Definitions and Interpretation

  1. “Agreement” means the Letter, Client Intake Form and the Terms;
  2. “Client, the Client, you or your” means jointly and severally each person to whom the Letter is addressed, and includes any additional person who agrees either expressly or impliedly to be bound by this Agreement;
  3. “Confidential Information” means trade secrets, proprietary information, intellectual property and information of a trade, commercial, financial, or managerial nature and/or any information elected as confidential by either party but excludes information that is or becomes public, information disclosed to any Tax Authority with the Client’s consent or disclosed or known by any Tax Authority prior to our receipt of such information or information that is required by law, judicial order or an order from the Court to be disclosed;
  4. “Connected Parties” means in relation to:
    ▪ Any company: any other company that is its Subsidiary, Holding Company or a Subsidiary of its Holding Company; or
    ▪ Any person (including a public authority, municipality, body of persons (corporate or unincorporated) and 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;
  5. “Effective Date” means from the date the first application is filed by CENTATAX or the date on which CENTATAX commences rendering the Services to the Client or the date of written or electronic acceptance by the Client of the Agreement, whichever is the earlier date or agreed between CENTATAX and the Client;
  6. “Electronic Invoice”, “Electronic Credit Notes” and “Electronic Debit Notes” means an invoice, credit notes and debit notes which is created, transmitted and received in an electronic format;
  7. “Fees” means the fees chargeable by CENTATAX in terms of the Agreement, which excludes VAT and disbursements. Additional fees may also result from material changes in the Services or from difficulties in obtaining information, which could not reasonably have been foreseen. CENTATAX will notify the Client in advance in respect of such additional fees;
  8. “Letter” means the letter of engagement, proposal, or electronic quote to which these Terms are attached;
  9. “Services” means the Services listed or described in the Agreement to be rendered by CENTATAX to the Client (including additional Services agreed to between the parties in writing by way of Annexure to the Agreement).
  10. “SA” means the Republic of South Africa;
  11. “Tax” means Value-Added Tax, Corporate Income Tax, Payroll Taxes, Social Security Payments and Customs & Excise
  12. “Terms” means these terms and any Annexures and Schedules attached hereto;
  13. “VAT” means Value-Added Tax;
  14. “CENTATAX, we, our” means Centatax (Pty) Ltd;
  15. The use of the word "including" followed by specific examples shall not be construed as limiting the meaning of the general wording preceding it, and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific examples.
  16. Unless the context otherwise requires the singular includes the plural and vice versa;
  17. Any reference to any legislation is to such legislation as at the signature date.

Our Relationship with the Client

  1. We provide our Services to the Client as an independent contractor and not as the Client’s employee, agent, partner or joint venture. Neither the Client nor we have any
    right, power or authority to bind the other.
  2. Nothing in this Agreement shall be construed as creating an exclusive relationship between CENTATAX and the Client, or as precluding or limiting CENTATAX from rendering services of any kind or nature whatsoever to any person as CENTATAX in its sole discretion deems appropriate.
  3. The relationship between both parties shall be one of good faith and each party therefore undertakes to observe good faith towards the other, and to act reasonably with respect to the Services.

Limitation of Liability

  1. The liability of CENTATAX, for all claims arising out of the Services provided or advice given in connection with the Agreement or any assignment in relation there to shall be limited to an amount equal to the total Fees charged for all services provided in connection with the Agreement or the applicable assignment. This liability relates to all claims from whatever source and howsoever arising whether in contract, delict or otherwise.
  2. The Client shall not bring any claim personally against any individual, director, employee or agent, as the case may be of CENTATAX in respect of loss or damage suffered by the Client arising out of or in connection with the Services. This restriction shall not limit or exclude CENTATAX as a company for the acts or omissions of its directors, employees and agents. Any claim made by the Client must be made within two years of the date on which it became aware, or ought reasonably to have become aware, of circumstances giving rise to a claim or potential claim against CENTATAX.
  3. Under no circumstances will CENTATAX be liable for any Tax erroneously declared or underpaid by the Client, and the Client hereby confirms to hold CENTATAX harmless and exculpate in respect of any claim made against us by any third party, whether or not a taxing authority, as a consequence or as a result of the performance of our duties herein.
  4. In respect of the above, should any party, whether or not a taxing authority, seek to levy interest, a default surcharge or other tax penalty, whether or not successfully prosecuted, CENTATAX will be entitled to full indemnification from the Client, not only in respect of the amount claimed, but in respect of reasonable expenses in defending or opposing such claim.

Reliance on Advice

  1. Any advice given by CENTATAX to the Client shall be based on the information supplied by the Client to CENTATAX. CENTATAX shall not be liable to the Client or to any third party for any damages suffered as a result of the Client failing to disclose any relevant information or by providing incorrect information to CENTATAX.
  2. No party other than the Client shall be entitled to rely on advice given by CENTATAX to the Client for any purpose whatsoever.
  3. The Client indemnifies CENTATAX against any claim by any third party arising from advice given by CENTATAX to the Client.
  4. Any advice that is provided to the Client orally or in draft format shall not be relied on by the  Client, and only final or signed, whether signed by hand, by email signature or electronic signature, advice may be relied on. The Client hereby indemnifies and holds CENTATAX harmless against any loss, damage or costs arising from the reliance by the Client or a third party on any oral or draft advice.
  5. CENTATAX shall be under no obligation to update any advice, report or any product of its Services for events occurring after the advice, report or any other product of its Services has been issued  in final form.

