Website disclaimer (“Terms and Conditions”)
The terms and conditions include materials published on this website that are provided for general information purposes only. It does not constitute legal or other professional advice. While every effort is made to update the information regularly and to offer the most current, correct, and accurate information. We accept no liability or responsibility whatsoever if any information is, for whatever reason, incorrect, inaccurate, or dated. We accept no responsibility for any loss or damage, whether direct, indirect, or consequential, which may arise from our services.
© Copyright Road2Asia 2022. All Rights Reserved.
Terms and Conditions
These terms and conditions (‘Terms’) will apply to the relationship between you and us. In general during our engagement by you, and to each specific Matter. We may vary these Terms from time to time and will notify you in writing when we do so. Definitions, if not provided in the body of the Terms, are in paragraph 22.
1 Important paragraphs
If you are a consumer, as defined in the Consumer Protection Act 68 of 2008 (‘Consumer Protection Act). Then we have a duty to point out certain important terms to you.
1.1 Limitation of our liability
Paragraphs 5.5, 6.2, 10.4, 11, 12, 13, and 15.5 are important. Because they limit and exclude obligations, liabilities, and legal responsibilities that we may otherwise have to you. They also limit and exclude your rights and remedies and place various risks, liabilities, obligations, and legal responsibilities on you.
1.2 Assumption of risk
Paragraphs 10.3 and 10.4 are important. Because they contain assumptions of risk by you and may limit your rights and remedies against us.
1.3 Acknowledgment of fact
Paragraphs 5.1, 5.2, and 5.3 are important because they each contain an acknowledgment of fact by you. You must read each paragraph carefully because they set out how monies are held on your behalf.
Paragraph 13 requires you to indemnify (hold us harmless) us against. In short, any claims that may be made against us in certain circumstances. This may place various risks, liabilities, obligations, and legal responsibilities on you. We may claim payment from you of the amount of these claims.
2 General terms of engagement (“Terms and Conditions”)
2.1 Scope of engagement
You and I will agree on the scope of our engagement for each Matter when necessary.
2.2 Our advice to you
The engagement only creates rights and obligations between you and us. No other person:
- may rely on the advice we give you;
- is intended to be protected by our advice or other Services and other obligations; or
- may enforce any term of your engagement with us through any applicable law.
2.3 Taking instructions and duty of care
We will treat only you as our client for professional purposes. You agree that we may take instructions from you. As well as any other person whom you have authorized to instruct us. Our duty of care is only to you, as our Client. It does not extend to your holding company, subsidiaries, affiliated companies, or other third parties. Unless we agree otherwise in writing.
2.4 Time frames
We will take reasonable steps to complete our mandate and give you any deliverables in the timeframes agreed with you. Or as soon as is reasonably possible in the circumstances.
2.5 Updating advice
We will give you advice based on our understanding of the relevant statutes and practices at the time. Subsequent changes in law and practice may affect the advice. However, we are not obliged to update advice in line with these changes. Unless we have specifically agreed with you to do so, in writing.
3 Fees (“Terms and Conditions”)
3.1 We will agree to our fees for any Matter with you at the appropriate time.
3.2 Fee estimate
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 fulfill 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.
You must reimburse us for:
- costs and charges for printing and 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. This is to say, where it is not stated in the service section itself.
3.4 Travel time
Our fees may include time spent traveling, on your instructions, for the purposes of the Matter.
Where we are required to charge VAT, we will charge VAT in addition to any of the above amounts. Any specific arrangement in an engagement letter or other similar document that pertains to the applicable rate of the VAT (zero rates or the standard rate); is specifically incorporated into these Terms.
4 Billing and payment terms (“Terms and Conditions”)
We will bill automatically via the website, or otherwise, at intervals, we consider appropriate for the Matter.
4.2 Payment and interest
You must settle your account within 14 days. We may charge interest on amounts outstanding up to the legally allowed rate.
4.3 Withholding or similar tax
You must pay all sums free of any withholding tax or other relevant deduction (a ‘Withholding’). Except as required by law.
