RETAINER AGREEMENT
1. ATTORNEY-CLIENT RELATIONSHIP
1.1 This agreement for the retention of our services as your Attorneys commences on the date of signature hereto by us in acceptance of your offer for us to act for you and will terminate forthwith upon either of us giving written notice of termination to the other, whereupon you shall immediately settle all our outstanding fees and disbursements in all matters that we have acted for you, unless we agree to the contrary in writing.
1.2 Our relationship with you is contractual in nature and in addition to the express terms recorded herein, shall also be subject to the rules of our profession, treated in the strictest of confidence and where applicable shall be subject to Attorney-Client privilege.
1.3 No individual person from our firm including without limitation any director, shareholder or employee, shall derive a direct Attorney-Client or other contractual relationship with you.
1.4 No promises, warranties or the like shall ever be given by us or be binding on us regarding the outcome of your matter/s.
2. OUR FEES
2.1 Unless agreed to the contrary by us in writing, our remuneration is quantified solely on the actual time spent by each member of our firm in their various attendances on your matter/s, including without limitation engaging in written or oral correspondence, drafting of pleadings, affidavits or other documents, Court appearances, meetings, perusal of documents, travel and conducting of legal research, at our agreed hourly rates as reflected in the attached Schedule of Fees hereto and where multiple members of our firm are engaged in your matter/s, you are liable for the payment of each of their fees at the rates applicable to them.
2.2 Our agreed rates shall automatically and without notice increase annually on the 15th day of January of each year commencing at a rate equivalent to the rate of inflation as published in the Consumer Price Index on the Statistics South Africa website, or as published by the South African Reserve Bank.
2.3 You shall pay our fees and charges free from demand, deduction and/or set-off forthwith upon being furnished with our fee notes from time to time.
2.4 You agree that if you dispute any of our charges, you shall immediately upon receipt of our fee note notify us in writing of the details of your dispute and meet with us in the succeeding 1005 (TENFIVE) business days to resolve such dispute/s, and failing you meeting with us or resolving such dispute/s at such meeting the giving of such written notice and subsequent meeting or resolution of any dispute/s listed by you, you agree to refer our disputed charge/s for taxation or assessment, as the case may be, in the immediately succeeding 05 (FIVE)10 business days.
2.5 You further agree that should you not follow the aforementioned procedure, you hereby expressly waive whatever rights you may have had to insist on having our fees taxed or assessed and we shall thereafter be entitled to institute legal proceedings against you for the recovery of our fees as quantified in our fee note/s in which proceedings we shall be entitled to prima facie prove the quantum of our fees claim by a written certificate of balance, signed by any of our directors whose authority, appointment and position need not be proved..
2.6 If you elect to dispute the contents of the aforementioned written certificate of balance you agree to carry the onus of disproving the its correctness of its contents.
2.7 Where we institute legal proceedings for the recovery of our fees, we shall be entitled to claim the costs of those legal fees proceedings on the Attorney-Own Client scale hereby agreed.
2.8 You shall pay such retainers as we may from time to time request as forward cover for our fees and disbursements and we are hereby authorised to utilise such retainers in settlement of our fees and disbursements as and when they are incurred and we retain the right to withhold the rendering of legal services until any requested retainer is paid, without being liable to you for any damages incurred as a result of us withholding such services for that or any other reason/s.
2.9 You hereby irrevocably cede outright to us to us as a first security cession for any claims we may have against you, all funds paid to us as retainers, cost orders obtained in your favour in any litigation, any monies recovered on your behalf or otherwise held or received by us under any mandate whatsoever, all of which are to be utilised in settlement of any claim/s that we may have against you arising from any cause whatsoever including any reversionary rights that you may hold until your aggregate indebtedness to us from any cause has been discharged.
2.10 Where you fail to pay us any amount on the due date for payment, we shall suffer financial prejudice and damages that you hereby agree to compensate us for by paying damages in an amount equivalent to 02% per month on the unpaid amount.
2.11 In urgent legal proceedings and whenever legal proceedings services are rendered to you after 17h00, on weekends, public holidays or in or from foreign jurisdictions, then we shall be entitled in our sole and unfettered discretion to levy a 20% surcharge on our fees.
