STANDARD TERMS AND CONDITIONS OF ENGAGEMENT

PREAMBLE

Whiley and Associates Inc., is a South African law firm, situated at Floor 0, The Hudson Building, 30 Hudson Street, de Waterkant, Cape Town, specialized in providing commercial legal services (hereinafter “the Firm” or “Whiley and Associates”). Whiley and Associates is committed to providing its clients with the highest quality of legal services. These Standard Terms of Engagement will apply to all engagements between Whiley and Associates and a client unless otherwise specifically agreed in writing. These Standard Terms of Engagement may be supplemented by additional standard provisions and or a letter or contract of engagement or mandate relevant to the client.

  1. INTRODUCTION
    • The following documents will constitute will constitute the entire agreement relating to the Firm engagement by a client: (i) any letter or contract of engagement or mandate and fee agreement; (ii) these Standard Terms of Engagement; (iii) any additional standard provisions supplementary to these Standard Terms of Engagement; (iv) any other terms and conditions agreed between the Firm and the client; (v) and any amendments or additions, addendum to any of the foregoing as agreed from time to time. In the event of any conflict between these terms, the documents shall be construed in the order of priority in which they are referred to above, subject to any amendments.
    • Any reference to the Firm, ‘we’, ‘our’ and/or ‘us’ shall refer to the Firm to which your instructions have been given. ‘You’ and ‘Your’ refer to the client (jointly, if more than one, and not individually) with which the Firm engages. Unless otherwise specifically agreed, you and your do not refer to and no attorney/client relationship will exist as to persons or entities related to the client.
    • Our policy is to act at all times in accordance with the highest professional, ethical, and business standards, and we expect you to act in like manner in all your dealings with us and your business counter-parties. We do not countenance bribery or corruption in any form and you agree (i) not to expect or request any conduct from us that might bring our name into disrepute or compromise our integrity; (ii) that you and your employees and agents will refrain from any practices involving bribery or any other corrupt activities; and (iii) that you have taken or will take internal steps or procedures designed to ensure compliance with all applicable anti-bribery and corruption laws.
  2. NATURE OF RELATIONSHIP
    • When you instruct the Firm to represent you on an individual matter, we will write to you with confirmation of the director, and attorney who will act on your behalf, and confirmation of any other affiliate entities that will provide services about the matter; the scope of work agreed and undertaken by us and any assumptions on which it is based; the fees and invoicing arrangements; any applicable limitation of liability; and the governing law applicable to the contractual relationship with you and the choice of jurisdiction for resolving any issues.
  3. OUR FEES
    • We will agree our fees for any matter with you at the appropriate time. Any fee estimate we give you for a matter is based on our knowledge of the matter and our assessment at the time we give you the estimate of the amount of work needed to fulfil our instructions. If any of those assumptions, or our assessment, proves to be incorrect or you alter our instructions, the estimate may not be accurate. An estimate is not definitive and is not an upper limit for our fees.
    • Our fees are billed and payable on receipt and in the currency in which they are submitted. If you ask us to provide bills using an e-billing solution you understand that: we will send your information to our and your third-party supplier(s) to enable us to comply with your request, and the transfer is at your risk; any costs arising out of the use of your third party supplier shall be borne by you; and our compliance with your request shall not reduce the fee otherwise chargeable by us.
    • If you are required by law to deduct or withhold any amount when paying a bill, you will pay us an additional amount to ensure that we receive a net sum equal to the amount of the bill. Where we are required to charge VAT, we will charge VAT in addition to any of the amounts in terms of these Standard Terms and Conditions of Engagement. Any specific arrangement in an engagement letter or fee mandate agreement or similar document that pertains to the applicable rate of VAT (zero rate or the standard rate) is specifically incorporated herein.
    • Invoicing and payment terms:
      • Invoicing will be monthly or at alternative times arranged with you, or otherwise at intervals we consider appropriate for the matter.
