This Service Agreement (“Agreement”) has been drafted to provide clarity and to set mutual expectations in terms of the Service that FluidRock Governance Group (Pty) Ltd (“FluidRock”) will deliver to you (the “Client”). FluidRock and the Client are collectively referred to as the Parties. All services provided by FluidRock, or its related parties are subject to these terms and conditions.
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 R3,500 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 refered 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. For the transcription of minutes from a recording, the recording needs to be clear and audible.
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, to a third party without our prior written consent.
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 is specifically noted that ownership is retained by FluidRock indefinitely.
1.10. Digital voice recordings of meetings as well as draft minutes containing edits and amendments may be discarded after the final set of minutes had been provided to the Client.
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.
2.3. The Client commits to pay FluidRock on presentation of the invoice and FluidRock invoices shall be deemed prima facie evidence of fees due and payable to FluidRock.
3.1. Any FluidRock advisor may be assigned to a Client depending on the availability and suitability of the advisor at FluidRock’s discretion.
3.2. The Client agrees not to make any offer of employment nor to employ or engage directly with any advisor of FluidRock. The Client further agrees not to employ or engage with such person or use such a person’s Services as a consultant or in any other way either independently or via a third party for a period of 12 months following the end of the engagement with FluidRock unless agreed in writing, failing which a fee of 17% of the annual remuneration due to the person shall be due and payable immediately to FluidRock.
4. Entire Agreement
4.1. This sets out the entire Agreement and understanding between the Parties in connection with the Services. Any alteration, including this clause, must be in writing and accepted by both Parties, save to the extent provided otherwise in law.
5. Circumstances beyond the control of the Client or FluidRock
5.1. Neither Party shall be in breach of our contractual obligations nor shall either Party incur any liability to the other if FluidRock or the Client is unable to comply with the Agreement as a result of any cause beyond either Party’s reasonable control. In the event of any such occurrence affecting one of the Parties, the affected Party shall be obliged as soon as reasonably practicable to notify the other, 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 any Party 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 Party shall have the right to cede or assign the benefit or burden of the Agreement without the written consent of the other.
6.3. FluidRock shall have the right to appoint sub-contractors to assist in delivering the Services.
7. Exclusions and limitations of our liability
7.1. The maximum liability of FluidRock or any FluidRock person in respect of all claims, direct economic loss 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 lesser of the fees charged or the amount paid for the Services or part thereof in respect of which the claim arises to a maximum of three months’ fees paid.
7.2. In the particular circumstances of the Services, the liability to the Client and to other beneficiaries of each and all FluidRock persons in contract or delict or under statute or otherwise, for any indirect or consequential economic loss or damage (including loss of profits) suffered by the Client (or by any such other party) arising from or in connection with the Services, however the indirect or consequential economic loss or damage is caused, excluding our wilful or grossly negligent misconduct, shall be excluded to the extent that such limitation is permitted by law.
7.3. FluidRock will not be liable to the Client or any cessionary or third party claiming through or on behalf of 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. In further consideration of the Agreement to provide these Services, the Client agree to indemnify FluidRock and hold it harmless against all and any claims made against it by any party whatsoever in respect of any loss, damages, costs or expenses referred to above and against the actual costs incurred by FluidRock in defending such claims.
7.5. The Client and other beneficiaries shall not bring any claim personally against any FluidRock person in respect of loss or damage suffered by the Client 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 FluidRock as a company 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. any breach by the Client of the Client’s obligations under the Agreement and
8.2. any claim made by a third party or any other beneficiaries which results from or arises from or is connected with any such breach.
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 the 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.
Each clause or term of the agreement constitutes a separate and independent provision. If any of the provisions of the Agreement are held by any court or authority of competent jurisdiction to be void or unenforceable, the remaining provisions shall continue in full force and effect.
11. Dispute resolution
The Client’s authorisation of the Services constitutes agreement to settlement of any dispute, controversy or claim by arbitration in accordance with the mediation and arbitration rules of Tokiso Dispute Settlement (Pty) Ltd in the first instance or by another similar independent provider by agreement. The arbitrator’s award shall be final and binding on both Parties and shall not be subject to appeal. The arbitrator shall be agreed upon between the Parties and this clause shall not preclude any party from applying to any court having jurisdiction for urgent relief.
This Agreement will be governed by and interpreted in accordance with the laws of South Africa and the Courts of South Africa shall have exclusive jurisdiction in relation to any matter arising from this engagement.