2.12 All time spent by us on travelling shall be billed at 75% of the applicable hourly rate. All air travel shall be undertaken at business class or equivalent tiers and all out-of-town accommodation shall be in four- or five-star hotels as determined by us in our sole and unfettered discretion.
2.13 Where two or more parties are liable to us for payment of our fees, their liability shall be joint and several.
2.14 You hereby provide us with your written consent to perform such Credit Checks or extended Credit Checks on you as we may require from time to time.
3. BILLING ARRANGEMENTS
3.1 We undertake to regularly provide you with our fee notes, at least monthly and our fee notes shall as far as possible be detailed and itemiszed.
3.2 If we, for any reason whatsoever, fail to account to you regularly then this will not mean we are disentitled to our fees.
3.3 All payments shall be made by you only into our trust banking account, the details of which are :-
FIRST NATIONAL BANK
Account Holder : MCH Attorneys Inc
Account Number: 62018634354
Branch Code : 220629
Swift Code : FIRNZAJJ
3.4 All payments shall be made free from demand, deduction and/or set-off in South African Rand.
3.5 We may elect to accept payment in another currency and, if so, you shall absorb any gain or loss from fluctuations in exchange rates, bank charges and for losses arising from late payment.
3.6 We need to approve in advance any proposal for any part of one of our bills to be paid by a third party. Notwithstanding our approval, you agree that you will remain responsible for paying the whole bill and any interest accrued on it.
3.7 All our bills are issued on the basis that we shall receive the amount billed. If you are obliged to pay withholding tax or any other tax, an equivalent amount must be added to our bill to ensure we receive the full amount of our bill.
3.8 Where work does not proceed to a conclusion or the mandate is terminated, we shall charge for all work done, together with all disbursements incurred by us in relation to the matter.
4. EXTERNAL ADVISERS AND OTHER THIRD-PARTY PROFESSIONALS
4.1 We may from time to time, where necessary, engage the services of third parties to provide services required in the discharge of our mandate/s and save where you provide written instructions to the contrary, we may engage such third parties as we in our sole and unfettered discretion deem fit and you shall be liable for the payment of such party’s fees and disbursements as determined or imposed by that party.
4.2 Without in any way limiting the scope and ambit of 4.1 above, the envisaged third parties shall include without limitation counsel, correspondent Attorneys, expert witnesses, valuers, sworn appraisers, auctioneers, estate agents, external debt collectors, private investigators, tracing agents and such other parties as the circumstances of each matter may require.
4.3 We are not responsible for the advice given or services provided by such third parties, nor shall we be held liable for any damages or prejudice suffered by you arising from such third parties’ conduct whether negligent or otherwise.
4.4 We are authorised by you to share confidential and/or privileged information in whatever format they may exist regarding you and your matter/s to such third parties.
4.5 We shall be free to unilaterally change the identity of the third party, should we deem it necessary for any reason whatsoever.
5. INSTRUCTIONS AND COMMUNICATIONS
5.1 We shall at all times be entitled to determine the manner in which to act for and represent you, give advice, and take your instructions whether it be by way of personal or virtual electronic meetings and consultations, telephone calls, text messages and/or emails.
5.2 You shall carry the duty at all times to timeously furnish us with all information relating to and relevant to your matter/s to avoid the risk of receiving legal advice and/or representations based on resultant incorrect assumptions and/or understandings on our part.
5.3 Until we sign this agreement, you shall not be entitled to assume that we will render any services.
5.4 You hereby acknowledge that attorney-client privilege attaching to our communications with you relating to any proceedings may be lost by you sharing our communications with any third party including, without limitation, people within your own organisation, family and social circle who are not directly involved in the giving of instructions to, or in the seeking, obtaining or receipt of, advice from us on your behalf.
5.5 You accept all risks associated with us communicating and/or consulting using electronic means and we shall not in any manner whatsoever be held liable or responsible for any harm, prejudice or loss associated with the materialisation of such risks, none whatsoever excepted.
