For purposes of the Engagement Letter and these standard Terms and Conditions, the following words and/or phrases will, unless the context clearly indicates otherwise, have the meanings set out below:
3.1 ‘Agreement’ means the Engagement Letter, these Terms and Conditions and the Client Personal Information Privacy Notice (read with any other document referred to in either) or any amendments thereto properly effected in accordance herewith.
3.2 ‘Associate’ means in relation to:
3.2.1 any company, any other company that is its Subsidiary, Holding Company or a Subsidiary of its Holding Company; or
3.2.2 any person (including a company, partnership or trust), any other person over which, or over the management of which, control can be or is exercised directly or indirectly by persons who can or do also exercise control directly or indirectly over that person or its management
3.3 ‘STATUCOR’ or ‘we’ or ‘us’ or derivatives thereof means the STATUCOR contracting party identified in the Engagement Letter.
3.4 ‘BDO Member Firms’ means those firms considered a BDO member firm, both locally and internationally, by virtue of a license or other Agreement with BDO International Limited, with ‘BDO Member Firm’ meaning any one of them.
3.5 ‘STATUCOR Persons’ means STATUCOR and, where applicable, each and all of STATUCOR’s directors, employees, sub-contractors as the case may be, together with any other natural or juristic person, association, partnership, trust or other entity controlled or owned, directly or indirectly, by STATUCOR or Associated with STATUCOR, including, where applicable, BDO Member Firms, and each and all of its directors, employees and agents, with ‘STATUCOR person’ meaning any one of them.
3.6 ‘Business Day’ means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
3.7 ‘Client Personal Information Privacy Notice’ means the written Client Personal Information Privacy Notice, read together with these standard Terms and Conditions and Engagement Letter which are incorporated by reference explicitly, and which serves to notify the client when we collect personal information as anticipated in terms of section 18 of POPIA.
3.8 ‘Colleagues’ or ‘a colleague’ means collectively or individually, STATUCOR Persons who are not members of the Engagement Team.
3.9 ‘Confidential Information’ means the Information of the Parties which is deemed or designated by either of them to be confidential and/or proprietary and includes:
3.9.1 information which affords the Discloser a competitive advantage and includes its trade secrets, ideas, processes, formulas, computer software and information systems (whether developed in-house or operated under licence), data and know-how, copyrightable material, improvements, inventions (whether patentable or not), techniques, marketing plans, strategies, business and product development plans, timetables, forecasts and details and particulars in regard to its suppliers, (potential) customers and business associates, products and services (past, current and prospective), business or technical information, product plans, product designs, product costs, pricing structures and strategies, product names, finances and/or financial results, business opportunities, research, staff and development.
3.9.2 Information is not readily available in the normal course of business to a competitor or the public and/or under the circumstances would reasonably be deemed to be confidential and has not lawfully been made public or entered the public domain through lawful and authorised means.
3.10 ‘Control’ will bear the meaning assigned to it in Section 2 of the Companies Act 71 of 2008.
3.11 ‘CPA’ means the Consumer Protection Act, No 68 of 2008
3.12 ‘Data Protection Law’ means the POPIA and the GDPR and all other applicable laws in relation to Personal Information/Personal Data (or the equivalent).
3.13 ‘Deliverable’ refers to anything in writing or otherwise tangible (whether in hard copy or electronic format) created or prepared by STATUCOR for the Client as part of the Services
3.14 ‘Discloser’ means either STATUCOR or the Client, as the case may be, who is disclosing Confidential Information to the Receiver
3.15 ‘Effective Date’ means the date on which any Confidential Information or Intellectual Property is transferred between the Parties, or the date on which STATUCOR commences rendering the Services to the Client, or the date of written acceptance by the Client of the Engagement Letter, whichever is earlier in date.
3.16 ‘Engagement’ means the Services to which this Agreement relates.
3.17 ‘Engagement Letter’ means the written Engagement Letter (which includes any annexures, schedules, additional terms related to the Engagement) read together with these standard Terms and Conditions, which are incorporated by reference explicitly and which defines the terms of the engagement between us and you with respect to our Services.
Any modification or variation to the Engagement Letter must be in writing and signed by an authorised representative of each of us. For the avoidance of doubt and in amplification of the immediately preceding clause, any modification of the Engagement Letter will include any modification of these standard Terms and Conditions and vice versa. No variation of the Engagement Letter will be of any force or effect, unless reduced to writing and signed by all the signatories thereto. By implication, no variation of these standard Terms and Conditions will be of any force or effect, unless reduced to writing and signed by all the signatories thereto.
In the event of any inconsistency between the Engagement Letter and these standard Terms and Conditions, the Engagement Letter will prevail. In the event of any inconsistency between these standard Terms and Conditions and additional terms that may apply, the additional terms shall prevail.
