Standard Terms and Conditions

Our Relationship with You

1. We are Advance Corporate Advisors Proprietary Limited (“Advance Corporate Advisors”).

2. We will perform the Services using reasonable skill and care.

3. We will provide the Services to you as an independent contractor and not as your employee, agent, partner or joint venturer. Neither you nor we have any right, power or authority to bind the other.

4. We may, in our sole discretion and without consent, subcontract portions of the Services to other Advance entities (including affiliates and subsidiaries), who may deal with you directly. Nevertheless, we alone will be responsible to you for the Reports (as defined in Section 6), the performance of the Services, and our other obligations under the Letter of Acceptance and these General Terms and Conditions (this “Agreement”).

5. We will not assume any management responsibilities in connection with the Services. We will not be responsible for the use or implementation of the output of the Services.

Our Deliverables

6. Any information, advice, recommendations or other content of any reports, presentations, scorecards, tender responses or other communications we provide under this Agreement (“Reports”), other than to the best of your knowledge, all information provided by you or on your behalf (“Client Information”), are for your internal use only (consistent with the purpose of the particular Services).

7. You may not disclose a Report (or any portion or summary of a Report), or refer to us or to any other Advance entity (including affiliates and subsidiaries) in connection with the Services, except:

a. to the extent, and for the purposes, required by subpoena or similar legal process (of which you will promptly notify us in writing),to the extent, and for the purposes of, disclosure to present or prospective clients, or
b. to the extent, and for the purposes of, disclosure to present otherwise in marketing materials, that we have performed the Services for you, and you may use our name solely for that purpose, or
c. to other persons (including your affiliates) with our prior written consent (who have executed a letter in the form we prescribe), who may use it only as we have specified in our consent.

8. If you are permitted to disclose a Report (or a portion thereof), you shall not alter, edit or modify it from the form we provided.

9. You may incorporate into your internal documents any summaries, calculations or tables based on Client Information contained in a Report. If you then disclose such internal documents to anyone, you shall assume sole responsibility for their contents and you shall not refer to us or any other Advance entity (including affiliates and subsidiaries) in connection with them.

Your Responsibilities

10. You shall assign a qualified person to oversee the Services. You are responsible for all management decisions relating to the Services, the use or implementation of the output of the Services and for determining whether the Services are appropriate for your purposes.

11. You shall provide (or cause others to provide) to us, promptly, the information, resources and assistance (including access to records, systems, premises and people) that we reasonably require to perform the Services.

12. Client Information will be accurate and complete in all material respects. The provision of Client Information to us will not infringe any copyright or other third-party rights. If after providing the Client Information but prior to our Reports being issued, the Client Information has changed, the onus is on you to promptly notify us, and provide us with the updated Client Information.
13. We will rely on Client Information made available to us and, unless we expressly agree otherwise, will have no responsibility to evaluate or verify it.

14. You shall bear the sole responsibility to evaluate the accuracy, completeness and usefulness of the Services and other information provided by Advance Corporate Advisors. Advance Corporate Advisors does not warrant that our Report(s) and/or any documents provided by us in relation to the Services will be error free or that any defects will be corrected.

15. You shall be responsible for your personnel’s compliance with your obligations under this Agreement.

Intellectual Property Rights

16. We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that we own or license in performing the Services. Notwithstanding the delivery of any Reports, we retain all intellectual property rights in the Materials (including any improvements or knowledge developed while performing the Services), and in any working papers compiled in connection with the Services (but not Client Information reflected in them).

17. Upon payment for the Services, you may use any Materials included in the Reports, as well as the Reports themselves as permitted by this Agreement.

Confidentiality

18. Except as otherwise permitted by this Agreement, neither of us may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Either of us may, however, disclose such information to the extent that it:

a. is or becomes public other than through a breach of this Agreement,
b. is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information,
c. was known to the recipient at the time of disclosure or is thereafter created independently,

d. disclosed as necessary to enforce the recipient’s rights under this Agreement, or
e. must be disclosed under applicable law.