      • You must settle our account upon receipt of our invoice.
      • We need to approve in advance any proposal for any part of one of our bills to be paid by a third party. Notwithstanding our approval, you agree that you will remain responsible for paying the whole bill and any interest accrued on it.
      • Unless otherwise agreed, any other associate entity involved in any of your matters will provide statements of their fees and charges to the Firm. The Firm will include such fees and charges in its statements to you, which you will be obliged to pay, so that we can remit payment to such other associate entity.
    • If a bill and/or invoice remains unpaid thirty (30) days after the date of invoice:
      • You agree that the Firm may be entitled to charge interest, as applicable, at the rate and under such arrangements allowable by law and professional regulations, or as may be provided for in any additional standard provisions or agreement between you and us; and
      • Upon giving you written notice, we may cease work on the matter to which the bill relates and any of your other matters. You agree that we are not responsible for any loss, or damages, resulting from such inactivity. If the matter is litigious, we may remove ourselves from the Court or tribunal or arbitration of record.
    • Withholding or similar tax:
      • You must pay all sums free of any withholding tax or other relevant deduction, except as required by law. If the law requires a withholding tax or other relevant deduction, you must pay such amount as will leave us with the same amount we would have received in the absence of a requirement to make such withholding.
    • Liquid damages:
      • Should you not reimburse us in accordance with these Standard Terms and Conditions of Engagement for any invoice containing any such costs, charge or disbursements, then such costs, charges or disbursements shall immediately become overdue, owing and payable to us and, being agreed liquidated amounts in money, will entitle us to seek summary judgement against you in the event that legal proceedings are instituted against you for the recovery thereof.
    • Where we are required by any governmental or regulatory body, or by a service provider appointed by you, to submit one of our bills to audit, to produce documents, or provide information of any matter which you have instructed us to represent you in, we are entitled to charge and chill you for the work involved, including disbursements, as applicable, at the rates agreed for that matter. If legal privilege attaches to any documents, you will either waive the privilege or instruct us to represent you concerning their review and confirm such privilege.
    • Bill of Costs in respect of litigation matters and the taxation thereof shall be agreed between the Parties on an as-needed basis, including the fees and/or costs incurred for drafting and taxation of the bill of costs in addition to the fees and disbursements thereto. the event of a dispute regarding the drafted bill of costs, you agree that an independent bill of costs consultant of not less than five (5) years of experience shall be appointed to act as a taxing master in in-house taxation to be arranged by the Firm, within twenty-one (21) days of delivery of written notice to you of the taxation date. The decision of the independent bill of costs consultant will be final and binding on all Parties and endorsed by the master of the High Court. You will bear the cost of the in-house taxing master.
  4. DISBURSEMENTS AND OTHER CHARGES
    • We may instruct counsel or engage correspondent attorneys, experts, or others on your behalf at your expense, where we believe it is in your best interest to do so. We will consult you before doing so if such instructions or engagements will result in significant fees becoming payable.
    • We may charge you for photocopying, scanning, telephone and mobile calls, travel expenses, searches, court fees, data or deal rooms or boardrooms, and other services at our or the relevant third-party provider’s standard rates from time to time and other expenses incurred in the performance of our services. These aforesaid charges will be included in our bills and will not include any markup of expenses for which the precise cost can be readily determined but may vary from or exceed the third-party provider’s direct cost for services for which the precise cost cannot be readily determined.
  5. DEPOSITS
    • We may request a deposit to cover our reasonably anticipated fees or disbursements before we start working on a matter. In any event, you must reimburse us promptly for: costs and charges for printing, copying (or similar services) and of counsel, experts, and accountants (or similar service providers), we undertake or engage on your behalf; and disbursements (third party expenses, such as external search fees) and business travel (or similar) expenses which we incur.
    • We will deposit any money we hold on your behalf with a regulated financial institution and manage it under the laws and professional regulations applicable to the Firm. You agree that we are not responsible for any loss of funds so deposited and managed.
