VIRTUAL BUSINESS SUPPORT – GENERAL TERMS AND CONDITIONS
APPLICATION
These general terms and conditions find application when engaging with Kliche& Friends (Pty) Ltd (Registration Number 2021/900535/07) trading as RETASK for certain administrative or other services.
SCOPE OF ENGAGEMENT
RETASK will perform certain tasks and related services for a client (the “Services”) as specified in the document titled: “Statement of Work” (“SOW”)
Subject to paragraph 7 below:
the parties may at any time agree to an amendment of or additional or subsequent SOW/s;
The terms and conditions as set forth herein shall, upon the reaching of any agreement between the parties be deem to equally apply thereto unless otherwise specified.
Amendments of existing or an additional SOW/s may be concluded by email correspondence between the parties.
A SOW will provide a description of each given project’s specific requirements by defining the scope of work being provided, project deliverables, timelines, work location, and payment terms and conditions.
A SOW may include, introduce additional or revoke existing terms and conditions recorded herein. In the event of conflict between these terms and conditions and the SOW occurring, the SOW shall prevail.
The SOW and the obligations thereunder shall terminate upon the client’s acceptance of completion of all Services contemplated therein and full payment to RETASK having been received thereunder.
INDEPENDENT CONTRACTOR RELATIONSHIP
It is expressly recorded that RETASK’s relationship to a client shall be that of an independent contractor. Nothing in the relationship between RETASK and a client shall be construed to create any partnership, joint venture, employer-employee or agency relationship between a client and RETASK.
Neither party shall represent to any third party that any such relationship exists.
A contractual relationship shall be non-exclusive. RETASK may be engaged or employed in any other activity provided that such work does not present a conflict of interest for RETASK or result in the disclosure of Confidential Information (as defined herein).
FEES, DISBURSMENTS, INVOICING AND PAYMENT
As consideration for any services to be provided by RETASK and other obligations, the client shall pay to RETASK the amounts specified in the SOW.
RETASK shall charge and the client shall reimburse RETASK for all reasonable and pre-approved disbursements that are incurred in connection with the performance of the services provided for herein.
Subject to the specifications of a SOW, RETASK will either charge the Client in advance of/after the execution of the services or every month-end during which work has taken place with payment being within 7 (seven) days of date of invoice.
In the event of early termination of an agreement between the parties, the client shall be liable to RETASK for any portion of the Services that have been performed prior to the termination in accordance with any SOW.
Payments not received by the due date will result in work cessation. RETASK reserves the right to refuse completion or delivery of Services until past due balances are paid. All materials or property belonging to the client, as well as work performed, may be retained as security until all just claims against a client are satisfied.
In the event a client fails to remit payment of any amount due under an agreement on or before the due date, in addition to any other rights RETASK may have hereunder, the payment will accrue interest from that date due at the annual rate of 3.5% above the prevailing prime lending rate from time to time of the South African Reserve Bank, accruing on a daily basis and being compounded annually until payment is made, whether before or after any judgement and the client shall pay any interest immediately on demand.
In the event of collection and enforcement of payment is required, the client shall be liable for any costs associated with such collection, including, but not limited to attorney’s fees and disbursements and any other collection fees.
DURATION OF AGREEMENT
RETASK shall, with reasonable care and skill, and otherwise in the manner customarily performed by service providers in the industry, provide Services to the client for a period as expressly set out in the SOW, which may be for a fixed period or on an ongoing basis.
Notwithstanding anything contained in an engagement agreement, either party may terminate an agreement:
within 7 (seven) days of written notice in the event that the other party breaches the agreement; or
at any time upon 30 calendar days written notice to the email address of the other party.
An agreement between the parties shall terminate immediately upon any of the parties being declared provisionally liquidated.
SUB-CONTRACTING
RETASK shall, in the performance of its obligations hereunder, have in its sole discretion the right to assign, transfer, charge, delegate or subcontract its rights and responsibilities in terms of the SOW and these terms and conditions to any third party, provided that RETASK shall remain responsible for the performance of any Services.
A client shall not however, without RETASK’s prior written consent, be entitled to assign or transfer in any other manner with all or any of its client’s rights or contractual obligations.