19. Either of us may use electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement.

20. Unless prohibited by applicable law, we may disclose Client Information to other Advance entities (including affiliates and subsidiaries) and Advance Corporate Advisors Persons to facilitate performance of the Services, to comply with regulatory requirements, to check conflicts, or for quality, risk management or financial accounting purposes.

Data Protection

21. You warrant that you have the authority to provide Client Information that can be linked to specific individuals (“Personal Data”) to us in connection with the performance of the services and that the Personal Data provided to us has been processed in accordance with applicable law.
Limitations

22. You (and any others for whom Services are provided) may not recover from us, in contract or delict, under statute or otherwise, any amount with respect to loss of profit, data or goodwill, or any other consequential, incidental, indirect or special damages in connection with claims arising out of this Agreement or otherwise relating to the Services, whether or not the likelihood of such loss or damage was contemplated.

23. You (and any others for whom Services are provided) may not recover from us, in contract or delict, under statute or

otherwise, aggregate damages in excess of the fees actually paid for the Services that directly caused the loss in connection with claims arising out of this Agreement or otherwise relating to the Services.

24. With the exception of liability for death or personal injury, or loss resulting from our fraud, or any other liability for which restriction or exclusion is prohibited by law, our liability for the aggregate of all claims arising out of or in connection with this engagement during any annual period in respect of breach of contract or breach of duty or fault or negligence or otherwise (collectively referred to herein as “fault”) shall be no more than that proportion of the loss or damage (including interest and costs) suffered by you, which is ascribed to us by a Court of competent jurisdiction or Arbitrator allocating a proportionate responsibility to us having regard to the contribution to the loss or damage in question by you or any other person based upon relative degrees of fault; it being a term of this engagement that the provisions of Section 1 of the Apportionment of Damages Act, 1956 will apply to all claims between us and “fault” and “loss or damage” as used herein shall respectively be deemed to fall within the meanings of “fault” and “damage” as contained in Section 1 of the Apportionment of Damages Act, 1956. For the purposes of assessing the contribution to the loss and damage in question of any other person pursuant to the preceding paragraph, it is agreed that no account shall be taken of any limit imposed or agreed on the amount of liability of such person by any agreement (including any settlement agreement) made before or after the loss and damage in question occurred.

25. You shall make any claim relating to the Services or otherwise under this Agreement no later than within one year after you become aware (or ought reasonably to have become aware) of the facts that give rise to the claim, and in any event, regardless of the knowledge, by no later than three years after the date of any

alleged breach of contract, delictual act or other act or omission giving rise to a cause of action. This expressly overrides any statutory provision that would otherwise apply.

26. The limitations in Sections 22 and 23 will not apply to losses or damages caused by our fraud or to the extent prohibited by applicable law.

27. You may not make a claim or bring proceedings relating to the Services or otherwise under this Agreement against any other Advance entity (including affiliates and subsidiaries) or our or its subcontractors, members, shareholders, directors, officers, partners, principals or employees (“Advance Corporate Advisors Persons”). You shall make any claim or bring proceedings only against us.

Indemnity

28. To the fullest extent permitted by applicable law you shall indemnify us, the other Advance entities (including affiliates and subsidiaries) and the Advance Corporate Advisors Persons against all claims by third parties (including your affiliates) and resulting liabilities, losses, damages, costs and expenses (including reasonable external and internal legal costs) arising out of the disclosure of any Report (other than Tax Advice), or a third party’s use of or reliance on any Report (including Tax Advice). You shall have no obligation hereunder to the extent that we have specifically authorised, in writing, the third party’s reliance on the Report.

Fees and Expenses Generally

29. You shall pay our professional fees and specific expenses in connection with the Services (as set out in the submitted proposal, if applicable). You shall also reimburse us for other reasonable expenses incurred in performing the

services including all travel costs at a reasonable rate, and other accepted reimbursable expenses. Our fees are exclusive of taxes or similar charges, as well as customs, duties or tariffs imposed in respect of the Services, all of which you shall pay (other than taxes imposed on our income generally).