Obligations of the Client

  1. The Client shall be responsible for determining that the scope of the Services is appropriate and adequate for its needs.
  2. To enable CENTATAX to perform the Services, the Client shall use its best endeavors to procure and promptly to supply all Information and assistance, and all access to documentation in its possession, custody, or under its control, and to personnel under its control, where required by CENTATAX. Where such information and/or documentation is not in your possession, custody or under your control, you shall use your best endeavors to procure the supply of the information, assistance and access to all the documentation.
  3. The Client must ensure that all information provided to CENTATAX is true, accurate, complete, relevant, current, not misleading and will not infringe any copyright or any other third-party rights. CENTATAX will bear no consequences which is as a result of Information received from the Client, which is not true, accurate, complete, relevant and current or infringes any copyright or any other third-party rights.
  4. The Client undertakes that it will not engage in and/or appoint any other service providers which offers the same or similar Services as CENTATAX after acceptance of the attached engagement, unless ratified by CENTATAX in writing or when the Agreement expires as per terms 57, 58 and 59 of these Terms.
  5. The Client shall assign a qualified person to oversee the Services. The Client is responsible for all management decisions relating to the Services, the use or implementation of the Services.
  6. The Client agrees that CENTATAX may use the Client as a reference to other prospective clients unless the Client specifically withholds permission for such disclosure.
  7. The Client will be responsible for all VAT payments to Tax Authorities as prescribed and CENTATAX will not be liable for any payments whatsoever.
  8. Unless specifically instructed by the Client, and agreed to by CENTATAX, CENTATAX will not
  9. be responsible for the implementation or ongoing monitoring of our advice.

Subcontracting

  1. We are a member of the global VATIT Group, each of which is a separate legal entity.
  2. We may subcontract the Services or portions thereof to other VATIT entities, as well as other service providers, who may deal with the Client directly. Nevertheless, we alone will be responsible to the Client for the work listed in the scope of our Agreement.
  3. The Client will not interfere with or impede the relationship between CENTATAX and its subcontractors, or suggest or cause the subcontractors to modify, cancel, fail to renew or extend their agreements with CENTATAX.
  4. CENTATAX will assume full responsibility for making payment to its subcontractors, and no subcontractor will be entitled to seek payment directly from the Client for goods and services rendered to CENTATAX.

Payment of Fees

  1. We will add VAT to Fees unless VAT is not applicable.
  2. In the event that the work or the Services are required to be rendered outside of SA, and as a result of which additional taxes or levies become due which are not offset by credits from any Revenue Authority having authority in SA, then, subject to this being permissible under the tax legislation of SA and the country where the Services are rendered, the Fees shall be increased by the amount of such additional taxes or levies.
  3. Where the Services are performed on a contingent basis, payment will be due by the Client to CENTATAX within fourteen (14) days of receipt of any VAT refunds in the Client’s bank account or receipt of a cheque issued to the Client, or a reduction in the Client’s VAT liability, whichever occurs earliest.
  4. In respect of CentaTaxDesk Services, invoices shall be payable by no later than the first (1st) day of every month, in advance.
  5. All other fees are payable within thirty (30) days from date of invoice.
  6. In the event that CENTATAX receives the VAT refund claims on behalf of the Client, CENTATAX will be entitled to deduct any bank or handling charges from the refunds if and where applicable.
  7. CENTATAX shall have the right to halt or terminate entirely the Services during any period in which any Fees or VAT are overdue but, despite written demand, remain unpaid by the Client.
  8. Where the Client does not pay CENTATAX the full amount of the Fees within the periods as listed in Terms 43,44 and 45 above, then CENTATAX shall thereafter charge the Client interest at the prime interest rate, as determined by taking an average of the commercial lending rates in the market, on the amount outstanding.
  9. Should a dispute arise relating to any Fees, Expenses or payment due to CENTATAX, the Client must notify CENTATAX of the disputed amount(s) and the reasons for the dispute in writing within 30 (thirty) days of the date of the disputed invoice, failing which the Client shall be deemed to have accepted the invoice as correct, due and payable.

Ownership

  1. CENTATAX shall retain ownership of the copyright and all other intellectual property rights in the product or the Services, whether oral or tangible as well as ownership of our working papers for the purposes of delivering services to you or other clients, we shall be entitled to use or develop knowledge, experience and skills of general application gained through performing the services.

