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CAVEAT LEGAL (PTY) LTD
RETAINER TERMS

A  It is recorded that you, the undersigned client, have approached Caveat Legal (Pty) Ltd (“Caveat”) to procure consultants for the provision of legal services to you on a retainer basis.

B  Your relationship with Caveat, including, without limitation, the procurement of all / any consultants by Caveat for you or any person associated to you will be solely governed by the terms and conditions set out in this agreement (the “Retainer Terms”).

1. SERVICES

1.1 Caveat will put forward one or more of the consultants from its panel (the “consultant” or “consultants”, as the case may be) to perform legal, related or otherwise agreed services (the “services”), and will introduce him/her/them to you.

1.2 The consultants will provide the services to you directly, as independent contractors. You will appoint each consultant on the terms and conditions in the Consultants Terms set out below.

2. RETAINER FEE

As remuneration for its recommendation and introduction, and for the services carried out by the consultants, you will pay to Caveat a fixed monthly fee for the package selected by you in the online sign-up form/by email (the ‘Retainer Fee’).

3. INVOICING AND PAYMENT PROCEDURE

3.1 Retainer Fees:

3.1.1 At the beginning of each month, Caveat will invoice you in respect of the Retainer Fee for that month, which will be inclusive of:

3.1.1.1 the Base Fee due to the consultant/s (which Caveat will invoice and collect for and on behalf of the relevant consultants);

3.1.1.2 the Service Fee due to Caveat for its recommendation and introduction; and

3.1.1.3 any VAT chargeable thereon.

3.2 You will pay the gross fee (being the sum of the amounts referred to in 1.1 above) without deduction or set off monthly in advance by debit order on the first day of every month.

3.3 You authorise Caveat or its agent to issue and deliver payment instructions to your banker for collection against your dislcosed account on condition that the amounts of such payment instructions adhere to the package amount selected by you (and increased on notice to you as set out in paragraph 3.7), until these Retainer Terms are terminated as set out in paragraph 9.

3.4 In the event that the payment day falls on a Sunday, or recognised South African public holiday, the payment day will automatically be the preceding ordinary business day.

3.5 You acknowledge that all payment instructions issued by Caveat or its agent will be treated by your above-mentioned bank as if the instructions have been issued by you.

3.6 You agree that although these terms may be cancelled by you, you will not be entitled to any refund of amounts which we have withdrawn while these terms were in force, if such amounts were legally owing to us.

3.7 Retainer Fees will be subject to an annual increase on 1 March each year, from 1 March 2021. You will be notified of the amount of the annual increase by 31 January each year, which notification will constitute an agreed variation of these Retainer Terms.

3.8 Out-of-Retainer Fees:

3.8.1 At the end of each month, Caveat will invoice you in respect of any Out-of-Retainer Fees incurred that month for work requested and authorised by you, which will be inclusive of:

3.8.1.1 the Base Fees due to the consultant/s (which Caveat will invoice and collect for and on behalf of the relevant consultants);

3.8.1.2 the Service Fee due to Caveat for its recommendation and introduction; and

3.8.1.3 any VAT chargeable thereon

3.9 You will pay the gross fee (being the sum of the amounts referred to in 3.1 above) without deduction or set off within 30 days of such invoice.

3.10 Where international transfer costs are levied on your payment to Caveat, these costs will be for your account.

3.11 Caveat’s invoicing and collection of amounts due to consultants is for the purpose of convenience to all parties and will in no way detract from 1.

4. EXCLUSIVITY

4.1 You will not use the consultants for the provision of any further work or services without furnishing Caveat with advance notification thereof.

4.2 Any further work or services undertaken by the consultants for you will be governed by the Consultants Terms and these Terms of Service. In the event of a conflict between the two, the Consultants Terms will take precedence to the extent of the conflict only.

5. PLACEMENT FEE

5.1 Should you appoint a consultant as an employee or to a like position within your organisation or that of any person associated to you, you will be liable to pay Caveat a placement fee reckoned at 21% (twenty one percent) of the consultant’s gross annual remuneration as at the date of such appointment, which placement fee shall be payable within 10 (ten) working days of his/her appointment by you. No termination of that appointment or variation of its terms will entitle you to any repayment of the placement fee.

5.2 This clause will survive the termination of this agreement (whether in terms of 6 below or by cancellation for breach), and will apply for 12 (twelve) months after its termination.

6. TERMINATION

6.1 Subject to 4 below, either party may terminate this agreement on 30 (thirty) days written notice to the other party.

6.2 If a consultancy relationship is terminated for any reason, this agreement does not, for the avoidance of doubt, terminate automatically and will remain of full force and effect until terminated by either party in terms hereof.