3.18 ‘Engagement team’ means collectively or individually, the STATUCOR persons who are involved in delivering the services.
3.19 ‘Entity’ means any juristic person, association, business, close corporation, company, concern, enterprise, firm, partnership, joint venture, trust, undertaking, voluntary association, body corporate and any similar entity.
3.20 ‘Expenses’ mean the actual costs incurred by STATUCOR reasonably necessary for the successful completion of the Services, including but not limited to disbursements, travelling, accommodation, subsistence, communication, stationery, administration, photocopying, printing, report and presentation material, secretarial time and charges related to goods and services purchased on the Client’s behalf.
3.21 ‘Fees’ means the fees charged by STATUCOR for the Services as set out in the Engagement Letter (or addendum thereto) or as agreed upon between the Parties, which excludes VAT and Expenses.
3.22 ‘Force Majeure’ means any event beyond the reasonable control of the Party (‘the Affected Party’) claiming the occurrence of force majeure:
3.22.1 the occurrence of which could not have been reasonably foreseen at the date of the execution of this Agreement; and
3.22.2 includes, but is not limited to, war whether declared or not, revolution, riot, strikes or other protestor action, insurrection, civil commotion, invasion, armed conflict, the failure of suppliers or contractors, hostile act of foreign enemy, act of terrorism, sabotage, radiation nor chemical combination, ionizing radiation, act of God, plague or other serious endemic, epidemic or pandemic or any governmental action related to any of the aforegoing.
3.23 ‘GDPR’ means the EU General Data Protection Regulation (EU) 2016/679
3.24 ‘Holding Company’ shall have the meaning defined in Section 1 of the Companies Act No 71 of 2008.
3.25 ‘IESBA’ means International Ethics Standards Board for Accountants
3.26 ‘Information’ means any information as generally understood, including Confidential Information, source codes, reports, notes, working papers, emails, designs, techniques, models, templates, generalised features of the structure, sequence and organisation of software, user interfaces, screen designs, general purpose consulting and software tolls, utilities and routines logic, coherence and methods of operations systems; methodologies, documents, presentations, data technologies, programmes, processes, records and facts, whether in hard copy or electronic format;
3.27 ‘Intellectual Property’ means all Information of a proprietary nature in relation to the technology, business, products, processes, services or operations of a Party, including any patent, trademark, logo or design, which has been registered or is capable of being registered in any national or international intellectual property office or association, as well as any copyrightable works, trade secrets and know-how.
3.28 ‘Other beneficiaries’ means any and each person or entity whose activities you may control, or any other organisation or entity Associated with you, if any such person or organisation is identified in the Engagement Letter as a recipient or beneficiary of the services or any product thereof and any and each person or organisation which we and you agree may be so treated.
3.29 ‘Party/Parties’ means STATUCOR or the Client individually or collectively as the context may require
3.30 ‘Personal Information/Personal Data’ shall have the meaning set out in POPIA and GDPR respectively, as amended from time to time, or such other legislation, as may become applicable to the protection of Personal Information/Personal Data (or the equivalent).
3.31 ‘POPIA’ means the Protection of Personal Information Act No 4 of 2013
3.32 ‘Professional Advisors’ means the Client’s duly appointed attorneys, auditors and other professional or Transaction advisors from time to time.
3.33 ‘Receiver’ means either STATUCOR or the Client, as the case may be, who is receiving Confidential Information from the Discloser.
3.34 ‘Services’ means the services to be delivered by STATUCOR in terms of the Engagement Letter and if applicable, those additional services required by you from us. Services shall be deemed to include any deliverables and work/s.
3.35 ‘Staff’ has the meaning assigned to “employee” in terms of Section 78 of the Labour Relations Act, No 66 of 1995
3.36 ‘Subsidiary’ shall have the meaning defined in Section 1 of the Companies Act No 71 of 2008.
3.37 ‘Subsequent Event’ means an event which occurs after the completion of the Services.
3.38 ‘Term/s’ means the terms contained in this Agreement and any annexure or schedule thereto
3.39 ‘VAT’ means value-added tax as described in the Value-Added Tax Act 89 of 1991, as amended.
3.40 ‘Work/s’ means the work that STATUCOR conducts, creates or prepares either alone, with the support of any subcontractors, member firm or with the Client in rendering the Services, which work includes Deliverables, processes, procedures, investigations, notes, working papers, recordings, models, advice, findings or recommendations, whether in draft or final form, in writing or orally.
3.41 ‘You’ (and derivatives thereof) or ‘the Client’ means the contracting party or parties identified in the Engagement Letter, collectively or individually, as the case may be and includes any additional personal or entity who agrees expressly to be bound by this Agreement, being the Client of STATUCOR.