Terms and Conditions

HomeTerms and Conditions

Exactech Terms and Conditions

1.         Agency

1.1       Commencement

1.1.1    The mandate from the client to Exactech (Pty) Ltd (“Exactech”) commences the moment the client completed the initial contact document and returned it to Exactech via email.

1.2       Ratification

1.2.1    Upon the client’s completion of the Initial Contact Document and sending it to Exactech, the client thereby agrees to ratify all actions from Exactech before the completion of the Initial Contact Document regarding the mandate, and all whatsoever Exactech may lawfully do or cause to be done by virtue of this mandate and the terms and conditions relating to the mandate.

1.2.2    Should the agency have been terminated as per paragraph 1.3.1 below and becomes active again, as per paragraph 1.3.2, then in such event, the client upon acceptance of the quote ratify all actions of Exactech between the period the initial agency terminated and before the agency could officially be created, which actions must relate and are limited to the mandate only.

1.2.3    Should the client wish to change the mandate, but urgency of the circumstances do not permit, the client ratifies any actions of Exactech on the then previous mandate until the actual Amended Mandate Instruction has been issued.

1.2.4    The ratifications issued in this paragraph include approval of any expenses and fees raised for such actions, provided that it was raised during the course of the execution of the mandate.

1.3       Duration

1.3.1    The agency will continue in existence until the mandate is fully executed by Exactech and all monies have been paid, whereafter the agency will terminate.

1.3.2    Should the client require testimonies or any other assistance after the mandate had been executed and terminated as stated above in paragraph 1.3.2, then in such event, the agency will be created again, the moment the client accepted the quote for the follow up work.

1.4       Agency is binding

1.4.1    The agency created is binding on:

1.4.1.1             any assigns, agents, appointees or representatives; and

1.4.1.2             all successors in title for the client and Exactech.

1.5       Representative capacity

1.5.1    Should it be required of Exactech to attend to the mandate as a third party investigator, then in such event, all the terms and conditions hereof will be applicable except for the following:

1.5.1.1             To transact on behalf of the client in sending and receiving information;

1.5.2    Should the client require Exactech to act in its name and stead, then in such event, all the terms and conditions hereof will be applicable.

1.5.2.1             Specifically, to be able to transact on behalf of the client in sending and receiving information.

1.5.2.1.1          Exactech undertakes to always disclose in such communications, the fact that they act on behalf of the client.

1.6       Agency is transferable

1.6.1    Exactech may appoint assigns, subcontractors or representatives to perform certain functions.

1.6.2    These appointments are limited to the following:

1.6.2.1             Such appointees binding themselves to any confidentiality undertakings that the client may require, which Exactech undertakes to issue to such appointees to bind themselves.

1.6.3    Such appointments will report directly to Exactech.

1.7       Termination of agency

1.7.1    If the mandate is terminated, so the agency terminated.

1.7.2    Should the client wish to terminate the agency:

1.7.2.1             The client will phone Exactech and confirm the termination;

1.7.2.2             The telephone call is to be followed by an email from the client confirming the termination on the same day as the telephone call.

1.7.3    The client may terminate the agency with immediate effect.

1.7.4    The following are consequences of terminating the agency:

1.7.4.1             Exactech, including its appointees, will immediately seize all work;

1.7.4.2             A final statement of account will be rendered to the point of termination for payment upon presentation of that statement;

1.7.4.3             Upon receipt of payment of the final statement, all information, data and physical documentation will be released into the possession of the client.  It will not be necessary for Exactech to draft a report up and until that point.

1.7.4.3.1          Exactech is entitled to retain copies of all records and transactions.

1.7.4.4             Exactech will be entitled to charge a fee as a reasonable cancellation penalty calculated from taking the following factors into consideration:

1.7.4.4.1          A 25% penalty fee on the fees as per the quote, but not yet earned; and

1.7.4.4.2          Any discounts or indulgences on fees and expenses, will lapse and the full portion of the fee and expenses will be due and payable.