4.4 Ending the engagement for a Matter
If you inform us that you decide not to proceed with the Matter we may submit our bill to you.
5 Your money
5.1 Funds held on your behalf
If we hold your funds on deposit or as payment. We will apply them to settle any outstanding accounts you owe us.
5.2 Funds held in our trust account
You will not earn any interest on funds we hold in our trust account.
As far as the law allows, we will not be liable for any loss you may suffer arising from:
- any act or omission of the banking institution concerned regarding any account;
- any inability, delay, or failure of the banking institution to repay the funds on demand;
- the identity or choice of banking institution; or
- any interest or exchange rate fluctuation.
6 Internal and external resources
6.1 Appropriate resources
We will involve our employees (including partners) as well as other third parties working for, or with us. Whom we consider appropriate for our engagement with you. Our policy is to involve persons of an appropriate level of seniority. In order to perform your service requests, having regard to the nature of the work.
7 Information and documentation (“Terms and Conditions”)
7.1 Relevant and accurate information
We will perform our mandate based on the information you give us and you agree:
- to ensure that we receive all the information that may affect our mandate. Including any information about a change in circumstances that may influence the position;
- we are not obliged to determine if the information you give us is accurate or complete; and
- unless you ask us, and we agree in writing, we will not verify the information we receive.
7.2 Draft documents
We may send you drafts of documents as we produce them. Such as letters of advice or reports for your review while working on a Matter. You cannot rely on a draft until we finalize its contents and confirm this in writing.
7.3 Conflict between finalized documents
Multiple copies and versions of finalized documents may exist in different media. In the case of any discrepancy, the signed hard copy version will prevail.
8 Confidential information (“Terms and Conditions”)
8.1 Confidential information
We will respect the confidential nature of any information (‘Confidential Information’) you or your advisers give us.
Subject to paragraph 15, we will not disclose any Confidential Information to anyone without your prior consent, except:
- where the law, rules, or a court order requires us to do so. We will only do this after we have informed you and (where possible and permitted) taken action, at your cost, to contest the disclosure;
- to anyone (including any of your other advisers) who may be able to assist us with the Matter and we believe it is appropriate for them to know the Confidential Information, taking into account your interests;
- to selected third parties such as suppliers of word processing, translation, waste disposal agencies, IT services, and other suppliers who assist us in legal, finance, administrative, and other roles, and who will or may have access to Confidential Information as part of their function.
8.3 Necessary disclosure
If we are required to disclose Confidential Information, such as in the situations above, we will take all reasonable steps to secure and ensure your Confidential Information is protected.
8.4 Other clients
We owe a similar duty of confidentiality to all of our other clients (‘Other Clients’) as we do to you. We will not disclose any information Other Clients give us to you, without their consent, even if the information is material to your Matter. You agree that we do not owe a duty of disclosure to you in relation to such information.
8.5 Other matters
There may be times when we act for Other Clients on matters where their interests differ from yours and your Confidential Information is material to the Other Clients’ matters. You agree our duty of confidentiality to you will be satisfied by putting in place appropriate safeguards, in line with applicable law or practice. You agree that you will not seek to prevent us from acting for Other Clients simply because we hold your Confidential Information.
8.6 Your duty of confidentiality
We may assume that you comply with all your confidentiality obligations to third parties regarding any information disclosed to us.
8.7 No instruction from you
If you contact us about a potential matter but decide not to proceed, you agree that we may act for Other Clients whose interests may differ from yours, if we protect your Confidential Information with the appropriate safeguards.
8.8 Sharing your Confidential Information
We may share your Confidential Information internally, including with any firm with which we have entered into a joint venture, alliance, or collaboration arrangement, for:
- checking conflicts of interest between matters; or
- determining generally whether to accept instructions from you or another client.
9 Conflicts of interests
9.1 Conflict of interests procedures
We have procedures designed to prevent us from acting for one client in a matter where there is, or there is a significant risk of, a conflict of interests with another client (‘Conflict’). If you are aware of a possible Conflict, please inform the partner responsible for the Matter immediately.