CHANGES TO THE SERVICES Any material proposed changes to the Services contained in a SOW, including the schedule, deliverables, and related fees, must be approved by the prior written consent between the Parties.
LOCATION OF SERVICE OBLIGATION. Services shall be performed and provided virtually via email, fax, phone or other virtual platforms or means from RETASK’s location, which location shall be at RETASK’s sole discretion and may change from time to time without prior notice to the client.
OFFICE HOURS AND COMMUNICATION
RETASK general office hours are Monday through Friday, 8:00 am to 6:00 pm excluding public holidays. The client however shall not have any control on how or when RETASK applies its time in respect of performance or delivery of the Services.
Email (or other electronic means) is to be the primary form of communication between the client and RETASK.
RETASK is available for phone calls during office hours only. Occasional calls lasting over 15 minutes will be charged for.
Any telephone call or virtual meetings must be scheduled. Cancellation of such calls or meetings requires a minimum of 24-hour advance notice. Missed meetings or cancellations without reasonable notice to RETASK will be charged to the client.
Should a client request Services outside of the above specified hours/after hours, RETASK reserves the right to charge a surcharge of up to 50% of the standard fees.
MATERIALS AND INFORMATION A client is responsible for furnishing RETASK with all pertinent information, and for furnishing accurate, truthful and complete information necessary for RETASK to perform or complete the Services. The client ensures that where necessary permissions to use certain provided materials have been obtained.
PRIVACY POLICIES
Both Parties hereby undertake to comply fully with their respective obligations under the Protection of Personal Information Act 4 of 2013. Each party will, if applicable, notify the other party in a timely manner in the event of a data breach that involves the other party’s data.
Where required or necessary, RETASK will process the personal data on behalf of the client during the duration and for the purposes as specified in the respective SOW.
The parties reciprocally provide their consent to the other, in so far as may be necessary or required, to obtain, collect, process and store such personal information for the required duration for purposes of meeting their obligations to each other in terms of their engagement agreement with each other.
OWNERSHIP OF PROCEDURES AND DELIVERABLES
All procedures, developments, processes, methods, improvements, ideas, and other forms of intellectual property that RETASK conceives, reduces to practice or develops, alone in the performance of the Services, including designs, data, software code, ideas, know-how, materials, trademarks, methods, procedures, tools, interfaces, and other forms of technology, as well as any intellectual property rights of any kind therein, will be the sole and exclusive property of RETASK.
Only where expressly specified in a SOW will engagement tasks causing deliverables and works of authorship that RETASK conceives, reduces to practice or develops during an engagement with a client including designs, data, software code, ideas, inventions, know-how, materials, marks, methods, procedures, tools, interfaces, and other forms of technology be deemed the sole and exclusive property of the client.
CONFIDENTIALITY
RETASK may obtain/receive and get access to information related to client’s business (including but not limited to technical information or specifications, plans, designs or forecasts and strategies, client lists, personnel information, trade secrets, financial data and other proprietary information) that a third party would consider to be confidential and/or proprietary or the client has a duty to treat as confidential.
RETASK undertakes, unless having the written consent of the client stating otherwise:
to hold all such confidential information in strict trust and confidence;
not to disclose such confidential information by any means to any third parties for the duration of its engagement with the client and for a period of at least one thereafter;
not use or permit others to use any such confidential information in any manner or for any purpose; and
not to disclose or permit others to disclose any such confidential information to any third party.
RETASK’s obligations with respect to any portion of the client’s information as set forth above shall not apply when the information:
was in the public domain at the time it was communicated to RETASK;
entered the public domain subsequent to the time it was communicated to RETASK through no cause of RETASK;
was in RETASK’s possession free of any obligation of confidence at the time it was communicated to RETASK; or
was rightfully communicated to RETASK free of any obligation of confidence subsequent to the time it was communicated to RETASK by the client.
INDEMNIFICATION AND LIMITATION OF LIABILITY
The client agrees to indemnify and hold RETASK harmless from any and all claims, damages, demands, liabilities or losses, including reasonable attorney fees and disbursements, brought or made as a result of any acts, including omissions by RETASK, its employees, agents, servants or subcontractors.