1.8       Restrictions on agency

1.8.1    Exactech will not act outside the scope of the agency.

1.9       Powers

1.9.1    Appointment of Exactech as an independent third party investigator:

1.9.1.1             To do all things necessary to achieve the goals as set out in the mandate.

1.9.2    Appointment of  Exactech to act in the client’s name and stead:

1.9.2.1             To act with full power and authority for the client, and in the name of the client, and on behalf of the client, and accordingly, to do or execute all or any acts and things as may be required to execute the mandate as if the client could personally attend to it.

2.         Mandate

2.1       Details about the mandate

2.1.1    The mandate is as recorded in the Initial Contact Document in conjunction with the formalisation thereof in the follow up quote.

2.2       Authority to issue this mandate

2.2.1    The client confirms that it has the necessary authority to instruct Exactech to attend to this mandate.

2.3       Amendments to the mandate

2.3.1    Amendments to the mandate must be done in writing as follows:

2.3.1.1             By completing an Amended Mandate Instruction and sending it via email to Exactech; or

2.3.1.2             If urgency of the circumstances do not permit, that it be done by virtue of an email from the client.

2.3.1.2.1          Exactech will then forward the Amended Quote to the client as soon as reasonably possible to confirm it.

2.3.2    Any amendments to the mandate may have cost and fee implications.

2.4       Sole Mandate

2.4.1    The client confirms that this mandate is a sole mandate and no other entity is appointed to attend to the same or similar mandate.

2.5       Execution of mandate

2.5.1    In order to execute the mandate effectively:

2.5.1.1             The client has arranged access for Exactech and its representatives to gain access to all the areas and premises as instructed by the client.

2.5.1.2             The client will ensure that all relevant information, data and contact details of relevant parties be forwarded to Exactech, to allow them to immediately attend to the execution of the mandate within the time projections.

3.         Reporting

3.1       Exactech will provide written reports every second calendar week to client.

3.2       The contents of the report will give the progress on the execution of the mandate and will deliver information on the goals as captured in the quote.

3.3       Should the client require additional information on the report, then in such event, Exactech will ensure that such information is available in the follow up report.  Should there be cost implications or cause a change in mandate to be able to provide that information, the change in mandate proceedings will be followed and an amended quote will be issued.

3.4       Reporting will be done to the appointed contacted person of the client.

3.5       Representations on any person, entity or circumstance made in the report will be based on reasonable grounds, which are first-hand knowledge acquired through the execution of the mandate.

4.         Payment / Remuneration

4.1       No deposit is payable.

4.2       Payment of the invoice is to be made upon presentation of the report with the invoice.

4.2.1    Failure to make such a payment upon presentation will result in Exactech and its appointees immediately seizing all work until payment is received.

4.3       Fees and expenses are due and payable whether the outcome is supported by the mandate or not.  For clarity is meant, that where the objective was to find evidence against one person, but the outcome was evidence against another person.  Fees are payable for the work and not for the successful outcome of the mandate.

5.         Accounting / Budget

5.1       The initial accepted quote will determine the budget.

5.2       Exactech will follow the these accounting principles:

5.2.1    Invoices will comply with relevant tax legislation at the time;

5.2.2    Exactech will retain and submit to the client all vouchers confirming expenses;

5.3       Deviations to the budget (and by implication the quote) will be addressed as follows:

5.3.1    Exactech will first advise the client of the proposed deviation and motivate it to the client, as to the reason for the expense and show that it must be incurred, as it falls part of the normal course of the execution of the mandate.  Exactech will also advise as to the reason, why this expense was not originally quoted and included in the budget.

5.3.2    Upon such advices, the client will approve the expense and pay it, upon presentation in the relevant invoice;

5.3.2.1             Should the client decline this expense, Exactech will advise the client of the consequences and any effect that it may have on the execution of its duties in terms of the mandate.  This may result in a change to the mandate.