9.2 Unrelated Matters
We are a full-service law firm that represents many clients, nationally and internationally, over a wide range of industries and businesses and in a wide variety of matters. For this reason, we may represent Other Clients whose interests may differ from yours or any of your affiliates on matters that are not substantially related to your Matters (an ‘Unrelated Matter’).
9.3 No disqualification
If we represent you or any of your affiliates in a Matter this does not disqualify us from representing Other Clients in any Unrelated Matter. Us acting in Unrelated Matters does not breach any duty we owe you or your affiliates if we abide by the applicable laws.
9.4 Decision to act
If a conflict arises, we may decide to act for you, the Other Client, both or neither. We will decide this based on applicable laws, best practices, and your and the Other Client’s interests and wishes.
9.5 Your affiliates
You agree that each of your group companies shall be considered a separate entity for Conflict purposes.
9.6 Acting for multiple clients
In certain cases, we may have more than one client actually or potentially interested in the same subject matter. As well as transactions, or competing for the same asset. In such cases, we are free to act for more than one client in line with the relevant laws.
9.7 Fulfilling different roles
If the Matter does not proceed, we will protect your Confidential Information. We may take on other roles in relation to the Matter in accordance with the relevant rules of confidentiality.
10 Communications (“Terms and Conditions”)
10.1 Communicating with you
Unless you specify otherwise, we may communicate directly with your employees or your other advisers as we consider appropriate> And who we reasonably believe are involved in the Matter and can assist us with providing the Services to you.
10.2 Email communication
We will communicate with you and your advisers about the Matter by email unless you instruct us otherwise.
Email communications are not totally secure or error-free. We use filtering software to reduce spam and harmful viruses entering our systems. As there is a risk of filtering out legitimate correspondence, you should not assume that we receive every email. Please follow up on important communications by phone, post, or fax.
10.4 Liability for viruses
We are not liable if our filtering software or other virus or electronic protection does not function and your systems are infected by any email or other form of delivery of information (such as CD, DVD, memory stick, or via the internet) from us.
As far as the law allows, you agree that we may monitor electronic communications to ensure compliance with our legal and regulatory obligations and internal policies.
11 Proportionality (“Terms and Conditions”)
11.1 Proportionate liability
If we are liable to you for any loss (including interest and costs) in respect of any breach by us of our engagement or mandate, and another person or entity is also liable to you for the same loss, any compensation we have to pay you will be reduced in proportion to the responsibility of the other person for the same loss (as set out in paragraph 11.2).
11.2 Extent of responsibility
In determining the existence and extent of the responsibility of the other person or entity for the loss, no account will be taken of any agreement limiting the number of damages that person or entity is liable for, or any actual or potential shortfall in recovery of this amount (whether this is due to settling or limiting claims, or any other reason).
12 Limits to our liability
12.1 Limits to our liability
As far as the law allows, our aggregate (total) liability (of any nature) to you, or any third party, will not exceed the proceeds of any professional indemnity cover we actually receive or that our insurers pay to you. If there is no professional indemnity cover or no proceeds from such professional indemnity cover are received by us or paid to you, then our aggregate liability will be limited to three times the amount of our fees on the relevant Matter.
12.2 Liability of our individual employees
The aggregate liability (of any nature) to you, or any third party (as set out above) also applies to the liability of our individual partners, directors, employees, consultants, agents, or other persons acting for or controlled by us or for whom we are legally responsible.
12.3 Application as far as the law allows
Nothing in these Terms excludes or restricts any liability to the extent that it may not be excluded or restricted by applicable law, regulation or rules.
12.4 No individual liability
You agree that regarding the Services we provide you:
- your only contractual relationship related to any Matter or Services is with us (not our individual partners, directors, employees, consultants, or agents);
- as far as the law allows, no individual who is a partner, director, employee or agent of, or consultant to us accepts or assumes responsibility to you or to anyone else for Services we provided to you. This applies even if you granted them a direct power of attorney (for example, to represent you in litigation);
- you will not bring any claim in connection with the Services we provide you whether on the basis of contract, delict (including negligence), breach of statutory duty, or otherwise directly, against any of our individual partners or directors or against any of our employees, agents or consultants; and
- this will not limit or exclude our liability for the acts or omissions of our partners, directors, employees, agents or consultants.