    • We may request a deposit from you, to be paid in advance, on account of our fees. Any deposit received from you will be held in trust and applied to your final statement of account at the end of each month or any current statement of account. Any interest accrued, if any, Unless you and we have agreed otherwise, we may also apply any part of the money in settlement of any outstanding interim bills we submit to you.
  6. COMMUNICATION WITH US
    • When you seek and receive legal advice from us on your rights and obligations, legal advice or attorney-client privilege will be attached to our communications related to that advice. If we act for you in contemplated or actual legal proceedings, litigation or attorney-client privilege will attach to our communications related to those proceedings.
    • You agree that we may communicate with you using electronic means, knowing that certain risks (including, for example, interception, unauthorized access, and risk of viruses) are associated with such means of communication.
    • Email and various other software and platforms (such as Microsoft 365, e-signature, virtual data room, contract management and e-discovery software) use secure cloud-based technology. Cloud-based technology has become widely used in the legal industry and is provided by specialist third-party service providers. You may also instruct us to use such or similar technology in the delivery of your matters. This technology involves information being hosted on an external platform (such as Microsoft Azure Web Services), which may be located in South Africa or internationally, and utilise a number of security processes and controls designed to ensure that confidential information is kept secure and protected from unauthorised access. Provided we comply with all applicable laws, you agree to our use of cloud-based technology. As far as the law allows, you agree that we may monitor and record electronic communications, and communications to ensure compliance with our legal and regulatory obligations and internal policies.
  7. LIMITATION OF LIABILITY
    • You agree to indemnify and hold us harmless, including our directors (if applicable), officers, employees, and agents indemnified from and against and all loss, actions, demands, damages, liability, costs, and expenses (including legal fees and costs) incurred by us, however so arising in connected to the services provided by us. Further, any liability for any claim directly or indirectly out of the performance of the services rendered shall be limited to and not exceed an aggregate amount equal to the amount that we may recover under our professional indemnity insurance cover. Any claims against us may only be enforced against the proceeds of its professional indemnity insurance cover.
    • Limitation of liability for viruses or cyber-attacks:
      • As far as the law allows, we are not liable if our cyber-security filtering software or other virus or electronic protection does not function or it malfunctions and your systems are infected by any email or other form of delivery of information (such a memory stick or via the internet) from us.
    • Cybercrime:
      • Due to the growing risk of cyber scams (including business email compromise and impersonation fraud), you agree to take reasonable steps including telephonically verifying with your known contact that the bank account details received electronically are our bank account details before making any payment to us. We will not be liable for payments made to the wrong account.
  8. CONFIDENTIALITY AND CONFLICT OF INTEREST
    • We will keep all information obtained from you, which is not in the public domain, confidential, and will only otherwise disclose it with your authority; if required to do so by law or court order; or if required or permitted by applicable rules of professional conduct. You specifically agree that we may disclose any relevant information:
      • To protect and/or defend us in any actual or threatened legal, civil, or regulatory proceedings; and
      • In confidence to our insurers, insurance brokers, auditors, bankers, and other providers of financial services and other advisors if and to the extent such disclosure may occur without waiving or losing any applicable legal privilege.
    • You will provide us and instruct your other advisers and any co-venturer or other co-participants to provide us, on any matter on which we are instructed, with all relevant information and documents, all of which will have been properly obtained and on which we may rely without verification. You agree that, unless instructed by you otherwise, we may disclose any relevant information to your other professional advisers.