5.3.2.1.1          The client will then have 24 hours to review the consequences of this expense.

5.3.2.1.2          Should the client not approve the expense within 24 hours, then in such event, Exactech will deem that the expense is not approved and will then proceed to act, without incurring the expense.

5.3.2.1.3          If the expense is then approved after review, then in such event, it will be added to the next invoice.

5.4       In the case or urgent or emergency expenses, where Exactech does not have sufficient time to discuss deviations to the budget with the client, the following process will be followed:

5.4.1    Should Exactech believe in its sole discretion that by incurring this expense, it will greatly assist in achieving the goals of the mandate, Exactech will proceed to incur the expense.

5.4.2    As soon as reasonably possible after incurring the expense, proof of this expense and a motivation for the expense as well as a reason why prior approval could not be confirmed must be forwarded to the client for its notice.

5.4.3    Should this expense or fee be in the normal course of Exactech’s duties, the expense will be accepted by the client, without actual confirmation from the client.

5.4.3.1             Should the client dispute this expense or fee, the procedure as set out below will be followed:

5.4.3.1.1          The client will reply in writing the reason why it is disputed;

5.4.3.1.2          The parties will then agree to a dispute resolution procedure that will best be able to adjudicate the fairness of the fee and/or expense.  This means that the parties may elect not to follow the procedures as recorded in paragraph 6.  The parties will then agree to be bound to the outcome of the dispute resolutions process.

5.4.3.1.3          Both parties agree, that while the fee or expense is being considered, Exactech will continue to execute its duties and the client will continue to pay all the other fees and expenses reflecting on the invoices, that may be delivered.

5.4.4    The expense will then be loaded on to the next invoice.

6.         Disputes

6.1       Should a dispute arise about any issue relating to the mandate and/or the agency, the parties must appoint a mediator with the necessary experience to mediate the dispute.

6.2       The process will work as follows:

6.2.1    The aggrieved party shall submit its dispute in an email to the other party requesting it to be resolved within 72 hours from the time the email was sent.

6.2.2    Should the parties be unable to resolve the dispute within this time period, then the dispute is confirmed and must be referred to a mediator.

6.2.3    The parties must agree on the appointment of a mediator with the necessary experience to make a decision as well as address the issue of his costs.

6.2.4    Should the parties be unable to agree, the parties are to approach the Law Society of the Northern Provinces and ask them to appoint an attorney to investigate the dispute and then refer the parties to an appropriate mediator.  The parties will share the fee of the appointee of the Law Society to attend to the investigation of the dispute, unless the mediator awards otherwise.

6.2.5    Should the parties not be satisfied with the outcome of the mediation alternatively, the one party refuses to co-operate with the mediator, then either party may proceed with breach of contract terms.

7.         Attending to information

7.1       Information received from client

7.1.1    Upon the acceptance of the quote, the client will immediately or as soon as reasonably possible proceed to forward the relevant information for the mandate to Exactech.

7.1.2    Exactech will treat this information as confidential information as per paragraph 8 below.

7.1.3    Exactech will, having due regard to generally accepted information security practices and procedures, take appropriate, reasonable technical and organisational measures to prevent loss or damage to or unauthorised destruction of information; and unlawful access to or processing of information.

7.1.4    Exactech will use the information only for the purposes of executing the mandate.

7.1.5    The information will be returned to the client once the agency is terminated; except for the copies of the information which Exactech must retain for legal purposes.

7.1.5.1             Such information will be retained and stored for a period of 5 years from the date the agency terminated.

7.1.5.2             The information will be stored in secure facilities limiting access of unauthorised third parties.

7.2       Information gathered through the execution of the mandate

7.2.1    Information will be gathered through consultations, interviews, collecting and perusing documents, investigations and through the unique manner of ways Exactech have available to them.

7.2.2    The information gathered in this way, as per paragraph 7.2.1 will only be used for the purposes of executing the mandate.

7.2.3    Such information will be stored in safe facilities prohibiting unauthorised third parties from accessing it, for a period of five years from the date the agency is terminated.

