This Service Agreement (“Agreement”) has been drafted to provide clarity and to set mutual expectations on the Service that FluidRock Governance Group (Pty) Ltd or any of its related or inter-related companies (“FluidRock”) will deliver to you (the “Client”).
1. Service Delivery
1.1. FluidRock is able to provide the Services as set out in the FluidRock corporate profile rendered at the fee as quoted to the Client failing which at a standard rate of R4,500.00 per hour (excluding VAT and incidental costs).
1.2 To engage with FluidRock the Client will confirm a quote or request a service in writing hereafter referred to as the Service(s).
1.3. FluidRock endeavours to ensure that our Service to the Client is satisfactory and delivered with reasonable skill and care and within reasonable timelines.
1.4. The Client commits to supply FluidRock with all necessary information and documentation to enable the delivery of the Service. FluidRock will be relying on the said information and the Client’s instructions to execute the Service.
1.5. FluidRock understands that it will have access to confidential information and FluidRock will deal with such information in the appropriate manner. This restriction shall not apply where confidential information enters or has already entered the public domain or where FluidRock is required legally to disclose such information.
1.6. Our Services to the Client is for the Client’s benefit and information only and may not be copied, referred or disclosed, in whole or in part, by any third party without the prior written consent of FluidRock.
1.7. The Client shall be responsible and accountable for the use of, extent of reliance on or implementation of advice or recommendations supplied by FluidRock.
1.8. FluidRock may provide the Services to any other party as it deems fit.
1.9. FluidRock shall retain ownership of any documents produced by FluidRock, until full and final payment has been received at which time such ownership will pass to the Client, except in cases where it has been agreed in writing with the Client that ownership is retained by FluidRock indefinitely.
2.1. FluidRock’s invoices are payable on presentation. VAT will be charged on all fees and disbursements at the statutory rate and the Client commits to providing a VAT number for the entity responsible for payment.
2.2. Fees are increased each year in January with a fair and reasonable price adjustment provided that such increase shall not exceed CPI plus 2% without the Client's written consent.
2.3. The Client commits to pay FluidRock on presentation of the invoice and the invoices shall be deemed prima facie evidence of fees due and payable to FluidRock.
2.4. To the extent provided for by l aw, FluidRock may, at i ts sole and absolute discretion, charge the Client interest on all due and unpaid invoices at the prime interest rate of its banker as published from time to time, which i nterest shall be compounded monthly in arrears.
2.5. Unless otherwise arranged in a formal proposal, payment has to be made in advance of Services being rendered.
2.6. Should the Client complete and submit a signed debit order form then FluidRock may deduct any payments as authorised in the debit order form on a monthly basis.
3. Advisor and non-solicitation
3.1. Any FluidRock advisor and/or other resource (full time and/or part time) may be assigned to a Client depending on the availability and suitability of the assigned individual/s at FluidRock’s discretion.
3.2. Both parties agree not to employ any resource of the other party or use such a person’s services as a consultant or in any other way, either i ndependently or via a third party, during the duration of this Agreement and for a period of 12 (twelve) months following the end of this Agreement, unless agreed in writing by both parties, failing which a fee of 30% of the annual remuneration due to the person (by the employing party) shall be due and payable immediately to the other party.
4. Entire Agreement
4.1. This sets out the entire agreement and understanding between FluidRock and the Client in connection with the Services. Any amendment, including this clause, must be in writing and accepted by FluidRock and the Client, save to the extent provided otherwise in law.
5. Circumstances beyond the Client or FluidRock’s control
5.1. FluidRock or the Client shall not be in breach of the contractual obligations as set out herein nor shall FluidRock or the Client incur any liability to the other if FluidRock or the Client is unable to comply with this Agreement as a result of any cause beyond either FluidRock or the Client’s reasonable control.
5.2. In the event of any such occurrence affecting either FluidRock or the Client, the affected party shall be obliged as soon as reasonably practicable to notify the other party, who shall have the option of suspending or terminating the operation of the agreement on written notice, which notice will take effect immediately on delivery thereof.
6. Waiver, Assignment and Sub-contractors
6.1. Failure by FluidRock or the Client to exercise or enforce any rights available to them shall not amount to a waiver of any rights available to either party.
6.2. Neither FluidRock or the Client shall have the right to cede or assign the benefit or burden of the Agreement without the written consent of the other party.
6.3. FluidRock shall have the right to appoint sub-contractors/consultants to assist in delivering the Services.
7. Exclusions and limitations of our liability
7.1. The maximum liability of FluidRock or any FluidRock employee, resource or consultant in respect of all claims, direct economic l oss or damage suffered by the Client or by other beneficiaries arising out of or in connection with the Services provided shall be limited to an amount equal to the once-off fees charged for the Services (if applicable) or the retainer amount paid for the Services or part thereof in respect of which the claim arises, which retainer amount shall not exceed an amount equal to 3 (three) months’ retainer fees paid.
