STANDARD TERMS AND CONDITIONS
All services provided by CR van Wyk & Company to a client in accordance with the written agreement with that client will be subject to the following standard terms and conditions in addition to what is stated specifically in the written agreement.
Unless the context clearly indicates otherwise:
- reference to any gender shall include the other genders
- the singular shall include the plural
In these standard terms and conditions, the words and phrases set out below have the following meanings:
“You”/”Your”/”Client” means the entity/entities, or the persons, named in the written agreement to which or whom services are to be provided by CR van Wyk & Company.
“We”/”Us”/”our”/”CR van Wyk & Company” means CR van Wyk & Company, (a registered auditor in the Republic of Namibia); any division of CR van Wyk & Company; any company owned or managed by CR van Wyk & Company; the partners, directors and employees of CR van Wyk & Company; and the directors, officers and employees of any company owned or managed by CR van Wyk & Company, whatever the case may be the contracting party in each instance will be identified by our letterhead or set out in the written agreement.
Services mean the services to be rendered by CR van Wyk & Company as set out in the written agreement.
Written agreement means the letter of engagement, or contract, or proposal, or other document between the Client and CR van Wyk & Company setting out the Services to be provided and the related terms and conditions.
2. Headings have no effect
The headings in the written agreement and in these terms and conditions shall not in any way affect or govern the interpretation or construction of the applicable terms and conditions.
3. General principles
The services, written agreement and any related matters are governed by Namibian law and any claims will be subject to the exclusive jurisdiction of the courts in Namibia.
The written agreement and these standard terms and conditions, together with any documents specified in the written agreement, constitute the entire agreement between
CR van Wyk & Company and Client and supplants any prior oral or written representations, if any. They may be varied only by the written agreement of both CR van Wyk & Company and Client.
CR van Wyk & Company and Client are independent contractors. Neither party shall act or represent itself as an agent of the other and shall not in any manner assume or create an obligation of, or in the name of, the other.
Where the written agreement is a proposal, it shall be valid for a period of 60 days from the date of issue, unless otherwise indicated. Where there is a conflict between the terms in the written agreement and these standard terms and conditions, these standard terms and conditions will apply.
5. Provision of services
CR van Wyk & Company will endeavour to deliver the services with the requisite level of skill, integrity and professional competence at all times.
Where the delivery of the services requires information from, or the co-operation of, officials and employees of Client, Client undertakes to use its best efforts to ensure that its directors, management, officials and employees are available when required and that they provide the necessary information and co-operation on a timely basis. Reasonable facilities and access to data and information will be provided by Client.
Where CR van Wyk & Company personnel to deliver the services are named in the written agreement, CR van Wyk & Company will take reasonable steps to ensure that such personnel are used. Nevertheless, CR van Wyk & Company personnel may be absent for short periods of time due to other commitments, annual leave or training. CR van Wyk & Company will endeavour to avoid any disruption to the delivery of the services as a result thereof.
CR van Wyk & Company may need to substitute named personnel and, in such an event, will give reasonable notice thereof to Client and will provide replacement personnel of equivalent ability.
6. Intellectual property
CR van Wyk & Company shall retain all intellectual property rights in all materials, including methodologies, know-how, trade secrets, software and tools used, provided or developed by CR van Wyk & Company in providing and delivering the services.
Except for cases where a licence is expressly granted by CR van Wyk & Company, Client shall acquire no rights or interest in such property.
Client acknowledges that CR van Wyk & Company provides audit, accounting, financial services, management consulting and a variety of other services to a large and diverse range of clients. The provision of the services to Client will not prevent CR van Wyk & Company from providing the same or similar services to other parties, some of whom could be competitors of Client or who may be in conflict with Client.
Client also acknowledges that CR van Wyk & Company may already have provided the same or similar services to other parties.
Where CR van Wyk & Company is aware of the same or similar services being provided to other parties, safeguards will be implemented to protect the interests of Client. These safeguards will include the use of different personnel and other barriers to ensure the confidentiality of information.
Whilst CR van Wyk & Company will be bound by the confidentiality clauses mentioned below, CR van Wyk & Company shall have the right to use the name of Client and a description of the services as a reference in seeking to provide services to other parties, unless Client expressly forbids this.
We may require sensitive information concerning your business or affairs in the course of delivering the services (confidential information). In relation to confidential information we shall comply with the confidentiality standards of our regulatory bodies, the Regulatory Board, the Institute of Chartered Accountants in Namibia as well as legislation contained in the Public Accountants’ and Auditors’ Act, 1951 (as amended). This clause shall not apply where confidential information enters the public domain or where we are required to disclose it to our insurers, legal advisers or under legal compulsion.