7.2.4    The information gathered will be used as follows:

7.2.4.1             For interpretation within the context of the information received from the client;

7.2.4.2             To make deductions and inferences;

7.2.4.3             To proceed to approach other different people, circumstances, or data, not originally thought of;

7.2.4.4             Will be compiled within a report to the client.

7.2.5    All information gathered through the execution of the mandate will be returned to the client upon the termination of the agency and payment of the final invoice from Exactech, except for such copies which Exactech must retain as may be required by law.

7.2.5.1             Gathered information will be stored with the information received from the client.

7.3       Information in the report

7.3.1    Information in the report, will be presented as gathered by Exactech, with inferences drawn.

7.3.2    Exactech will store the reports with the information received from the client and retain for a period of 5 years from when the agency is terminated.

 

8.         Confidentiality

8.1       For the purposes of this clause, “Confidential Information” includes, but is not limited to:

8.1.1    Any and all information relating to the mandate.  The format of the information may be electronic, in writing, hard copies, or in any manner or format which can be identified by a third outside party.

8.1.1.1             This Confidential Information includes:

8.1.1.1.1          Information received from the client;

8.1.1.1.2          Information gathered and acquired by Exactech while executing the mandate; and

8.1.1.1.3          Information recorded in a report.

8.2       Furthermore, for the purposes of this clause only, “Commencement Date” means the date the completed Initial Contact Document was received by Exactech.

8.3       Ownership to the Confidential Information

8.3.1    Ownership of the confidential information submitted by the client to Exactech will remain with the client and ownership thereof are never transferred.

8.3.2    All rights, title of ownership and interest will be in the information gathered by Exactech  and will vest in Exactech through the execution of the mandate.

8.3.3    All rights, title of ownership and interest will be in the report submitted to the client, excluding information received from the client.

8.3.4    Transfer of ownership in and to the information as recorded in paragraphs 8.3.2 and 8.3.3 will transfer to the client, upon payment of the final invoice and the subsequent termination of the agency.

8.3.4.1             The parties agree, that Exactech will continue to have the right to store the information at hand and use it as and when the client may require without paying licensing or royalty fees.

8.4       Period of confidentiality

8.4.1    The restrictions of this confidentiality clause will remain in force indefinitely from the Commencement Date.

8.5       The parties’ use of the confidential information

8.5.1    Restrictions on the use of the confidential information:

8.5.1.1             Each party agrees to keep any Confidential Information which the one party gives access to the other party, confidential, whether it obtained access to it before or after the Commencement Date. The receiving party will not reveal or make known or allow revealing or making known of the Confidential Information otherwise than is allowed in terms of this Agreement.

8.5.1.2             Each party must take all steps that may reasonably be necessary to prevent the Confidential Information falling into the hands of an unauthorised third party.  This includes protecting it and storing it safely from unauthorised third parties.

8.5.1.3             Each party must not use any of the Confidential Information in the development, manufacture, marketing or sale of any goods / services without the written knowledge of the other party.

8.5.1.4             Each party must not use or disclose or attempt to use or disclose the Confidential Information for any purpose other than performing its contractual obligations in terms of the mandate.

8.5.1.5             Each party must not use or attempt to use the Confidential Information in any way which will cause or be likely to cause injury or loss to the other party.  Unless irregularities or crimes are suspected, which must be reported.

8.5.1.6             All agents, appointees or representatives of any party are bound to this agreement and it is the duty of each party to convey this information to them and to emphasise the importance of compliance with this Agreement and the consequences of failure to comply herewith.

8.5.1.7             Any Confidential Information which comes into the possession of the other party or one of its agents, appointees or representatives, or which is generated by such a party, or one of its agents, appointees or representatives, after the Commencement Date:

8.5.1.7.1           will be regarded as forming part of the

Confidential Information of that party;

8.5.1.7.2          will be regarded as the property of that party;

8.5.1.7.3          may not be copied, reproduced, published or circulated by the other party, unless:

8.5.1.7.3.1       It is in the normal course of the execution of the mandate; or

8.5.1.7.3.2       the party gives its written consent thereto.