Should a client decide to grant RETASK access to any business and/or personal sensitive or private information, the client does so entirely at their own risk, and the client remains fully responsible for ensuring the security of its data and liable for any subsequent loss it may suffer as a result of granting such access.
In no event whatsoever shall RETASK be liable to the client for any consequential, indirect or incidental damages arising from or relating to its engagement of RETASK.
RETASK’s total cumulative liability in connection with any agreement with a client, whether in contract or delict or otherwise, shall in no circumstances exceed the aggregate amount of fees owed by the client to RETASK for Services performed during the 3 months preceding any settlement or successful adjudication of any claim.
WARRANTIES AND REPRESENTATIONS
The parties warrant and represent that they are free to enter into an agreement with each other and by doing so do not violate the terms of any other agreement.
RETASK warrants and represents that it has the skills and experience to provide the Services.
RETASK undertakes that Services will be rendered in terms of the specifications, requirements and other terms set forth herein and in terms of the attached SOW, as amended or supplemented from time to time.
DELIVERY AND DEEMED DELIVERY
In the event that the client deems that the Services are not in terms of or correspond with a SOW, the client shall inform RETASK within 3 working days of delivery of such Services. RETASK may remedy, supplement or replace such Services to the extent as specified in terms of the SOW without extra charge to the client.
If the client does not give RETASK any notice of Services not being in terms of or corresponding to the SOW within 3 working days of delivery, the Services shall be deemed duly rendered and received and payable in terms of a SOW.
In the event that a client’s subsequent notification goes beyond the scope of engagement a SOW’s specifications, the notificaton will not be considered a remedial request but one for additional services or changes and RETASK will inform and charge the client with regards to the requested changes.
IMPOSSIBLE PERFORMANCE
RETASK shall not be considered in breach of an agreement to the extent that reasonable performance of the obligations outlined herein is delayed or prevented by an event of force majeure, including but not limited to:
Acts of God, natural disasters (such as, but not limited to, pandemics or endemics, fires, explosions, earthquakes, drought, tidal waves and floods);
Civil unrest, rioting, hostilities, war, invasion, mobilisation, requisition, or embargo or sanctions; any acts of military, revolution, insurrection, or governmental coups;
any disruptive acts of civil authorities such as but not limited to any disruptions in electricity supply (i.e. “load-shedding”), water rationing, strikes, go slows, lock outs or civil disorder.
JURISDICTION & DISPUTE RESOLUTION
The validity, interpretation, construction and performance of an agreement concluded with RETASK shall be governed by the laws of South Africa, without giving effect to the principles of conflict of laws.
The Parties may agree to alternative methods of dispute resolution, including negotiation, mediation and arbitration.
Unless any alternative dispute resolution procedure is agreed between the parties within a period of 14 (fourteen) days of declaring a written dispute by the one party to the other, the parties agree to submit to the exclusive jurisdiction of the High Court of South Africa in respect of any dispute which arises between the parties.
SEVERABILITY
If one or more provisions of an agreement between the parties is held to be unenforceable under applicable South African law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision within a period of 14 (fourteen) days of date of declaration of such a dispute, then:
such provision shall be excluded from an agreement,
the balance of the agreement shall be interpreted as if such provision were so excluded and the balance of the agreement shall be enforceable in accordance with its terms.
NOTICES
All notices, waivers and other communications (“Notices”) shall be in writing and addressed to the parties to their nominated addresses as notified between them from time to time.
All such Notices shall be delivered by email or at the address which the parties may designate to each other through personal delivery courier or registered mail.
GENERAL
A SOW (as amended or supplemented) together with these general terms and conditions (as may be amended without notice by RETASK from time to time) shall constitute the entire agreement between RETASK and a client, and the latest thereof supersede all prior or contemporaneous agreements, representations, warranties and understandings between RETASK and the client.
Any agreement between the parties may be executed in counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
Where any client acts on behalf of a legal entity, such natural person shall be deemed jointly and severally liable for the obligations of the client towards RETASK, the one performing, the other to be absolved.