7.2. In the particular circumstances of the Services set out in the Proposal, the liability of FluidRock and the Client in contract or delict or under statute or otherwise, for any indirect or consequential economic loss or damage (including loss of profits) suffered by FluidRock or the Client (or by any other party) arising from or in connection with the Services, however the indirect or consequential economic loss or damage is caused but excluding any willful or grossly negligent misconduct, shall be excluded to the extent that such limitation is permitted by law.
7.3. Neither FluidRock nor the Client will be liable to the other party or any cessionary or third party claiming through or on behalf of FluidRock or the Client for any punitive damages whatsoever or for any consequential or other loss or damages beyond the maximum liability specified, to the extent that such an exclusion of liability is permissible in law.
7.4. The parties and other beneficiaries shall not bring any claim personally against any individual person in respect of loss or damage suffered by the claiming party or by other beneficiaries arising out of or in connection with the Services, save as may be expressly permitted in terms of any statute. This restriction shall not operate to limit or exclude the liability of either FluidRock or the Client as legal entities for the acts or omissions of its directors, employees and agents.
8. Third Parties
The Client shall indemnify FluidRock and hold the aforesaid Parties and/or persons harmless against any loss, damage, expense or liability incurred by the Parties and/or persons as result of, arising from or in connection with a combination of the following two circumstances:
8.1. Each party hereby indemnifies the other party against any loss, damage, expense or liability incurred by the parties and/or persons as a result of, arising from or in connection with a combination of the following two circumstances:
8.1.1. any breach of the obligations under the Agreement; and
8.1.2. any claim made by a third party or any other beneficiaries which results from or arises from or is connected with any such breach.
8.2. The liability of each party to indemnify the other party shall be limited to an amount equal to the once-off fees charged for the Services (if relevant) or the retainer amount paid for the Services or part thereof in respect of which the claim arises, which retainer amount shall not exceed an amount equal to 3 (three) months’ retainer fees paid.
9.1. Either party may terminate this Agreement or suspend its operation by giving one month’s notice in writing to the other at any time or as otherwise agreed between by parties. Termination or suspension under this clause shall be without prejudice to any rights that may have accrued to either party before termination or suspension and all sums due to FluidRock shall become payable in full when termination or suspension takes effect.
10. Use of logo
10.1. The Client agrees that its company logo and name may be used in future FluidRock proposals or for marketing purposes.
11. Protection of Personal Information Act (POPI)
11.1. Each party agrees to comply with POPI insofar as it is processing any personal information in the performance of its obligations under this Agreement.
11.2. Each party warrants to the other that i t shall not (and shall ensure that i ts personnel shall not):
11.2.1. process any personal information in respect of which the other party is the responsible party in any manner or for any purpose other than as set out in this Agreement and only to the extent strictly necessary to perform its obligations under this Agreement and/or as required by applicable law, except to the extent specifically requested to do otherwise by the party who is the responsible party in respect of the personal information in question in writing; and/or
11.2.2. cause the party who is either the responsible party or the operator in respect of the personal information in question to breach or contravene POPI.
11.3. Each party agrees to notify the other in the event of non-compliance or breach of the provisions of POPI.
11.4. The parties specifically record that all personal information shall constitute confidential information of the party who is the responsible party in respect of the personal information in question.
11.5. Each party shall ensure that all infrastructure, systems and operations which it uses to perform its obligations under this Agreement, including all systems and infrastructure on which personal information is processed, shall at all times be at the standards required by POPI.
11.6. Neither party shall transfer personal information received from the other party outside of the Republic of South Africa without the prior written consent of the other party, who is the responsible party insofar as the personal information in question is concerned.
12. The quotation is valid for 90 days unless otherwise stated in the proposal.
13.1. During the COVID-19 pandemic FluidRock will provide the Service(s) to the extent possible remotely through the use of available technological mechanisms.
13.2. No Client will be permitted at FluidRock’s offices during the COVID-19 pandemic unless prior written approval has been obtained by the Client.
13.3. Should a FluidRock resource be required to attend the Client’s place of business, the Client shall ensure that all possible measures have been taken to ensure the health and safety of the FluidRock resource.
13.4. All FluidRock resources have been i nstructed to i mmediately l eave a Client's place of business should they feel their health and safety might, will be or have been compromised i n any way or form. The Client will remain l iable for payment of the Service(s) in such an event.