer’ of the amounts at the time the transactions concerned are carried out.
We will not be liable to pay to ‘Customer’ any such commission paid to us but we may take it into account in determining our fee.
- Force Majeure
Subject to section 4 above, neither ‘Customer’ nor we shall be liable in any way for failure to perform our respective obligations under this engagement if the failure is due to causes outside the reasonable control of the party that has failed to perform.
- Termination / Withdrawal from Verification
Prior to the on-site, either party may terminate our services by notice in writing to the regular correspondence address of the other party marked for the appropriate contact. In the event of termination, fees and expenses incurred to the date of termination are payable by ‘Customer’.
Once the on-site has taken place and Premier Verification has concluded the scorecard based on the information verified, a certificate will be issued. Should Premier conclude that the scorecard or information provided for the verification process has been materially misstated, Premier will require the client to rectify the data. If the client refuses to do so, Premier will allocate a zero to that scorecard item. Should the client then dismiss the services of Premier or choose not to accept the certificate, the balance of the verification fee will still be due and payable. Premier Verification may not withdraw from the verification without notifying the DTI of the reasons for the withdrawal. (As per Section 20 of the DTI Verification Manual gazetted 18 July 2008).
Should ‘Customer’, not agree with the final scorecard presented, they should follow the Appeals / Complaints procedure and lodge an appeal / complaint with Premier Verification for further investigation.
In the occurrence of a deposit being paid and the files not being presented for verification within three months of the deposit payment date, Premier reserves the right to terminate the contract.
- Severance of Terms
In the event that any of the terms of business is held to be invalid, the remainder of the terms will continue in full force and effect.
- Governing Law and Jurisdiction
These terms of business shall be governed by and construed in accordance with the laws of the Republic of South Africa and any dispute arising out of this engagement or these terms shall be subject to the exclusive jurisdiction of the South African courts and the Tribunal constituted under the Consumer Protection Act 68 of 2008.
- Complaints and Appeals
‘Customer’ hereby accepts the process to lodge any complaint and or appeal on Premier Verification website (http://premierverification.com/appeal_complain/ ), for formal investigation. ‘Customer’ undertakes to first use these avenues to rectify any situation before using alternative measures. ‘Customer’ also understands that their appeal or complaint is required to be lodged within three days of certificate issue date.
- Validity of Proposal
This proposal is valid for 30 days from date of issue.