Sian Evans and Associates: Terms of Service

Sian Evans and Associates (”we”, “us” and “our”) is a legal consultancy.

Instructions and scope of engagement: These terms of service, as supplemented or amended by any relevant Letter of Engagement or estimate (”LOE”), apply to each specific instruction in relation to which you, our client, ask us to provide services to you irrespective of whether it has been defined in the LOE or not. No variation of these terms of service shall be effective unless in writing and signed by us. Unless otherwise agreed, these terms of service apply to any future work which you instruct us to do. Your continuing instructions will amount to your deemed acceptance of these terms of service.

Companies: If we are instructed by a juristic person (e.g. company or a close corporation, partnership, trust) you must establish at the outset who is to be nominated to deal with us. In the absence of such nomination, we will assume that we are entitled to take instructions from any director, member, partner, trustee or other senior employee unless you inform us in writing that we may not do so.

Fees: Our fees may comprise:

  1. a fixed cost component for the various precedents that we may use when drafting the agreement, terms or conditions or policy (”document”) together with,
  2. a time based component based on the amount of time it takes us to customise the document we might use, or
  3. a pure time based fee based on the time that we spend on dealing with an instruction.

Fixed cost component: When calculating the fixed cost component, we take into account a number of factors that include reading around the subject matter of the transaction to provide additional, necessary context, the complexity of the issues (both factually and legally) the relevance and importance of legislative compliance issues and the level of detail required in the document being prepared.

Time based fee: Time spent on each instruction will include (as examples only):

  1. meetings with you and perhaps others (either over the phone or face to face, including the time it takes to prepare a written record of the meeting), any time spent travelling, waiting, preparing and working on papers,
  2. making notes,
  3. letters, e-mails, faxes in and out, making and receiving telephone calls,
  4. research (including surfing any websites) and (v) time spent on customising precedents and the preparation of any detailed changes to any documents we prepare.

In addition to the time spent, we may take into account a number of other factors. These include the complexity of the issues, the speed at which action must be taken or the expertise or specialist knowledge that the case requires. These factors would normally be taken into account in the fee estimate quoted in your LOE.

Fee estimates: Our provision of any quote to you (whether orally or in writing) from time to time for the likely cost of a piece of work is an estimate only and does not constitute a contract to carry out the work at that cost until you accept the quotation or a defined part of it. Where we carry out work which falls outside the scope of an accepted quotation (or outside the scope of an estimate that is subsequently incorporated into a contract between us) we may charge fees at our standard hourly rates, in addition to the quoted or estimated fee.

Fixed fees: In certain circumstances we may agree to render the services for a fixed fee. Any fixed fee is based on the assumption that the information required for us to render the services is made available in accordance with agreed timetables and that key personnel are available during the course of our work. If delays or other unanticipated problems occur, which are beyond our control, this may result in additional fees being charged. We will advise you of delays as they occur and will estimate their effect.

Additional Fees: We reserve the right to: (i) charge additional fees for work within the scope of a quotation or estimate or (ii) increase our fixed fees in the following situations: where the scope of the work changes (whether in the amount or complexity of that work or in respect of any other relevant aspect of that work) and where the work is made more time consuming, onerous or urgent as a result of:

  1. circumstances or information which we did not know or could not reasonably have anticipated at the time of the quotation or estimate (whether or not you were aware of them/it), or
  2. if any information you have provided to us regarding the instruction proves inaccurate resulting in an increase in our work, or
  3. your, or your agent’s act or omission.

Rates: The rates which will apply to your matter will be set out in the LOE. We usually review our hourly rates each year and will notify you in writing of any increased rate. We may also increase our rates in the course of a matter to take account of, for example, the factors described in “Time based fee” above. We record time in “units” of 10 minutes each. We may “round-up” time of less than 10 minutes to treat it as one “unit”.

Expenses: Our fees are exclusive of expenses and exclusive of VAT that will be charged at 14%. There are certain expenses we will consult you before incurring such expenses, and others we will not.