CR van Wyk & Company will keep confidential all information obtained from Client except such information as is in the public domain, or where Client agrees to CR van Wyk & Company making this information available to other parties.
Notwithstanding the above, Client acknowledges that CR van Wyk & Company may be required to disclose confidential information to its legal advisers, insurers, the Independent Regulatory Board for Auditors (or its successor), or to another party under any law requiring such disclosure which include disclosure as required by the Financial Intelligence Act. Disclosure in any of these instances will be permissible and will not be a breach of clause above.
Client agrees to keep confidential any methodologies, technology, know how, trade secrets, software and tools used, provided or developed by CR van Wyk & Company in providing and delivering the services. Similarly, any information provided or developed by CR van Wyk & Company will be kept confidential, unless CR van Wyk & Company expressly agrees in writing to Client making this available to other parties.
Where the written agreement is a proposal for work to be performed and Client does not accept the proposal, any documentation or property specifically identified by CR van Wyk & Company will be returned to CR van Wyk & Company on request.
Client acknowledges that CR van Wyk & Company is required, in terms of professional standards, to retain documentation to support the work done and any deliverables provided. Where this documentation includes confidential information of Client, CR van Wyk & Company will be entitled to retain such documentation.
9. Professional fees
The basis of charging professional fees is set out in the written agreement.
Any fee estimate/proposal/quotation we may provide is never an agreement as to the cost of an assignment in terms of an engagement, but only serves as a guideline as we have to adhere to prescribed standards and may not limit ourselves in terms of the time to be spent on an engagement, thereby compromising quality.
Any fee estimate agreed with the client before the commencement of our engagement is based on the assumption that all relevant information required for the performance of our work is readily available and accessible and that client’s management and staff is available throughout the performance of our work. In a case where unexpected problems beyond our control arise, this may result in additional fees for which invoices will be raised on the abovementioned basis.
Disbursements and out-of-pocket expenses incurred in providing the services will be charged at cost. These include all reasonable expenditure necessary for the successful completion of the services including but not limited to travelling, subsistence, goods and services purchased on Client’s behalf, communications, stationery, report and presentation material, secretarial time and computer charges.
Invoices for fees and expenses/disbursements will be presented as agreed or on completion of the services whichever is the earlier. Invoices are payable on presentation.
Payments shall be made by Client without any deduction. If you are not in agreement with any fee note or in the event of the invoice being under dispute, you are required to notify us in writing of your objection within 30 (thirty) working days of the date reflected on the fee note. Failure to do so will constitute irrevocable acceptance of the fee.
CR van Wyk & Company will, at its discretion, charge interest on any invoices, or portions thereof, not paid on presentation. The rate of interest will be at the overdraft interest rate charged by CR van Wyk & Company’s bankers plus 3%. Payments of such penalty interest shall be without prejudice to any other rights that CR van Wyk & Company may have in law or otherwise.
In case where a client is of the opinion that our fees are not justified the matter should be communicated to us within 30 days from the invoice date. A complaint can be laid at the Institute of Chartered Accountants of Namibia (ICAN) offices in Windhoek after having addressed the matter with us, as we are subject to Rules of Professional Conduct laid down by the Institute.
Client acknowledges that CR van Wyk & Company may suspend provision of the services until all amounts due are paid in full. Such suspension of services may lead to returns not being submitted and accordingly attracting penalties and/or interest for which we will under no circumstances be liable.
In a case where we realise in the course of our engagement that the client has not fully disclosed his affairs, is unwilling to co-operate or withhold relevant information, or where the client expects us to become party to any dishonest or unethical act in any form, CR van Wyk & Company may immediately withdraw from the engagement and issue an invoice for the time spent, notwithstanding that such or any task has not been completed.
If legal action is required to collect any amounts due by the client to CR van Wyk & Company, the client agrees to be liable for all such legal costs and disbursements.
The signatory to our letter of engagement binds himself/herself as surety and co-principal debtor in respect of any outstanding accounts due and payable to us in respect of services rendered (including disbursements) to the client.
The signatory / surety renounce the benefits of exclusion, division and cession of action.
The surety is a continuing covering surety ship for the present and future obligations of the client and will be the duty of the signatory / surety and the client to arrange for us for an alternate surety acceptable to us in the event of the signatory / surety no longer being associated with the client.
11. Use of reports and other deliverables
Any advice, report, certificate, schedule or other deliverable arising from or in connection with the services will be for the sole use of the party or parties to whom it is addressed and may be relied upon only by that party or parties. No person other than the party or parties to whom it is addressed shall be entitled to place any reliance thereon for any purpose whatsoever.