Communication

  1. If our communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects or electronic transmission, you should request a hard copy of such transmission from us. If you require us to password protect all or certain documents transmitted, you should request us to do so.
  2. Where any notice or correspondence is sent by email, the notice or correspondence will be deemed to have been given the next business day.
  3. CENTATAX may correspond, convey documentation, and generally communicate with the Client electronically on the basis that the Client consents to this method of communication and accepts the inherent risks (including security risks, interception and unauthorised access to such communications).
  4. The Client agrees to accept Electronic Invoices, Electronic Credit Notes and Electronic Debit Notes issued by CENTATAX.
  5. The Client acknowledges that it was presented with the option to execute the Agreement electronically and is legally bound to the electronic Agreements between CENTATAX and the Client, binding all parties to the same degree as a handwritten signature.

Duration and Termination

  1. This Agreement will commence on the Effective Date and will be in full force and effect for a Two (2) year initial period (“Initial Period”) from the Effective Date. After the Initial Period, this contract will automatically renew itself for further one (1) year periods (“Subsequent Periods”), even if there is a change in the Client’s group structure.
  2. This Agreement will only be cancellable if either party terminates the Agreement by providing in writing its intention to terminate this Agreement to the other party ninety (90) days before the end of the Initial period or any Subsequent period.
  3. Termination or suspension under this clause shall be without prejudice to any rights that may have accrued for either party before termination or suspension and all sums due to us shall become payable in full when termination or suspension takes effect. CENTATAX will be entitled to raise a fee note upon receipt of such notification for an amount adequate to cover all work done to date and not yet billed including disbursements incurred. On termination, each of us on request will, return any property belonging to the other that it has in its possession. We may retain one copy of any documentation upon which the Services are based to enable us to maintain a professional record of our involvement.

Confidentiality

  1. CENTATAX and the Client undertakes not to divulge or disclose to any third party (excluding any parties in Terms 37 and 38 of these Terms involved in rendering the Services) in any form or manner whatsoever, either directly or indirectly, any Confidential Information of any party without the consent of the other party.
  2. CENTATAX and the Client undertakes not to, directly or indirectly, detract from, expand on, amend, decompile, reverse engineer, use, exploit, permit the use of, or in any other manner whatsoever apply the Confidential Information for its own benefit or the benefit of any other person or for any purpose whatsoever other than for the otherwise than in accordance with the provisions of this Agreement.
  3. All Confidential Information is and shall remain the property of the discloser and that disclosure thereof does not grant the receiver any express or implied license to use such Confidential Information or right other than as provided for in this Agreement.
  4. CENTATAX is entitled to, in compliance with the applicable laws and its professional obligations, to retain copies of all Information of the Client which is relevant to or forms part of the Services.
  5. CENTATAX may share the Confidential Information with its Professional Advisors or insurers in the event of a claim arising from this Agreement.
  6. Each Party shall procure that its employees, professional advisors, agents and consultants comply with the requirements of this Confidential Information clause.
  7. The Client acknowledges that the collection of personal information as defined in the Protection of Personal Information Act (“POPI Act”) is necessary and required for the provision of our Services. This includes, but is not limited to identifying number, symbol, e-mail address, physical address, telephone number, location information of the Client, Connected Parties and associated employees.
  8. The Client confirms that its obtained consent from Connected Parties and its employees to share personal information as define in the POPI Act as it pertains to the Services.
  9. Both Parties will ensure that personal information shared amongst them will be collected, processed, stored in accordance with the provisions of the POPI Act. Both Parties will further ensure that steps are taken so to protect the interception and unauthorised access of the personal information of the other party. The Services shall be delivered on the basis that the Client shall not quote our name or reproduce our logo in any form or medium without our prior written consent.

Staff

  1. The Client agrees not to make any offer of employment or to employ any member of the CENTATAX staff working on any Services supplied to you by CENTATAX for a period of twelve (12) months following the end of any involvement by the individual concerned without our written consent.
  2. Should you make any offer of employment to any person currently employed by CENTATAX, or who was employed by CENTATAX for the immediately preceding twelve (12) months from the date of such offer of employment, you will be liable for, and will pay to CENTATAX, a placement fee equal to twenty five percent (25%) of such employee’s total annual cost to company, excluding VAT.
  3. Our staff undergoes periodic training and this, together with the taking of annual leave, may lead to staff turnover and lack of continuity. We will use our best endeavors to avoid any disruption to our Services in progress.

Force Majeure

  1. No party shall have any claim against another party for any delay or failure to carry out any of the obligations under this Agreement arising from or attributed to circumstances beyond its reasonable control such as acts of God, fire, flood, war, strike, lockout, industrial dispute, government action, laws or regulations, riots, terrorism or civil disturbance, or other circumstances or factors beyond the reasonable control of either Party.
  2. Each Party will take all reasonable steps by whatever lawful means that are available, to resume full performance of the Services and obligations under this Agreement as soon as practicable and will seek agreement to modification of the relevant provisions of this Agreement in order to accommodate the new circumstances caused by the act of force majeure.

Governing Law and Jurisdiction

  1. This Agreement and any non-contractual matters or obligations arising out of this Agreement or the Services, shall be governed by, and construed in accordance with, the laws of South Africa.