DIGA STANDARD TERMS AND CONDITIONS
BASIS OF ENGAGEMENT
It is agreed that where XERO (http://www.xero.com) shall be the online accounting platform then DIGA shall administer the XERO account. Insofar as is reasonably possible, the Client shall use XERO and the XERO add-ons as their basis for effecting digitally transactions in the normal course of the Client’s business.
Income, expense, debtor, creditor, purchase order, fixed asset, bank and contact events shall, insofar as is possible, be supplied to DIGA in a digital format. The Client has internet banking active for banks that already have XERO integration failing which the Client shall provide structured CSV bank feeds on a regular basis to be agreed.
Costs vary as a function of number of transactions and complexity of the business. DIGA may facilitate integration of legacy client software with XERO, should DIGA agree, and that such integration shall be agreed separately.
The Client shall maintain adequate bandwidth to ensure reasonable access to the internet. Employees of the Client requiring access to cloud applications (such as XERO) shall have web connected devices (laptops, pads or cell phones) that can run the latest, non-beta version of web browsers (either Chrome, Internet Explorer, Safari or Mozilla Firefox).
If tax services are being provided, the Client hereby authorizes DIGA to use SARS e-Filing to submit the Client’s SARS information and further agrees to the SARS e-Filing Terms & Conditions and expressly provides DIGA with the mandate that SARS require for DIGA to e-file the client’s return on the client’s behalf. These Terms & Conditions can be viewed at www.sarsefiling.co.za. The income tax return contains many questions relating to complex areas of the Act, such as, inter alia, transfer pricing, thin capitalization, tax residence status, foreign dividends, controlled foreign companies and capital gains. Due to the complexities involved, unless the client has significant in-house expertise, DIGA recommends that a tax specialist be consulted separately in respect of the impact of these provisions on the Client’s income tax position. In the event that a Tax Specialist is required the Parties shall enter into a separate written Agreement covering the cost and scope of the Tax Consultant’s Services.
To place both Parties in an informed position, each Party shall be obliged to make confidential disclosures to the other. The parties undertake to maintain complete confidentiality with regards to each other’s businesses, contacts, and associates which were made available by being party to this Agreement. Confidential Information received may only be used by the recipient party in connection with any ongoing business between the Parties. Any Confidential Information received may only be disseminated by the recipient party to its employees, agents, bankers, professional advisors or to such other persons requiring access to such Confidential Information to enable the Recipient party to arrive at a Commercial decision relating to this Contract. The parties agree not to circumvent each other, nor to disclose any commercially sensitive information obtained by them in the context of this Contract without the prior written approval of the disclosing party, to any third party or person other than the signatories of this Contract or persons mentioned in 6.4 above.
The Client shall be responsible for ensuring that, to the best of its knowledge and belief, the financial information and information surrounding base transactions whether used by the Client or for financial statements is reliable. The Client shall also be responsible to any users of financial information compiled by DIGA in terms of this agreement. The Client inter alia agrees to:
- Provide DIGA with complete and accurate source transactional data in digital format wherever possible. DIGA may, from time-to-time recommend appropriate digital tools to facilitate the transactional events.
- Timely supply additional detailed information where necessary in order for DIGA to deliver the agreed services.
- Store paper based source documents in a suitable environment in accordance with SARS and IFRS guidelines.
- Provide DIGA with access to stored paper based source documentation as may be required from time-to-time to enable DIGA to deliver the agreed services.
- Link electronic source documentation to transactional events within the XERO system or ecosystem.
- Maintain sufficient internal controls to ensure that the financial statements are free from material misstatement.
- Conduct its affairs in accordance with any and all applicable laws.
- Timely submit VAT returns on the understanding that all VAT claimed is claimable in terms of the VAT Act.
- Review and sign VAT or any other statutory documents before submission to SARS.
- Keep DIGA informed of all new contracts and/or relationships the Client has entered into which can impact digital data processing.
In relation to any tax and/or payroll services the Client further agrees: –
- To review and approve any correspondence and/or sign any applicable authorization forms, in relation to correspondence or formal objection to SARS prepared by DIGA on the Client’s behalf.
- To use DIGA’s postal address for all communications with SARS in respect of income tax affairs including correspondence, annual returns, provisional tax returns and assessments.
- To immediately forward to DIGA copies of any assessments, returns or correspondence that the Client receives directly from SARS.