7. LIMITATION OF LIABILITY AND INDEMNITY

7.1 Notwithstanding anything to the contrary which may be contained in these Terms of Service or Consultants Terms, Caveat will not be liable for any direct or indirect (including consequential) loss, damage, costs and / or expenses of any nature whatsoever which you may suffer or incur as a consequence of, or which may arise from or be attributable to:

7.1.1 the services or any other work performed by a consultant;

7.1.2 any act or omission on the part of a consultant; and/or

7.1.3 any breach, fault or negligence on the part a consultant.

7.2 You hereby indemnify Caveat and hold it harmless in respect of any claims brought against it or a consultant, employee or officer of Caveat, by a third party for loss, damage, liability, costs and / or expenses of whatsoever nature incurred as a consequence of or arising from or attributable to the services or otherwise in the implementation of this agreement.

7.3 If, notwithstanding 1 and 7.2, a court of competent jurisdiction finds that Caveat or its employees, officers or agents are liable to you, such liability will be limited to the amount recovered in respect thereof by Caveat or the consultants in terms of the Caveat professional indemnity insurance policy.

8. INFORMATION PROVIDED TO CAVEAT

8.1 For the purposes of 8 and 1, any reference to “information” will mean “personal information” as defined in the Protection of Personal Information Act (Act No. 4 of 2013), regardless of form, insofar as such information relates to you, your business or affairs, employees, directors, clients, suppliers and / or third parties.

8.2 Caveat will require information from you from time to time to provide you with the services you require and you undertake, subject to 4, to provide or arrange access to such information for Caveat as and when Caveat determines necessary. This information will only be used by Caveat for invoicing and other administrative purposes (where such information relates to your contact details and invoicing information); for the purposes of identifying consultants for possible selection by you and enabling consultants selected by you to provide the services you require; and / or for the purposes of conducting its business and commercial activities.

8.3 Unless otherwise agreed between you and Caveat and subject to these terms, Caveat will treat information provided by you in terms of this clause 8 as confidential.

8.4 You warrant that you will at all times have the necessary authority, permissions and / or licences to provide information in terms of 2, including but not limited to authority, permissions and / or licences to provide information relating to third parties.

8.5 Caveat will use the information provided by you in terms of 2 for the purposes set out therein and retain such information in whatever form until such time that you request in writing the destruction or deletion thereof.

8.6 Caveat will use your contact details to provide you with quarterly newsletters outlining the services it and its consultants provide and any legal developments that may be of interest, until such time as you advise it otherwise in writing or unsubscribe from its mailing list.

8.7 All title, copyright and any other intellectual property in any documents of whatsoever nature generated or amended by Caveat as a result of the provision by it of the services will only pass to you upon receipt by the consultants and / or Caveat (as the case may be) of payment of all fees and disbursements which may be owed or owing, in full, without set-off or derogation, in accordance with these Terms of Service.

8.8 You accept that information that Caveat collects about you may be:

8.8.1 stored and processed in and transferred between any of the countries in which it operates in order to enable it to process such information in accordance with these Terms of Service; and

8.8.2 transferred to or between various countries internationally as a consequence of Caveat using information technology hosted or operated by a third party in or from such countries to store and/or process any information in its possession or under its control, which countries may not have data protection laws that are equivalent to those in force in the jurisdiction in which you reside. Caveat will, as far as reasonably practicable in the circumstances, use information technology hosted or operated by a third party in or from countries whose data protection laws are equivalent to those in force in the jurisdiction in which you reside.

8.9 This clause 8 will survive the termination or cancellation of these Terms of Service for any reason whatsoever.

9. GENERAL

9.1 Client Listing You consent to Caveat listing you as a client on its website, which listing may include your company name and logo and / or a testimonial provided by you in respect of the services. Caveat will change or remove the listing upon receipt of a written request from you to this effect.

9.2 Severance If any provision of these Terms of Service, which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

9.3 Entire agreement These Terms of Service constitute the entire agreement between the parties in regard to its subject matter. Neither of the parties will have any claim or right of action arising from any undertaking, representation or warranty not included in these Terms of Service.

9.4 Variations No agreement to vary, add to or cancel these Terms of Service will be of any force or effect unless agreed to in writing by or on behalf of both parties.

9.5 Survival of Rights, Duties and Obligations Termination of these Terms of Service for any cause will not release either party from any liability which at the time of termination has already accrued to the other party, whether in accordance with these Terms of Service or the related Consultants Terms, or which thereafter may accrue in respect of any act or omission prior to such termination.

9.6 Electronic signatures
The parties agree that this agreement may be electronically signed. The parties agree that the electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.

Consultants TERMS

A  On your, the undersigned client’s request, Caveat Legal (Pty) Ltd (“Caveat”) will introduce you to consultant/s from its panel (“consultants”), who will provide legal, related or otherwise agreed services (“the services”) to you as independent contractors in accordance with these terms (the “Consultants Terms”) (which will govern all and any services provided to you or any person associated to you by any consultant).