    • Due to the nature of the Firm’s practice, situations may arise when least expected, which may fall out of the control or reasonable foreseeability of the Firm where a conflict of interest occurs. It is possible that current and future clients of ours may come into contact with you, and we must agree with you on certain matters in relation to conflicts of interest to preserve our ability to represent you while also preserving the rights of our client or potential clients to choose us to commence or continue as their counsel. Further, during the time we may be working for you, an existing or future client may seek to engage us in connection with a matter in which that client’s interests are or potentially may become averse to your interests. In that regard, you:
      • Consent to, and waive any conflicts of interest regarding our representation of any current or future clients (including any parties adverse to you in any matter in which represent or have represented you) in any matter that is not substantially related to any other matter on which we represent or have represented you, even if their interests are directly adverse to you or your interests in such other matter. Such current and future clients may include your investors, financial advisors, debtors, creditors, competitors, adversaries, or others who have interests that are contrary to your interests;
      • Agree that no engagement that we have undertaken or may undertake on your behalf will be asserted by you either as a conflict of interest with respect to or as a basis to preclude, challenge, or otherwise disqualify us from our representation of, any current or future clients (including any parties adverse to you in any matter in which we represent or have represented you) in any matter that is not substantially related to any matter on which we represent or have represented you. Such current and future clients may include your investors, financial advisors, debtors, creditors, competitors, adversaries, or others who have interests that are contrary to your interests;
      • Acknowledge that another client’s interests will not normally be considered adverse to yours merely because the other client is a business competitor, customer, or supplier of yours, or is asserting through us legal positions or arguments that are inconsistent with those you are asserting or may wish to assert, or is adverse in interest in another matter to an entity with which you have a relationship through ownership, contract or otherwise;
      • Agree that you fully understand the scope and application of these provisions and your consent and waiver is voluntary and fully informed;
      • Agree that you intend for your consent and waiver to be effective and fully enforceable, and to be relied upon by us without future reference; and
      • Agree that you have had the opportunity to obtain independent legal counsel with respect to the terms and conditions of these provisions and this consent and waiver and have either consulted with independent legal counsel or chosen not to do so.
    • We agree, however, that your consent and waiver do not permit us to represent another client in a matter if we have obtained your non-public proprietary or other confidential information from you that could be used by that other client to your material disadvantage unless we take timely and adequate steps to protect your confidential information. For the avoidance of doubt, your agreement to these terms and conditions and the consent and waiver will have no adverse impact upon our representation of your interests in any matter on which we currently represent you.
    • For the purposes of publicity and clearing conflicts, you agree that we may, unless you instruct us otherwise, disclose (a) our role as legal advisers in any matter on which we are instructed following its completion and (b) the fact that we have a relationship with you. Where in (a) the matter is publicized after completion, whether by you or a third party, you agree that we may disclose our involvement, referring only to the information that is already in the public domain.
  9. COMPLIANTS
    • Any concerns or complaints about our work should be directed initially to the partner/director responsible for carrying out your instructions or, if you prefer, to the relationship partner/director. We maintain internal procedures that can be employee should a concern or complaint require escalation beyond the responsible partner/ director. The laws and professional regulations applicable to us may also provide formal complaint procedures.
    • Further, you should raise any queries regarding any of our bills with the partner or director responsible for the matter as soon as possible. If any part of one of our bills is queried by you or the relevant payer, you agree to immediately pay, or procure payment of, those parts not subject to query.
  10. COMPLIANCE WITH LAW
    • Various laws and regulations on anti-money laundering and terrorism apply to us. When we ask you to give us relevant information to perform customer due diligence (CDD) checks, you must provide us this information promptly.
    • We may be unable to carry out your instructions if we are unable to verify your identity or, in some instances, the identities of your directors, shareholders, and eventual beneficial owners. We shall only process such identifying documents and information to prevent money laundering or terrorist financing, or a breach of sanctions laws or regulations, and to fulfil any other legal and regulatory obligation and shall retain it for the period necessary as permitted or required retention and limitation periods and in accordance with our data protection obligations.
    • We may be required by law or regulation to report to a governmental or regulatory authority our knowledge and/or suspicion that certain criminal offenses have been committed, regardless of whether such an offense has been committed by a client of ours or by a third party. We may not be able to discuss such reports with you because of restrictions imposed by those laws and regulations, and we may have to cease acting for you in those circumstances. You agree that we are not responsible for any adverse consequences you may suffer as a result of our compliance with such laws and regulations.