- To maintain responsibility for the ultimate determination of the amount of the tax payments to be made to SARS. If tax calculations are included in the agreed services, DIGA shall prepare tax returns for the client’s review, signature and submission.
- It is the Client’s responsibility to process timely payment of the tax to SARS.
- DIGA shall not be held liable for any additional tax and interest resulting from the underestimate of taxable income for purposes of provisional tax or the late or non-rendition of returns (even if it is a nil return) by the due dates or cheques being rejected or payments being received later than the due date.
- That withholding taxes on accruals to non-residents and Skills Development Levy taxes are excluded from these services.
DISCLAIMERS AND LIMITATION
The maximum liability of DIGA for all claims from whatsoever cause arising out of the services set out in this Contract are limited to an amount equal to the annual fees or contract fee invoiced at the time of dispute. This maximum liability shall be an aggregate liability for all claims from whatever source and howsoever arising, whether in Contract, delict or otherwise. DIGA shall not be liable for any loss, damages, costs or expenses directly or indirectly incurred as a result of information supplied or not supplied by the Client ormisrepresentations, negligent or dishonest acts or omissions on the part of the Directors, Management, Employees or Agents of the Client.
The Client indemnifies DIGA and holds it harmless against all or any claims made against it by any party whatsoever in respect of any such loss, damages, costs or expenses and against the actual costs incurred by DIGA in defending such claims. The exclusion of liability in the previous clauses shall not apply to the extent that any liability arises out of acts, omissions or misrepresentations which are in any case criminal, dishonest or fraudulent on the part of DIGA’s directors, employees, or agents. In determining the liability of DIGA, a court or arbitrator shall limit such liability to that proportion of the loss or damage suffered by the client which is ascribed to DIGA by such Court or Arbitrator allocating a proportionate responsibility having regard to the contribution to the loss or damage in question of the Client or any other person based upon relative degrees of fault in terms of the provisions of Section 1 of the Apportionment of Damages Act of 1956 as amended from time to time.
The Apportionment of Damages shall apply to all claims between the Parties including but not limited to breach of Contract or gross negligence and damages or losses as may be sustained arising out of a breach of this Contract. All such damages shall be deemed to fall within the meanings of fault and damages as contained in Section 1 of the Apportionment of Damages Act, 1956.
In all or any of the undermentioned events, the innocent Party shall be entitled, without prejudice to any other claims which it may have, to terminate this Contract should the Defaulting Party commit any breach of any term and/or condition of this Contract and fails to remedy such breach within a period of 14 (fourteen) days after receipt of written notice requiring it to do so or the Defaulting Party repeatedly breaches any of the terms and/or conditions hereof in such a manner as to justify the innocent Party in holding that the other Party’s conduct is inconsistent with the intention or ability of such other Party to carry out the provisions of this Contract.
Any dispute arising from or in connection with this Contract shall be submitted to and decided by Arbitration before a single Arbitrator to be agreed upon. In the absence of Agreement as to the appointment of an Arbitrator, the Arbitrator shall be a retired Judge of the High Court of South Africa (Eastern Cape Division) appointed by the Chairperson of the Grahamstown Bar Council. The dispute shall be adjudicated in accordance with the provisions of the Arbitration Laws in force at the time being provided that:
- The Arbitration shall be held in East London and shall be informal.
- The Arbitrator shall be suited to the dispute.
- This shall not preclude any Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the Arbitrator.
In the event of any Party instructing its Attorneys to take measures for the enforcement of any of its rights under this Contract the defaulting Party shall pay on demand, all costs occasioned by their default on an Attorney and own Client basis as shall be lawfully charged by the Attorney of the successful Party. Each Party shall pay its own costs incidental to the negotiation and preparation of this Contract.
The PARTIES hereby choose as their Domicilium Citandi et Executandi the physical address stipulated on the face of the Engagement Agreement.
Any notice to either Party shall be addressed to it at its Domicilium and either, delivered by hand to a responsible person, or sent by prepaid registered post, facsimile transmission or email. Any notice to a Party, shall be deemed to have been received, unless the contrary is proved, if:
- Sent by prepaid registered post, on the 7th day after posting.
- Delivered by hand, on the date of delivery, if such date is a business day and delivery is during business hours or otherwise on the next business day.