  1. Expenses we will consult you before incurring include Court fees, stamp duties and counsel’s fees and other experts and (patent and trademark) search fees, and the cost of travel by aeroplane, car hire and hotel accommodation.
  2. Expenses we will not consult you on before incurring include telephone, fax, copying, local travel, stationery and printing costs as well as the costs of the compulsory storage of your files, which we will recover by means of a standard charge equal to 2% of our fees, with a minimum charge of R150.00 per invoice.

Invoicing and payment: Unless otherwise agreed in writing, all invoices will be rendered electronically. You agree that your signature of our LOE or fee estimate constitutes your written confirmation to accept electronic invoices for the purpose of claiming input tax. Unless specified to the contrary in our LOE, our policy is generally to render invoices on a monthly basis with a brief description of the nature of the work covered by the invoice concerned, unless we consider that invoices should be rendered more or less frequently in light of the amounts involved or the nature of ongoing work. Where we have drafted a document for you which requires your comment and you do not provide us with your comment within 30 days of the document having been sent to you, we shall be entitled to invoice you for the services rendered. Our invoices are due for payment within 7 days of presentation. We reserve the right to charge interest at 2% above prime, compounded monthly in arrears, on invoices which remain unpaid for more than 30 days. You are requested to please make payment by way of a direct transfer into our banking account, the details of which are reflected at the foot of each account.

Provision of information to us: It is your responsibility to provide us with complete, accurate and timely information where we have requested this, and to carry out any other obligations ascribed to you or others. We will not be responsible for any consequences which may arise from any delay or your failure to do so, and these may also result in additional fees being charged.

Provision of advice: We will provide the services to you with reasonable skill and care in accordance with the professional standard expected of us, and in a timely manner. The nature and content of any advice we provide will necessarily reflect the law as it applies in South Africa at that point in time. It will also reflect the specific scope and limitations of a specific instruction as set out in our LOE. If at your request we provide our advice in an abbreviated format or time scale, you acknowledge that you will not receive all the information you would have received had we provided a full written report, or had more time in which to carry out the work.

Provision of opinions: The law can be interpreted in many different ways and therefore we are only able to give you our opinion on how the law will be interpreted. We cannot and do not guarantee our opinion nor give any representation, warranty, or indemnity with regard to it. We do, however, act strictly in accordance with the professional standard to be expected of us in giving the opinion.

Reliance on advice: Our advice is provided for your benefit. Accordingly any advice given to you (whether verbally or in writing) shall be based on the information you supply to us and we are not liable to you or to any third party for any damages suffered as a result of your failure to disclose any relevant information to us. Our advice is also provided to you in a particular context based on your unique facts and circumstances. Accordingly, our advice is given for your sole use and may only be relied on by you. No party other shall be entitled to rely on advice given by us to you for any purpose whatsoever. You are solely responsible for:

  1. making all management decisions and performing all management functions;
  2. designating a competent management member to oversee the services;
  3. evaluating the adequacy and results of the services;
  4. accepting responsibility for the results of the services; and
  5. establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.

We accordingly disclaim any responsibility for the use our advice for a different entity or in a different context and you hereby indemnify us against any claim by any third party arising from advice given by us to you.

Intellectual property: We retain all copyright and other intellectual property rights in all documents and other works we develop or generate for you in providing the services (including know-how, working materials and final documents). We hereby grant you a non-exclusive, non-transferable license to use these documents or other works solely for the instruction to which the services of developing or generating them relate, and not otherwise. If you do not pay us in full for our services in relation to that instruction, we may revoke that license and only re-grant it to you once full payment has been made. We may retain, for our subsequent use, a copy of the advice or opinion of counsel or other third party given in written form obtained in the course of providing the services. If we retain a copy of any advice or opinion in this manner, we will take all reasonable steps to conceal information (such as names, addresses or descriptions) which might reasonably enable you to be identified.

Communications: Unless otherwise directed by you, we will correspond with you by means of electronic mail. Whilst we take reasonable steps to safeguard the security and confidentiality of the information transmitted, we:

  1. do not encrypt our electronic communications; and
  2. cannot guarantee its security and confidentiality.