8.5.2    Exceptions on the restrictions of use

8.5.2.1             The above restrictions on each party will not apply to information which:

8.5.2.1             is lawfully in the public domain at the Commencement Date;

8.5.2.2             lawfully comes into the public domain after the Commencement Date otherwise than as a result of the conduct of a party or one of its agents, appointees or representatives;

8.5.2.3             A party is compelled to disclose in terms of a court order;

8.5.2.4             is approved for release upon the written confirmation of the other party; or

8.5.2.5             is required by law to be disclosed by the party.

9.         Warranties

9.1  The client issues the following warranties:

9.1.1    That there are no other intermediaries involved in issuing the mandate and that the client as per the Initial Contact Document, is the entity that directly requires the services of Exactech.

9.1.1     That the mandate is sufficient to achieve the goals that the client may have as per internal or otherwise external requirements and demands from third parties.

9.1.2     The client has the necessary authority to issue this mandate.

9.1.3     Client will do all things necessary to allow Exactech to execute the mandate.

9.1.4     That the information provided by the client to Exactech are both true and correct.

9.1.5     That the client obtained or has the necessary authority to issue the information to Exactech.

9.1.6     That the information in the report will be disclosed only to the relevant parties with a direct interest to the report, and who deems themselves bound the client’s confidentiality agreements.

9.2    Exactech issues the following warranties:

9.2.1     That it will perform its duties in a professional manner and not to bring disrepute to the client, unless the client is implicated in the investigations;

9.2.2     Exactech will always perform its duties legally and compliant will all legislation;

9.2.3     That it has the ability and expertise to execute the mandate;

9.2.4     Exactech will in its execution of the mandate act loyally and faithfully to the client and obey any instructions from the client, provided that the instructions are reasonable and within the scope of the mandate and agency.

9.2.5     That the information recorded in the reports are bona fide information and as recorded in the normal course of the execution of the mandate.

9.2.6     Undertake to its best to stay within the budget.

9.2.7     Exactech will not engage and talk settlement with other parties regarding the execution of the mandate, unless written consent from the client is received.

9.2.8     That all information received during the execution of the mandate will be forwarded to the client.

9.2.9     That it will retain and have all information received from the client, in safe storage facilities, be it physical information or electronic data.  The information will be protected from the intervention of unauthorised third parties.

9.2.10   That it will do everything within its means to protect the information received from the client from unauthorised third parties.

9.2.11   That it will not distort the information received from client and make any misrepresentation with the information received from the client.

9.2.12   That it will not make available the information in its possession, after the agency terminated, for any purpose, other as may be required by the client, or as per circumstances as stated in paragraph 1.3.2;

9.2.13   That it will use the information gathered while executing the mandate, only for the purpose of achieving the goals of the mandate.

9.2.14   Information gathered through the execution of the mandate will only be disclosed to the appointed contact person of the client in the form of a report and a verbal consultation.

9.2.15   That information gathered through the execution of the mandate will be stored in secure facilities restricting access of unauthorised third parties.

9.2.16   That information gathered and recorded in the report, will not adjusted nor would it be misrepresented.

9.2.17   Will ensure that all appointees by Exactech, will be bound to the confidentiality undertakings as recorded herein.

 

10.       Indemnities

The client indemnifies and holds Exactech harmless against any claims of any nature from any party arising out of the fact:

10.1       That the client did not have the necessary authority to issue the mandate.

10.2       That Exactech could not gain access to the appointed areas and /or premises and as a result caused delays in executing the mandate.

10.3     The client delayed in issuing any information relevant to the execution of the mandate, which caused delays.

10.4       The client terminated the mandate of Exactech, and as a result all work are stopped immediately, even if not completed.

10.5       The client did not achieve its goals, internal or externally, upon Exactech’s execution of the mandate.

10.6       Exactech did not execute the mandate within the time frame quoted and agreed upon initially, as a result of situations outside the control of Exactech.