1. Relationship between the parties

1.1 On your request, Caveat will put forward one or more consultants to perform the services. On your selection and approval of a consultant, these Consultants Terms will apply to your relationship with any and all such consultants.

1.2 No employment relationship will come into existence between you and the consultants, and they will act as independent contractors to you. The Basic Conditions of Employment Act No. 75 of 1997 (“the BCEA”), the Labour Relations Act No. 66 of 1995, as amended (“the LRA”) and all other Acts of Parliament and / or Regulations that regulate the relationship between employers and their employees, will not be applicable to and will have no bearing upon the relationship between you or the consequences thereof.

1.3 The consultants will be responsible for their own income tax and other related taxes with respect to all compensation payable in terms of these Consultants Terms and they will not be entitled, or eligible to participate in any benefits or privileges provided by you to your employees.

2. CONSULTANTS’ OBLIGATIONS

The consultants will, while performing the services:

2.1 adhere to the reasonable instructions as given by you from time to time;

2.2 maintain the necessary skills and experience to perform the services, save where they advise you that other specialised services and / or advice (of a legal nature or otherwise) are required;

2.3 work at your premises or at other locations as agreed with you and as necessary;

2.4 adhere to the strictest confidentiality with regards to all aspects of the services;

2.5 maintain professional standards of conduct in relation to the services;

2.6 be solely liable and responsible (to the exclusion of Caveat) for:

2.6.1 the proper performance of the services; and

2.6.2 the administration of their own business affairs.

3. YOUR OBLIGATIONS

You will:

3.1 provide the consultants with clear and reasonable instructions in relation to the services;

3.2 provide the consultants with all information and documents reasonably required by them to carry out the services (subject to 7 below);

3.3 provide the consultants with the necessary resources (as defined in 1 below), finance and / or office equipment as agreed between you which may be required by them to perform the services;

3.4 provide the consultants with parking at your premises for the days / times required by them; and

3.5 make payment in accordance with 4 below.

3.6 You will not procure the provision of any services from the consultants other than in accordance with these Consultants Terms and will inform Caveat in advance of your intention to procure any further services. Any such further services will be governed by these Consultants Terms, whether or not you have complied with the said obligation to inform Caveat thereof.

4. PAYMENT

4.1 For the duration of these Consultants Terms, the consultants will keep accurate records of the services rendered, including time spent and disbursements incurred in doing so.

4.2 You will be charged the fixed Retainer Fee, and where requested and authorised by you, Out-of-Retainer Fees comprised either of an hourly rate (which is increased in March each year) multiplied by the number of hours spent by the consultant/s on the work or an agreed fixed fee.

4.3 Caveat will invoice you at the beginning of each month, in respect of the Retainer Fee and at the end of every month for Out of Retainer Fees (if any).

4.4 You will pay the gross Retainer Fee without deduction or set off by debit order monthly in advance on the first day of every month. You will pay the gross Out-of-Retainer fees without deduction or set off within 30 days of invoice.

4.5 Any regular payment of such monies, whether by debit order, EFT, cheque or via payroll, will not constitute a monthly salary in respect of the consultants, nor create any expectation or perceptions of being such.

4.6 Apart from the amounts referred to in 3, the consultants will not be entitled to receive any further monies or any benefits of whatsoever nature from you arising from the services in accordance with these Consultants Terms.

5. BREACH
Should either party commit a breach of any provision of these Consultants Terms and fail to remedy such breach within 7 (seven) days of receiving written notice from the other party requiring it to do so, then the party aggrieved by such breach will be entitled, without prejudice to its other rights at law, or in terms of 6 below, to claim specific performance and / or damages.

6. TERMINATION

6.1 Either party may, in its sole discretion, terminate the services, on no less than 10 (ten) working days’ written notice to the other party.

6.2 Subject to 6 below, termination by notice in accordance herewith will not create any rights of renewal or consideration for any periods not completed, or any related obligations.

7. RESOURCES

7.1 The consultants acknowledge that your resources, including servers, computers, work stations, monitors, printers, telefax machines, telephones, postal services, e-mail facilities and internet facilities (“the resources”) are for conducting your business.

7.2 The consultants will have no expectation of privacy in relation to the use of the resources provided by you.

7.3 The consultants understand and accept that you may, at your discretion, monitor their use of the resources and intercept, acquire, read, view, inspect, record and / or review any and all communications created, stored, transmitted, spoken, sent, received or communicated by the consultant on, over or in the resources or otherwise. The consultants hereby expressly consent to you doing so.

8. INFORMATION EXCHANGED BETWEEN YOU AND THE CONSULTANTS

8.1 For the purposes of 8, any reference to “information” will mean “personal information” as defined in the Protection of Personal Information Act (Act No. 4 of 2013), regardless of form, insofar as such information relates to you, your business or affairs, employees, directors, clients, suppliers and / or third parties.