- As far as the law allows, you indemnify us against any claim made against us by:
- any of your subsidiaries, associates, affiliates, or shareholders who may not have signed an engagement letter on these Terms or substantially similar terms and for whom we perform a mandate; or
- any third party to whom you disclose our advice unless we provide our written agreement for that third party to be able to rely on our advice to you.
14 Consumer Protection Act
14.1 If these Terms or any goods or services provided under these Terms are regulated by the Consumer Protection Act, all the provisions in these Terms must be treated as being qualified, to the extent necessary, to ensure compliance with the provisions of the Consumer Protection Act.
14.2 No provision in these Terms:
- does or intends to limit or exempt us from liability (including loss that resulted, directly or indirectly, from our gross negligence or deliberate default or that of any other partner, director, employee, or other person acting for or controlled by us), so far as the law does not allow this limitation or exemption; or
- requires you to assume risk or liability for this kind of loss referred to in paragraph 14.2 so far as the law does not allow such an assumption of risk or liability.
15 Anti-money laundering and sanctions
15.1 Legal requirements
Various laws and regulations on anti-money laundering and terrorism apply to us. When we ask you to give us relevant information to perform know your client (KYC) or customer due diligence (CDD) checks (for example, verification of identity or evidence of source of funds) you must give us this information promptly.
We may have to report any suspicious activity to the relevant authorities and obtain their prior consent before continuing to act. They may also prohibit us from informing you that we have made such a report (for example a tip-off).
We are also subject to various sanctions regimes which may be specific to certain jurisdictions, entities, or individuals. These sanctions may be arms embargoes, other trade restrictions, or financial restrictions. You must notify us as soon as possible if you become aware that a Matter may lead to a breach of any sanction.
15.4 Cessation of Matter or termination
Where we believe that our work on the Matter may involve a breach of anti-money laundering or terrorism law or regulation or any applicable sanction, we may cease working on the Matter immediately and terminate our mandate.
15.5 No liability
We will not be liable to you for any loss, damage, or delay you may suffer as a result of our:
- ceasing to act in accordance with paragraph 15.4 above; or
- fulfilling our statutory obligations (or in acting as we may reasonably believe we are required to do so), so long as we have acted in good faith.
16 Data protection and marketing
16.1 Data subjects
In providing Services to you, we may process personal information about you, your owners, officers or employees, sub-contractors, consultants, or other similar parties (each a ‘Data Subject’).
16.2 Processing personal information
Processing may include the transfer of information to our offices, third parties who process information for us (as referred to in paragraph 8.2 above), and law enforcement agencies. In processing personal information we agree to comply with all relevant data protection laws and regulations. We agree to ensure that third parties who process personal information for us, treat personal information as confidential; implement appropriate measures to ensure the protection of personal information, and that they agree to comply with all relevant data protection laws and regulations.
16.3 Contacting Data Subjects
Where we are permitted, we may contact a Data Subject (including by email) with marketing communications that we believe may be of interest, on our own or in conjunction with another firm with which we have entered into a joint venture, alliance, or collaboration arrangement.
16.4 Ceasing communication
Any Data Subject who does not wish to receive marketing information can at any time request that such communications cease by emailing us at firstname.lastname@example.org. Marketing communications will not be sent to a Data Subject who has requested not to receive marketing communication.
When you give personal information to us about any Data Subject to process for purposes of a Matter, you confirm that you have obtained the necessary consent from the Data Subject to share such information and for us to process, including transfer personal information. On certain occasions, in providing Services to you, you may provide us with personal information of parties such as your clients or customers as necessary for purposes of the Services, in such situations, you confirm that you have obtained their consent or have the authority to share their information with us and for us to process the information. You undertake to comply with all relevant data protection laws and regulations.