- Sent by email, on the receipt of the electronic delivery notification, if such date is a business day and delivery is during normal business hours or otherwise on the next business day.
- Sent by facsimile or telefax transmission, immediately upon the issuance by the transmitting machine, of a report confirming the correct transmission of the document containing the notice if such date is a business day and delivery is during normal business hours or otherwise on the next business day.
Either party shall be entitled by notice in writing to the other, to change its Domicilium to a physical address in the Republic of South Africa. The change of address shall be effective 7 (seven) days after receipt of such notice. Notwithstanding that notice may not have been served on a party at its elected Domicilium, any notice actually received shall be deemed correct service in terms hereof.
Amendments: Unless expressly set forth otherwise in this Contract all amendments or modifications herein must be recorded in writing and signed by the duly authorised representatives of the parties.
Assignment/Cession: Unless stipulated otherwise in this Contract neither Party shall assign and/or cede its rights, duties or obligations in and to this Contract, either in whole or in part, without the prior written consent of the other Party first had and obtained.
Authority: The persons signing for and on behalf of the Parties hereto hereby warrant that they have the necessary authority and power to sign for and bind such Party.
Benefit of the Contract: This Contract shall also be for the benefit of and be binding upon the Successors in Title and permitted assigns of both Parties.
Binding Agreement: This Contract shall only be binding on both parties once it has been signed by the duly authorised signatory of each party unless stipulated otherwise in writing.
Consent: Where any provision in this Contract stipulates that the consent of either party is required such consent shall be in writing, shall not be unreasonably withheld and shall be given within 21 (Twenty-One) Days of the request failing which such consent shall be deemed to have been given on the 21st day of such request.
Entire Contract: This Contract contains all the terms and conditions agreed between the parties and supersedes any, prior or contemporaneous written proposals, statements, discussions, negotiations or Contracts. The parties acknowledge that they have not been induced to enter into this Agreement by any written representations or statements not expressly contained herein.
Force Majeure: In the event that either party shall be delayed, hindered or prevented from doing or performing any act or thing required herein by reason of strikes, lockouts, casualties, act of God, causus fortuitis, labour difficulties, inability to procure materials, failure of power, governmental regulations, riots, insurrection, war or other causes beyond the control of such defaulting party, the defaulting party shall not be responsible for any non-performance occasioned by such an event provided that the defaulting party has, after becoming aware of such a circumstance constituting that vis major, taken due care and all reasonable steps to avoid the occurrence of the non-performance.
Good Faith: Both parties undertake to act in Good Faith (in the spirit of Ubuntu) and to do whatever is necessary to give effect to the terms of this Contract according to its intent & Purpose.
Governing Law: The laws of the Republic of South Africa shall govern this Contract.
Relaxation: No relaxation or indulgence granted by either Party to the other in respect of any one or more of the terms and conditions contained herein shall prevent the indulging Party from fully exercising all its rights under these standard terms and conditions.
Separate Counterparts: Notwithstanding that this Contract may be executed in separate counterparts, none of which need contain the signatures of all of the Parties, each counterpart shall be deemed to be an original and all of which taken together shall constitute one agreement. In addition, this Contract shall further be valid and binding upon the Parties hereto, notwithstanding that one or more of the Parties may sign a facsimile copy hereof and whether or not such facsimile copy contains the signature of any other Party.
Severability: Provided that the invalid provisions are not material to the overall import of this Contract, if any portion of this Contract is held to be unenforceable or illegal, then that portion shall be deleted and the remainder of the Contract shall remain in full force and effect.
The Rule of Construction: In the event of ambiguity, this Contract shall be interpreted against the Party responsible for the drafting hereof (the contra Proferentum rule) shall not apply in the interpretation of this Contract as both Parties have contributed to the drafting of this Contract.
The use of the word “including” followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it. Unless inconsistent with the context:
- An expression which denotes any gender includes the other genders, a natural person includes an artificial person and vice versa and the singular includes the plural and vice versa.
- A Business Day shall mean any day other than a Saturday, Sunday or Public Holiday.
- The Signature Date means the date that the last Party signs this Agreement.
Waiver by either party, of any breach or of any provision of this Contract or warranty or representation herein, shall not be construed as a waiver of any subsequent breach of the same or any other provision. The failure to exercise any right herein shall not operate as a waiver of such right.