While we do check all outgoing correspondence with anti-virus software, we cannot guarantee that transmissions will be free from harmful code. If the communication relates to a matter of significance on which you wish to rely and you are concerned about the possible effects of electronic transmission, you should request a hard copy of such transmission from us. If you wish us to password protect all or certain documents transmitted, you are requested to please discuss this with us and we will make appropriate arrangements.

Promotional materials: You consent to us referring to:

  1. the fact that we rendered services to you, and
  2. the nature of the services rendered to you in our promotional material.

Limitation of liability: Our liability to you in respect of any loss or damage which may be suffered by you arising from the services (whether arising under contract, delict, strict liability or otherwise, irrespective of whether the services have been terminated or not) shall:

  1. exclude liability for any consequential, exemplary, extrinsic, indirect, incidental, punitive, pure economic or special loss or damage of any kind whatsoever and howsoever caused (”Losses”),
  2. be limited to direct damages only, and
  3. be limited to the total amount of the fees paid by you in connection with the services rendered in any particular instruction.

We are not liable to the extent that the loss or damage results from something you do or fail to do (such as giving us the wrong information or not giving us information at a time we ask for it).

Indemnification: In the event of any third party making any claim against us for any Losses arising from any cause in connection with the services we render to you, whether such Losses result from breach of contract, delict, negligence or any other cause without limitation, and whether our services are terminated or not, you hereby indemnify us against any such claim, unless it is finally determined that the loss or damage was caused by fraud or intentional misconduct on our part or any or our employees or agents.

Termination: If you wish us to stop acting for you, you may terminate your instructions to us in writing at any time. We will only exercise our right to stop acting for you if we have good reason to do so (for example if a conflict of interest comes to light or if you do not comply with our request to pay an account). We will give you reasonable notice that we will stop acting for you. If you terminate your instructions to us or if we stop acting for you, you will be invoiced for our fees and expenses up to the time we stop acting.

Dispute resolution: If any dispute arises out of or in connection with the services that we render to you the dispute must be referred for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of arbitration. The reference to negotiation and mediation is a pre-condition to the parties having the dispute resolved by arbitration.

  1. Negotiation: If any dispute arises out of or in connection with the services that we render to you, the dispute must be referred to the most senior person at each party in order to try and resolve the dispute by way of negotiation.
  2. Mediation: In the event of negotiations failing, we agree to refer the dispute for resolution by way of mediation within seven (7) days of the negotiations failing. The negotiations shall, inter alia, be deemed to have failed if one of us declares in writing that it has failed.
  3. Arbitration: If the dispute cannot be resolved by way of mediation, then we agree that the matter will be referred to arbitration and that the arbitration will be held as an expedited arbitration in Cape Town in accordance with the then current rules for expedited arbitration by the Arbitration Foundation of Southern Africa (AFSA) by one arbitrator appointed by agreement between us. If we cannot agree on the arbitrator within five (5) days after the referral of the dispute to arbitration, we agree that the arbitrator will be appointed by the Secretariat of AFSA. We agree that the decision of the arbitrator will be binding on us if neither of us has lodged an appeal after the expiry of ten (10) days from the date of the arbitrator’s ruling. We agree that any party may appeal the decision of the arbitrator within ten (10) days after the arbitrator’s ruling has been handed down by giving notice to that effect to the other. The appeal shall be held in accordance with the laws of AFSA by a panel of three (3) arbitrators appointed by AFSA. The decision of the majority of the arbitrators shall be binding on us and may be made an order of Court at the instance of either of us. Notwithstanding the a foregoing, we are not precluded from approaching an appropriate Court of law for interim relief in respect of any urgent matters by way of an interdict or mandamus pending the outcome of the arbitration.

Jurisdiction: Subject to the above arbitration provision, both parties hereby irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa in any dispute arising from or in connection with this Agreement.

Agreement: Any waiver of these terms will only be binding if (i) made (or recorded) in writing, (ii) signed by us and (iii) expressly states an intention to waive these terms.

Changes: These terms of service may be changed at any time by us and where this affects your rights and obligations we will notify you of any changes by placing a notice in a prominent place on this web site (or by email). If you do not agree with the change you should stop instucting us or using this web site. If you continue to instruct us or to use this web site following notification of a change to these terms of service, the changed terms will apply to you.