Any such advice, report, certificate, schedule or other deliverable is based on the particular facts and circumstances of Client at a particular point in time. Consequently, such advice, report, certificate, schedule or other deliverable may well not be relevant to another party or at a different time and under different circumstances. CR van Wyk & Company does not warrant or guarantee that there will be no change to relevant facts and circumstances in the future or that future events or outcomes will transpire.
Copies may be made available to the addressee’s advisors provided that they are to be used by the advisors solely for the purposes stated in such advice, report, certificate, schedule or other deliverable and provided that the advisors are made aware of this paragraph. However, such copies, in whole or in part, may not be made available to any other party without the prior express written consent of CR van Wyk & Company, which consent may be given or withheld at our absolute discretion.
Client indemnifies CR van Wyk & Company against any claim by any third party arising from a copy of any report, certificate, schedule or other deliverable which the third party received from Client or its advisors.
We reserve the right to exercise a lien over all client documents and records in our possession, including, but not limited to, secretarial, tax and other statutory documentation relating to all engagements for you until all outstanding fees and disbursements are paid in full. In the event of your termination of our mandate, you undertake to settle our account, including amounts for services rendered and not yet invoiced, in full prior to our handing over of client documents in our possession to you or to our successor.
The working papers and files for this engagement created by us during the course of performing the duties set out in this engagement letter, including electronic documents and files, are the sole property of CR van Wyk & Company.
Retention – We may retain copies of all materials relevant to the services, including any materials given to us by you or on your behalf. We do not release materials which belong to us (including our working papers) unless we have specifically agreed to do so. We may require a release letter from the recipient as a condition of disclosure
13. Reliance on advice and client information
The services or any portion thereof, are based and/or dependent on information supplied by Client. CR van Wyk & Company will not be liable to Client or to any third party for any damages suffered as a result of Client providing any information that is incorrect or incomplete or where Client fails to disclose any relevant information to CR van Wyk & Company, and Client indemnifies CR van Wyk & Company against any claims or expenses relating thereto.
In respect of all non-audit services:
- It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, Client. Furthermore, Client shall be solely responsible for, among other things: (i) making all management decisions and performing all management functions; (ii) designating a competent employee, preferably within senior management, to oversee the Services on behalf of Client; (iii) evaluating on behalf of Client the adequacy and results of the Services; (iv) accepting responsibility for results of the Services; and (v) establishing and maintaining internal controls, including without limitation, monitoring of ongoing activities. In connection with the Services, CR van Wyk & Company shall be entitled to rely on all decisions and approvals of Client.
- That, if there is any misstatement, omission or change in any of the information we have relied on, this may render our advice invalid or necessitate (upon your request) a reconsideration of the advice and you should therefore carefully consider the facts upon which our written advice is based and advise us of any possible changes required;
- The advice will be based upon the legislation, regulations, case law, rulings and other authorities in effect at the date of the advice, and subsequent changes thereto (for which we shall have no responsibility to advise Client) may render our advice invalid or necessitate (upon your request) a reconsideration of the advice;
- Our opinion in respect of tax services will be based on interpretation of the law and experience with the relevant tax authorities. Therefore, the conclusions reached and views expressed will often be matters of opinion rather than of certainty.
- That we cannot anticipate the conclusions which might be reached until we have completed our work and finalised our advice.
- In formulating our conclusions, we may discuss ideas with you verbally, show you drafts of our deliverables for your comment or communicate with you by email or other electronic medium. This should be regarded as seeking clarification of issues or indicative only, and no reliance should be placed thereon until our final opinion or report is issued in writing in a letter signed by ourselves.
- That in the case of telephonic discussions, meetings or email correspondence, any advice provided or conclusions reached should be regarded as indicative
only, and should be confirmed in a letter in writing from ourselves to ensure that there is no misunderstanding of either the conclusions reached or the underlying information on which any conclusion is based, particularly if it relates to a significant matter.
14. Limitation of liability
The liability which can arise from our provision of an audit is defined in the Public Accountants’ and Auditors’ Act 1951 (as amended) is limited as set out in section 26 of that Act.
For all other services the maximum liability of CR van Wyk & Company, its partners, employees, and agents in respect of any and all claims which may arise in respect of the services shall be limited to twice the fees charged for these services. This maximum liability shall be an aggregate liability for all claims howsoever arising, whether by contract, delict, negligence or otherwise.
Where services are rendered otherwise than in terms of a written agreement, this clause shall apply separately to services relating to each invoice issued.
CR van Wyk & Company, its partners, employees and agents will not be liable to client or any third party for any consequential, punitive or any other loss or damages beyond the maximum liability specified.