You agree that we may disclose that we are acting for you in our marketing and similar materials and, if in the public domain, the Matter on which we have acted or are acting for you. If the Matter is not in the public domain, we may only disclose the Matter for marketing purposes in generic form (and without reference to you), unless otherwise agreed between you and us.
17.1 Termination by you
You instruct us separately in relation to each Matter. You do not engage us on a permanent basis, but you may terminate our engagement in any, some, or all matters at any time.
17.2 Termination by us
We will stop acting on a Matter only with good reason in line with the relevant rules. We may do this for example if you do not pay an interim bill, you become insolvent, a Conflict arises or our continuing to work on the Matter may have an adverse effect on our reputation.
17.3 Automatic termination
Unless terminated earlier, our engagement on each Matter will terminate 30 days after dispatch of our final bill. As far as the law and relevant rules allow, we will consider that the Matter has not proceeded and our engagement will be terminated once:
- you inform us that the Matter will no longer proceed;
- our engagement is otherwise terminated in accordance with these Terms; or
- we have had no instructions from you in relation to the Matter for 60 days.
17.4 In each case, you remain responsible for our fees and expenses for work done up to the point of termination.
18 Document retention
18.1 Destroying documents
We may destroy our paper and (where possible) electronic files in line with our relevant policies for this, seven years or more after sending you our final bill on the Matter.
18.2 Retrieving documents
If you or your other advisers request us to retrieve any documents from storage, you will pay our reasonable costs, including time spent reading such documents, writing letters, or other work which we, acting reasonably, deem necessary, to comply with such a request.
We retain the copyright and all other relevant intellectual property rights in our work product. You will have a license to use and make copies of the documents we prepare for the purposes of the Matter but not (unless otherwise agreed) for other matters.
20 Queries and disputes
20.1 Queries and disputes
If you are not happy with any element of our Service (including our charges), you should contact us. We will be happy to discuss the matter with you.
20.2 Negotiation and arbitration
As far as the law allows, if we are unable to resolve any dispute with you by negotiation, we may refer the dispute to arbitration in accordance with the Commercial Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed by the Foundation. The arbitration will commence in English in Pretoria.
20.3 Jurisdiction of the Courts
Any dispute (including a dispute relating to any non-contractual obligation) will, subject to the arbitration procedure in paragraph 20.2, be subject to the exclusive jurisdiction of the High Court of South Africa (Gauteng Division, Pretoria).
21 General terms
If there is any inconsistency between these Terms and any other terms agreed between you and us, in writing. Then the written terms between you and us will prevail.
If any provision of these Terms is or becomes invalid, illegal, or unenforceable, the remainder shall survive unaffected.
21.3 Governing law
South African law will govern these Terms.
In these Terms the following words will bear the meanings given to them here:
- ‘Matter’ means each matter in which we provide you with Services;
- ‘Services’ means any advice, deliverable, product, information, or other obligation or service we perform or provide for a Matter;
- ‘you’ or ‘Client’ means the party who enters into an engagement with us for a Matter; and
- ‘we’, ‘our’, or ‘us’ means Road2Asia, the partnership formed under South African law. Our principal office is at 441 Ridgeview Road, Waterkloof Ridge, Pretoria, South Africa.
22.2 Singular and plural
Words in the singular include the plural and the other way around.
22.3 Different forms of the same word
Different grammatical forms of the same word have the same meaning. (For example, to pay, paying, and paid).
22.4 General words have no limit
Where we use general words to describe specific things that belong together. The general words can also mean other things.
22.5 References to ‘include’ and ‘including’
The words ‘including’ or ‘include’ does not refer to as a limitation to anything after the word.
22.6 Calculating days
Where any number of days is applicable, it includes the first day but excludes the last day.
22.7 Reference to laws
When there is a reference to a law or to a section of law. Then we mean that a law or section of that law is amended, or replaced from time to time.
22.8 References to persons
Any reference to a person includes natural persons and juristic persons and the other way around.