8.2 The consultants will require information from you from time to time to provide you with the services you require and you undertake, subject to 4, to provide or arrange access to such information for the consultants as and when necessary. You accept that this information will only be used by the consultants to enable them to provide the services that you require.

8.3 Unless otherwise agreed between you and the consultants in writing and subject to these Consultants Terms, the consultants will treat information provided by you in terms of this clause 8 as confidential.

8.4 You warrant that you will at all times have the necessary authority, permissions, and / or licences to provide information in terms of 2, including but not limited to authority, permissions and / or licences to provide information relating to third parties.

8.5 You undertake to notify the consultants in writing of any information provided by you in terms of 2 that is inaccurate, irrelevant, excessive, out of date, incomplete, misleading or obtained unlawfully and that needs to be corrected or deleted (“defective information”). Upon receiving such written notification, the consultants will correct or delete the defective information and, if necessary, inform Caveat accordingly. You accept that the consultants cannot be held responsible for using defective information where they are not aware of the nature and extent of the defects in such information.

8.6 You consent to the consultants using the information provided by you in terms of 2 for the purposes set out therein and retaining such information until such time that you request in writing the destruction or deletion thereof.

8.7 All title, copyright and any other intellectual property in any documents of whatsoever nature generated or amended by the consultants as a result of the provision by them of the services will only pass to you upon receipt by the consultants and / or Caveat (as the case may be) of payment of all fees and disbursements which may be owed or owing, in full, without set-off or derogation, in accordance with these Consultants Terms.

8.8 You accept that information that the consultants collect about you may be:

8.8.1 stored and processed in and transferred between any of the countries in which they and/or Caveat operate in order to enable them to process such information in accordance with these Consultants Terms; and

8.8.2 transferred to or between various countries internationally as a consequence of them using information technology hosted or operated by a third party in or from such countries to store and/or process any information in their possession or under their control, which countries may not have data protection laws that are equivalent to those in force in the jurisdiction in which you reside. Caveat shall, as far as reasonably practicable in the circumstances, use information technology hosted or operated by a third party in or from countries whose data protection laws are equivalent to those in force in the jurisdiction in which you reside.

8.9 This clause 8 will survive the termination or cancellation of these Consultants Terms for any reason whatsoever.

9. LIMITATION OF LIABILITY AND INDEMNITY

9.1 Notwithstanding anything to the contrary which may be contained in these Consultants Terms, the consultants’ liability for any direct or indirect (including, without limitation, consequential) loss, damage, costs and / or expenses of any nature whatsoever which you may suffer or incur as a consequence of or which may arise from or be attributable to:

9.1.1 the services or any other work performed by a consultant;

9.1.2 any act or omission on the part of Caveat or a consultant; and/or

9.1.3 any breach, fault or negligence on the part of Caveat or a consultantwill be limited to the amount recovered in respect thereof by Caveat or the consultants in terms of the Caveat professional indemnity insurance policy.

9.2 You hereby indemnify the consultants and hold them harmless in respect of any claims brought against them, Caveat or an employee or officer of Caveat, by a third party for loss, damage, liability, costs and / or expenses of whatsoever nature incurred as a consequence of or arising from or attributable to the services or any other work performed by a consultant, employee, officer or agent for you, your employees, officers or agents.

10. ASSIGNMENT

Neither party may assign any of its rights or obligations contained in these Consultants Terms to any third party.

11. GENERAL

11.1 Remedies Unless the contrary is stated herein, no remedy conferred by these Consultants Terms is intended to be exclusive of any other remedy which is otherwise available at law, by statute or otherwise. Each remedy will be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law, by statute or otherwise.  The election of any one or more remedy by any of the parties will not constitute a waiver by such party of the right to pursue any other remedy.

11.2 Severance If any provision of these Consultants Terms which is not material to its efficacy as a whole, is rendered void, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

11.3 Entire Agreement These Consultants Terms constitute the entire agreement between the parties in regard to its subject matter. Neither of the parties will have any claim or right of action arising from any undertaking, representation or warranty not included in these Consultants Terms.

11.4 Variations No agreement to vary, add to or cancel these Consultants Terms will be of any force or effect unless agreed to in writing by or on behalf of the parties.

11.5 General Co-operation The parties will co‑operate with each other and execute and deliver to the other party such other instruments and documents and take such other actions as may be reasonably requested from time to time in order to carry out, evidence and confirm their rights and the intended purpose of these Consultants Terms.

11.6 Survival of Rights, Duties and Obligations
Termination of these Consultants Terms for any cause will not release either party from any liability which at the time of termination has already accrued to the other party or which thereafter may accrue in respect of any act or omission prior to such termination.

11.7 Electronic signatures
The parties agree that this agreement may be electronically signed. The parties agree that the electronic signatures appearing on this agreement are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.

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