Any claims, howsoever arising, must be commenced formally within two years after the party bringing the claim becomes aware ( or ought reasonably to have become aware ) of the facts which give rise to the action and, in any event, no later than three years after any alleged breach of contract, negligence, delict or other cause of action. This expressly overrides any statutory provision which would otherwise apply.
CR van Wyk & Company will not be liable for any delays resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, strike or labour dispute, war or other violence or cause through any law, order or requirement of any governmental agency or authority.
Where the services comprise forensic work or litigation support:
- Client, in addition to the limitations indicated above, indemnifies CR van Wyk & Company against all liabilities, losses, damages, claims, demands and reasonable expenses including, but not limited to attorneys fees and expenses, in any action brought against CR van Wyk & Company by any other party except Client in connection with or arising out of such services. This indemnification shall not apply in respect of wilful misconduct or gross negligence on the part of CR van Wyk & Company;
- CR van Wyk & Company shall have no responsibility or liability whatsoever in respect of any advice given or work undertaken for Client by persons who are not partners, directors, principals, members of staff, employees of CR van Wyk & Company or their sub-contractors, regardless of whether or not such persons were introduced to Client by CR van Wyk & Company.
The client agrees and undertakes that during the course of this engagement and for a period of six months following its completion or termination he will not, directly or indirectly make an offer of employment (whether full-time or part-time) to, solicit or entice away any member of our staff or employ such staff member or engage them in any way other than through CR van Wyk & Company. In the event of an employment offer being made the Client will reimburse CR van Wyk & Company for an amount equal to the daily charge-out rate of the staff member for a six month period.
Either party may terminate this engagement immediately by providing the other party with a written notification to that effect. In the event of termination all fees, costs and expenses incurred to date of termination shall be forthwith become due and payable by the client.
In the event of either Client or CR van Wyk & Company being in breach of any of the terms of the written agreement, the other party may, by written notice require the party which is in breach to remedy such breach. If this has not been remedied with them within 7 days of receipt of such notice, or if the breach is incapable of being remedied, the other party may in writing terminate the written agreement without prejudice to its right to claim damages.
Upon termination of this engagement client documentation will be returned to the Client or the Client’s new accountants. CR van Wyk & Company will not keep copies of any client documentation or returns.
17. Legal addresses
Client and CR van Wyk & Company each choose the address set out opposite its name in the address clause of the written agreement as its legal address. Any notice to be given in terms of the written agreement or these standard terms and conditions must be in writing and delivered to the legal address of the party concerned. You choose as your domicilium citandi et executandi for all purposes under this engagement the physical address recorded in our records at the inception of the matter. It shall be your duty to keep us updated of your current address, and we shall be entitled to serve any court process at your domicilium, notwithstanding the fact that we may be aware that you no longer reside at the last domicilium address.
18. Destruction date
As per our firm policy we only keep our accounting, payroll, audit and related working papers and client information for a period of five years from report signing or submission date. After a five year retention period all relevant working papers and documentation will be destroyed.
19. Severability of clauses
If any provision or clause of the written agreement or of the standard terms and conditions becomes invalid or unenforceable, such provision or clause shall be divisible and be regarded as pro non-scripto and the remainder of the written agreement and the standard terms and conditions shall remain in force and binding. A waiver or variation of any individual requirements with the written agreement or of the standard terms shall not result a variation of any other terms or in the cancellation of the entire written agreement or of the standard terms. Waivers or variations will only be of effect if reduced to writing.
20. Anti-money laundering
In terms of Namibian money laundering legislation, we are obliged to carry out identity checks on our clients. We will ask you for your cooperation in this regard, and if we are unable to complete these checks we will not be able to carry out the work on behalf of you.
It is important for you to understand that in certain circumstances, the anti money laundering legislation obliges us to report suspicions involving possible money laundering transactions to the authorities.
If, as a result of us complying with the terms of this legislation, we will be obliged to do or refrain from doing anything in relation to your work, then we shall not be liable for any consequences of that.
21. Trust account
All funds received from clients for payment, on their behalf to other institutions or persons, are kept in a separate bank account. No interest will accrue on any of these funds.
22. Releasing information to the Master of the High Court
Where applicable the Board of Trustees authorises us to furnish the Master of the High Court with any information obtained by us, in our capacity as auditors or accountants to the trust, should the Master so request. Such information may include but is not limited to;
• Copies of all financial statements in our possession,
• Accounting records and workpapers,
• Any information or documentation in terms of the Trust Monies Protection Act 34 of 1934 as requested by the Master of the High court.
1 October 2019
29 Feld Street, Windhoek, Namibia
Monday - Thursday - 07:30 to 17:00
Friday - 07:30 to 13:30
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