  11. FORCE MAJEURE
    • Neither you nor we will be responsible for failure to perform our respective obligations concerning your instructions (save for your responsibility to pay our bills in full) if the failures are due to causes outside, respectively, your or our control.
  12. COPYRIGHT AND INTELLECTUAL PROERTY
    • We retain all copyright and other intellectual property rights in all material developed, designed, and created by us in the course of performing our services. You may only use and copy material created by us for you, or which we have developed independently of our work for you and used in the course of your matter, in accordance with our advice or specific license terms. All material must be kept confidential by you unless we agree otherwise.
    • We may use all material created and/or modified by us in the course of any matter for legal training, forms, service development (including in the training of artificial intelligence technologies in which event the materials may be hosted on a third party system) and research purposes, without reference to you.
  13. SUSPICIOUS FINANCIAL AND OTHER ACTIVITIES
    • As scams involving fraudulent invoices purporting to be issued by large organizations have become more prevalent, we strongly recommend that you take steps to safeguard your information and orally verify the authenticity of any payment request before responding to it. We will not be responsible for the actions of third parties who use our name or logo in such scams. If you have any concerns regarding the veracity of a payment request or other communication that refers to us please contact our relationship partner or director, the partner or director responsible for carrying out your instructions, or a member of our finance team.
    • You agree to provide us with all requested and required documentation and warrant the authenticity, and true copies thereof are provided. We will not be liable for any loss, damage, delay, or otherwise suffered as a result of our compliance in this regard.
  14. PRIVACY
    • We process all data subjects’ personal information in accordance with our privacy policy, as may be amended from time to time. Consent by you: you give personal information to us about any data subject for the purposes of a matter, you warrant that you have a lawful basis to share that information or that you have obtained the necessary consent from the data subject for us to process that personal information. Occasionally, you may provide us with personal information with personal information of parties such as your clients or customers or other third parties for purposes of services we provide. In such event, you warrant that you have a lawful basis to share such information or that you have obtained their consent to do so. You further undertake to comply with all the relevant data protections laws and regulations.
    • Insofar as we act as a data controller under applicable Data Protection Laws (which may include UK/EU GDPR, EU General Data Protection Regulations 2016, Protection of Personal Information Act 2024, Cyber Crimes Act 2020) in the provision of our services. We will process personal data/information provided to us by you or your employees or agents in relation to any instruction in accordance with data protection standards required by applicable law and will implement appropriate technical and organisational security measures to protect against unauthorised or unlawful processing of that personal data/information and against accidental loss of, or damage to that personal data.
    • During the term of our engagement, you and we agree to assist one another in complying with our respective obligations under applicable data protection law and will ensure that the provision of personal information/data to the other party is fair and lawful. You agree that you will make our Privacy notice available to your employees or other individuals whose personal data you share with us where the provision of personal data/information is required by applicable data protection law. We in turn agree that we will promptly notify you either: (i) upon receipt of a request or complaint from a regulatory authority or an individual exercising a data subject right in respect of any personal data/information that you have provided to us or that we have obtained on your behalf; or (ii) in the event of loss, disclosure or unauthorised or unlawful processing of such personal data/information. We will cooperate with you and provide all reasonable assistance as may be required in either case.
    • While rendering our services to you, personal data/information (if any) with respect to persons in the European Economic Area (EEA) may be accessible to and used by our affiliates and their contractors and/or agents, including those located outside the EEA where data protection laws may not be as comprehensive as in the EEA, but as to such personal data/information we will ensure compliance with the data protection standards of the Data Protection Laws or higher standards under other laws applicable to such personal data.
    • Where your employees supply their contact details to us, we will only use that personal data in accordance with our Privacy Notice referenced above or as otherwise consented to by them.