30. We may charge additional professional fees if events beyond our control (including your acts or omissions) affect our ability to perform the Services as originally planned or if you ask us to perform additional tasks. These additional fees will be either in the form of our annual hourly rates, or we may produce a variation order for you to accept prior to concluding the additional work, which may be in the form of a set fee

31. In the event that our services provided exceed the span of calendar year either by design or through a project delay, on the anniversary of the contract, Advance is entitled to increase the quoted fee for the remainder of the project by 7% per annum.

32. If we are required by applicable law, legal process or government action to produce information or personnel as witnesses with respect to the Services or this Agreement, you shall reimburse us for any professional time and expenses (including reasonable external and internal legal costs) incurred to respond to the request, unless we are a party to the proceeding or the subject of the investigation. The reimbursement rate shall be equal to our standard current market rate at the date of such request.

33. Our invoices are payable upon presentation thereof. However, if payment is not effected within 30 days of the date of invoice, we shall be

entitled to charge interest in our sole discretion on any outstanding amount at an amount of 1% per month.

Force Majeure

34. Neither you nor we shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond your or our reasonable control

Term and Termination

35. This Agreement applies to all Services performed at any time (including before the date of this Agreement).

36. This Agreement shall terminate on the completion of the Services. Either of us may terminate it, or any particular Services, upon written notice to the other. In addition, we may terminate this Agreement, or any particular Services, immediately upon written notice to you if we reasonably determine that we can no longer provide the Services in accordance with applicable law.

37. You shall pay us for all work-in-progress, Services already performed, and expenses incurred by us up to and including the effective date of the termination of this Agreement. Payment is due on receipt of our invoice for these amounts.

38. Our respective confidentiality obligations under this Agreement shall continue for a period of three years following the termination of this Agreement. The other provisions of this Agreement that give either of us rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.

Governing Law and Dispute Resolution

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

40. Any dispute relating to this Agreement or the Services shall be subject to the exclusive jurisdiction of the South Gauteng High Court, Johannesburg, to Terms and Conditions, and (d) other annexes to the Letter of Acceptance.

which each of us agrees to submit for these purposes. The Parties may by agreement refer any dispute hereunder to arbitration in accordance with the Arbitration Act 42 of 1965.

Miscellaneous

41. Subject to clause 45, this Agreement constitutes the entire agreement between us as to the Services and the other matters it covers, and supersedes all prior agreements, understandings and representations with respect thereto, including any confidentiality agreements previously delivered.

42. Both of us may execute this Agreement (and modifications to it) by electronic means and each of us may sign a different copy of the same document. Both of us must agree in writing to modify this Agreement or the Letter of Acceptance hereunder.

43. You represent that the person signing this Agreement and the Letter of Acceptance hereunder on your behalf is expressly authorised to execute it and to bind you and any of your affiliates or others for whom Services are performed to its terms.

44. You agree that we and the other Advance entities (including affiliates and subsidiaries) may act for other clients, including your competitors.

45. Neither of us may assign any of our rights, obligations or claims under this Agreement.

46. If any provision of this Agreement (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions shall remain in full force and effect.

47. If there is any inconsistency between provisions in different parts of this Agreement, those parts shall have precedence as follows (unless expressly agreed otherwise): (a) the Confidentiality Agreement, (b) the Letter of Acceptance (c) these General

48. Advance Corporate Advisors and other Advance entities (including affiliates and subsidiaries) may use your name as reasonably necessary to perform the Services and in correspondence, including proposals, from Advance Corporate Advisors or other Advance entities (including affiliates and subsidiaries) to you. In addition, Advance Corporate Advisors or other Advance entities (including affiliates and subsidiaries) may disclose to present or prospective clients, or otherwise in marketing materials, that they have performed the Services for you, and may use your name solely for that purpose.