10.7       If the authority to act is issued too late to Exactech for it to be able to effectively achieve the goals of the mandate.

10.8       The client failed to pay the invoice upon presentation and as a result all work from Exactech and its appointees seized.

10.9       From any prosecution as a result of the client’s failure to comply with the legislation.

10.10    A third party is claiming a violation of its privacy as a result of Exactech executing the mandate.

10.11    A third party is claiming compensation claiming that Exactech caused it harm in  some way or the other, while Exactech was executing the mandate.

10.12    Should it be later found that the representations in the reports were not correct.

10.13    Because it is found that the client did not have the necessary authority or consents to issue the information to Exactech.

10.14    From any claims of subjects of the mandate claiming invasion of privacy.

10.15    Should the report be disclosed (intentionally or by accident) to any party who is not authorised to read it.

11.       Force Majeure

11.1 Exactech shall not be liable for non-performance under this Agreement to the extent to which the non-performance is caused by events or conditions beyond its control, provided that Exactech makes all reasonable efforts to perform.

11.2 It is expressly recorded that for purposes of this clause the following shall be considered circumstances beyond the control of Exactech and the force majeure provisions shall apply:-

11.2.1    Delay by the client to provide Exactech with information or access to information; 11.2.2 the non-performance, inability to perform or delay in performance by any of Exactech’s or the client’s service providers relating to the provisioning of equipment, services and/or facilities to Exactech that affects Exactech’s ability to perform, including but not limited to electricity supply, internet connection and telephone connection;

11.2.3   Acts or omissions of any government, government agency, provincial or local authority or similar authority, any laws or regulations having the force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy, illegal strikes, interruption of transport, lockouts, flood, storm or fire.

 

12.       Severability

Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.

 

13.       Whole Agreement

The agreement between Exactech and the client is recorded in the Initial Contact Document, the quote and these terms and conditions on the website.  Also, any email or correspondence effecting the agency or mandate, form part of this agreement.

Neither party will have any right or remedy arising from any undertaking, warranty or representation not included in the mentioned documentation, unless these representations were ratified as per paragraph 1.2.

14.       Variation

The agreement between the parties may only be amended by written communications.

15.       Relaxation of Terms

No relaxation of the terms of this agreement and no indulgence which one party may grant to the other, will in any way operate as an estoppel against the former party, or be deemed to be a waiver of his rights, or in any other way limit, alter, or prejudice those rights.

16.       Addresses for Service

16.1     The parties to this agreement choose the addresses as mentioned in the Initial Contact Document to be the addresses used for any notice or legal process to be served on either party for the purposes of this agreement.

16.2     A notice which is sent by prepaid post in a correctly addressed envelope to the postal address specified in this agreement will be deemed to have been received (unless the contrary is proved by the addressee), within 10 days from date it was posted.  A notice which is delivered by hand to a responsible person during ordinary business hours at the above physical address, will be deemed to have been received (unless the contrary is proved by the addressee) on the day of delivery.

16.3     A fax or email sent to the fax number or email address specified in this agreement will be deemed (unless the contrary is proved by the addressee), to have been received on the first business day after the transmission.

16.4     A party shall be entitled to amend its addresses by giving 7 days written notice to that effect to the other party.

17.       Breach

17.1     In the event of either party being in breach of any of the terms of this agreement and failing to remedy such breach within a period of 10 working days after receipt by it of a written notice requiring such breach to be remedied, the party aggrieved thereby shall be entitled, without prejudice to any other rights which it may have in terms of this agreement or at law, to:

a)            claim specific performance of the terms of this agreement as well as such damages which it may have suffered;

b)            cancel this agreement and claim and recover damages;

c)            keep this agreement in force and recover such damages as it may have suffered as a result of such breach.

17.2     Should it be required by the parties to enforce their rights through legal proceedings, the parties will be entitled to recover attorney – own client – fees and expenses.