    • We may outsource certain functions associated with servicing clients to a service centre dedicated to us, located outside of the EEA, or to other third-party providers. For example, we may outsource information and document management, office support, technology and IT services, word processing, photocopying, and translation services. Some of your personal data/information may be stored using cloud technology managed by a third-party service provider. We employ technical and organizational measures to protect the confidentiality and security of any personal data/information shared with them.
    • We do not undertake to store or retain your files (whether paper or electronic) for any particular period of time but will do so for at least the minimum number of years required by applicable laws and professional regulations. Files may be destroyed at any time after the expiry of such period, without notice, except those files you ask to be delivered to you. You and we agree to maintain reasonable commercial security measures to secure the integrity and confidentiality of any personal information/data that may be processed in accordance with any relevant data protection law(s).
    • By agreeing to these Standard Terms and Conditions, you accept the terms of our Privacy Policy, available on our website at www.whileyandassociates.com.
  15. TERMINATION
    • Either you or we may terminate our engagement at any time by giving reasonable prior notice in writing, subject, in our case, to any applicable laws or regulations. We will only stop acting for you if we believe we have a good reason to do so, including in the circumstances related to our fees, but we retain sole discretion regarding any such decision.
    • If our engagement is terminated for any reason, you agree to pay in full our bills representing fees, costs, disbursements, and other charges (including GST, VAT, or similar taxes, if applicable) up to the time of the engagement’s termination.
    • A solicitor/client or attorney/client relationship exists between you and us only if, at the relevant point in time, we are working under instructions from you; we shall have no duty to provide you advice at any other time concerning changes in laws, rules or regulations that might affect your rights.
    • Subject to termination of this Agreement, we will retain your file(s) for no more than five (5) years, after which the Firm will not destroy documentation without your prior consent. Should you request that the file be stored, we may charge a reasonable storage fee per month.
  16. GENERAL
    • You and we agree that any notice or communication in terms of this engagement shall be in writing to be effective and be sent by hand or email to the addresses reflected on any letter of engagement or mandate agreement. Which physical addresses constitute the appointed respective domicilium citandi et excutandi.
      • Any notice or communication shall: if delivered by hand, during business hours, to a person apparently in charge of the premises at the addressee for the delivery of notices, be deemed to have been received on the date of delivery; and if sent by email, to the nominated email address, be deemed to have been received on the same business day, if sent during business hours, alternatively on the first business day following the date of transmission from the information system under the control of the sender.
      • Any written notice or communication that has been received will be regarded as sufficient notice even if it has not been sent in the manner or to the address provided above.
    • Where you act on behalf of a consortium, an unincorporated joint venture, partnership, or other legal entity, the members of that consortium, joint venture, partnership or other legal entity will be jointly and severally liable for payment of all fees and disbursements incurred in terms of these standard Terms and Conditions of Engagement.
    • Amendments to these Standard Terms and Conditions of Engagement may be needed by us from time to time. In such an event we will post the current Standard Terms of Engagement in effect on our website, but these will not affect any matter on which we are then currently instructed.
    • These Standard Terms and Conditions of Engagement are governed in accordance with the Laws of the Republic of South Africa.
    • As far as the law allows, if we are unable to resolve any dispute related to a matter with you by negotiation, the dispute shall be referred to arbitration to be finally resolved in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed by that Foundation. The arbitration will be conducted in English in Cape Town. Any dispute (including a dispute relating to any non-contractual obligation) will be subject to the exclusive jurisdiction of the High Court of South Africa (Western Cape). However, we retain the right to commence legal action out of any competent court.
    • If the validity or enforceability of any of these Standard Terms and Conditions of Engagement is in any way limited by the laws and professional regulations applicable to us, those laws and professional regulations will take precedence, but these Standard Terms and Conditions of Engagement will be valid and enforceable to the fullest extent permitted by such laws and professional regulations, and such limitation shall not affect the validity or enforceability of any other term.