Michalsons is a firm of attorneys with a global view based in South Africa.
Instructions and scope of engagement
These terms of service apply to any instruction you give us as our client. We may add to or change these terms in a written estimate, quote, proposal, engagement letter or invoice, even if it does not mention these terms. Any change must be in writing and signed by us or be posted on our website to be effective. You accept the latest version of these terms of service by instructing us.
Companies and other Entities
If you are a company, partnership, trust, association or other legal entity, we may take instructions from any officer, owner or senior manager unless you write to tell us who to take instructions from.
Our fees and expenses
We will charge you fees for the solutions we provide.
- Fee estimates. Any estimate or quote we give for the likely cost of certain work only becomes an agreement to do the work at that cost when you accept the estimate (or part of it) in writing. If we do work outside the scope of an estimate we may charge extra fees at our standard hourly rates.
- Fixed fees. We may agree a fixed fee for certain services based on all relevant information and key people being available to us without unreasonable delay.
- Extra fees. We may charge extra fees if the work becomes more complex, time consuming or urgent or there are other delays or problems beyond our control that we could not reasonably have expected.
- Hourly rates. Our standard hourly rates are reviewed at least once a year. We record time in minimum units of 6 minutes each.
- Expenses. Our fees include normal expenses like telephone, bandwidth, fax, copying, local travel, stationery, printing and compulsory file storage. They exclude extraordinary fees like Court fees, costs of counsel or other experts, and search fees (such as patent, trademark and company searches). We charge for standard hotel accommodation, meals, car hire, economy airfares and other necessary travel costs when we travel non-locally at your specific request. We will get your approval before incurring any unusual expenses.
- Drafts. Unless we agree otherwise with you, we will provide you with up to two drafts of the applicable deliverables under our fixed fees. You must respond to our drafts within 30 days of delivery, so that we can best apply our minds to your work. We may charge extra fees where you require three or more drafts, or where you have responded after 30 days. If we do, these will be at our standard hourly rates.
- VAT. Our rates exclude Value Added Tax.
Invoicing and payment
We will send all invoices electronically after we have added value to you. In the case of deliverables, this will be when we send you the first draft. Otherwise monthly for ongoing work (unless we decide to send them more or less often because of the amounts or the nature of ongoing work). Our invoices are due for payment within seven days of presentation. We may charge interest at 2% above prime compounded monthly in arrears on invoices that are unpaid for more than 30 days. Please pay directly into our bank account shown on each invoice. We may agree otherwise for specific matters.
Giving information to us
You must give us with complete and accurate information on time where we have asked for it. We are not responsible for the consequences of any delay or your failure to do this or carry out any other obligation, and we may charge extra fees as a result.
Standard of service
We will provide our services with reasonable skill and care and without undue delay according to the professional standards expected of us. Our advice will reflect the law as it applies in South Africa at the time. If you request brief or urgent advice, you will not necessarily receive all the information you would have received otherwise.
The law can be interpreted in many different ways. Therefore we are only able to give you our opinion on how the law will be interpreted based on certain facts. We cannot guarantee that our opinion will always be confirmed as correct. But we do undertake to act according to the professional standard expected of us in giving the opinion.
Reliance on advice
Our advice is provided for your sole use and only you may rely on it. Any advice is based on the information you give us and assumes we have all relevant information. We are not liable for any damages suffered because you fail to inform us fully or accurately. Our advice is provided in context based on your facts and circumstances. You are responsible for all management decisions taken in response to our services.
We retain all copyright and other intellectual property rights in all know-how, working materials, document and other work we create in providing services to you. We grant you a non-exclusive, non-transferable licence to use these works solely for the purpose for which you instructed us in exchange for you paying our fee. We may retain and use any advice or opinion obtained while providing the services, subject to removing information that could identify you.
Following the events of September 11, 2001, the Financial Intelligence Centre Act (FICA) compels us to compile profiles of our clients. So we may have to ask you to provide copies of certain documents such as passports and proof of residence. Despite this, we are obliged and entitled to keep the affairs of our clients confidential unless we know or reasonably suspect that our client is involved in money laundering. In this case, we may be prohibited from informing you that we have been legally compelled to make a disclosure under FICA.
We normally correspond with you by email unless you request us to use a different method. We take reasonable steps to ensure the integrity of our communications, but do not encrypt our electronic communications and cannot guarantee their security and confidentiality. We use anti-virus software but cannot guarantee that all communications are free of harmful code. If you are concerned about the integrity of electronic communications or wish to protect any documents we send, please discuss this with us and we will make appropriate arrangements.
You agree that we can refer to the fact that we rendered services to you and describe the general nature of the services in our promotional material.
Limitation of liability
Our liability to you in respect of any loss or damage suffered by you arising from the services (whether under contract, delict, tort, strict liability or otherwise, and whether the services have ended or not):
- excludes responsibility for any consequential, exemplary, indirect, incidental, punitive, pure economic or special loss or damage of any kind and however caused, and
- is limited to the total amount of the fees paid by you in connection with the services rendered in any particular instruction in respect of direct losses only.
If any third party claims against us for any loss or damage that follows from any of our services to you, whatever the cause, you indemnify us against that claim unless we accept or it is finally determined that the loss or damage was caused by fraud or deliberate misconduct by us or any of our employees or agents.
Ending our mandate
If you want us to stop acting for you, you may write to us to end our mandate at any time. We may stop acting for you on reasonable notice if we have good reason to do so (for example if we become aware of a conflict of interest or you do not pay an invoice from us). We will invoice you for our fees and expenses up to the end of our mandate.
Any dispute related to these terms or the services must first be referred for confidential without-prejudice mediation by the Africa Commercial Dispute Settlement Centre (ACDSC) and its dispute resolution partners. A senior decision-maker from each party must personally take part in the mediation in good faith. If the dispute cannot be settled, it must be referred to the ACDSC for final and binding arbitration. Either procedure must take place in Cape Town according to ACDSC’s standard terms, procedures and rules. The parties must share ACDSC’s costs equally. Despite this mediation and arbitration clause, neither party is prevented from approaching any South African court with jurisdiction for interim relief in appropriate circumstances.
South African law governs these terms and services.
Time limit for claims
Any claim that cannot be resolved by negotiation and mediation must be formally made by arbitration proceedings within two years of the claimant becoming aware (or being in a position to become aware) of facts that give rise to the claim. In any event, this cannot be later than three years after any alleged breach of contract, delict or other act or omission giving rise to a cause of action. This overrides any statutory provision that would otherwise apply.
We may always change these terms of service. If this affects your rights or obligations we will place a prominent notice on this website or send you an email. If you do not agree with any change you may not instruct us again or use this website. If you instruct us or to use this website after notice of a change, the new terms apply to you.
Last updated: 21 May 2018