6. TRANSFER AND TRANSMISSION OF FUNDS/FUNDS HELD FOR YOUR ACCOUNT
6.1 All transfers of client funds are made at the client’s risk and expense, and we do not accept liability for any loss, damage or delays.
6.2 Funds held by us for your account will unless you instruct us otherwise be placed into our trust account and will not accrue interest. If you wish for us to invest such funds in an interest-bearing account, we require a specific written instruction to do so, and funds so invested will not be subject to the protection accorded to trust funds.
7. KYC & AML PROCEDURES
7.1 We have a legal duty to verify the identity of all our clients, and, in the case of corporate clients, to establish their beneficial owners and to verify the identity of the beneficial owners, by obtaining satisfactory evidence of identity. The precise nature of the evidence required will vary according to circumstances, including the nature of your organisation or trading entity (where you are not instructing us as an individual). We shall set out these know-your-client requirements and request copies of the required documentation.
7.2 We may be unable to carry out your instructions if we are unable to verify your identity or, in some instances, the identities of your directors, shareholders and beneficial owners.
7.3 We may be required by law or regulation to report to a governmental or regulatory authority our knowledge and/or suspicion that certain criminal offences have been committed, regardless of whether such an offence has been committed by a client of ours or by a third party. We may not be able to discuss such reports with you because of restrictions imposed by those laws and regulations, and we may have to cease acting for you in those circumstances.
7.4 You hereby expressly agree that we are not responsible for any adverse consequences you may suffer as a result of our compliance with such laws and regulations.
8. CONTRACTUAL LIMITATION OF LIABILITY
8.1 To the extent permitted by law, our aggregate liability for all claims directly or indirectly arising from or connected with any matter (whether in negligence, breach of legal duty, breach of contract, delict (or tort) or otherwise and whether to you or any other person) is limited to the amount of the indemnity provided by our professional indemnity insurers in respect of such claims which you hereby agree you are satisfied with.
8.2 You agree that the services rendered under or in connection with the terms of our engagement are rendered by an incorporated legal entity and you waive all rights to taking any legal action against any individual director, employee or consultant of that entity in respect of any claim.
8.3 Should any instruction be renewed or extended, the above limitation of liability will apply to such renewal or extension.
9. CONFLICT CHECKS
9.1 We shall carry out an internal conflict check against the names and matter descriptions you give us. Where a potential conflict of interest arises, we may consult with you to determine whether or not a conflict does in fact exist. In certain circumstances we may require a written waiver of conflict from you in order to accept your instructions and act on your behalf without prejudice to our rights to represent another client or we may decline to act in the matter.
9.2 You hereby expressly agree that we are not precluded from acting for another party in any other matter with which you are associated provided that no professional conflict of interest arises.
9.3 You agree that we may act for other clients in transactions or disputes in which you or any affiliated entity of yours has an interest but ion which you or they have instructed another law firm, provided that we do not thereby breach our duty of confidentiality to you.
10. CONFIDENTIALITY
10.1 We will keep all information obtained from you, which is not in the public domain, confidential, and will only otherwise disclose it with your authority or if required to do so by the laws and professional regulations applicable to us.
10.2 Additionally, you agree that we may disclose any relevant information in order to protect and/or defend ourselves in any actual or threatened legal, civil or regulatory proceeding and may also disclose any relevant information in confidence to our insurers, insurance brokers, auditors and other advisers if and to the extent such disclosure may occur without waiving or losing any applicable legal privilege.
10.3 Where applicable, you shall provide us and will instruct your other advisers and any co-venturer or other co-participants to provide us, on any matter ion which we are instructed, with all relevant information and documents, all of which shall be deemed to have been properly obtained and on which we may rely without verification and you agree that, unless you instruct us in writing to the contrary, we may disclose any relevant information to your other professional advisers and also in confidence to our outsourcing contractors (such as information and document management services, technology providers, word processors, photocopiers, translators and other service providers) if and to the extent such disclosure may occur without waiving or losing any applicable legal privilege. You agree that such disclosure may occur by way of electronic means, knowing that certain risks (including, for example, interception, unauthorised access and risk of viruses) are associated with such means. We shall not, however, be responsible for any loss associated with the risks of using such electronic means.
10.4 You agree that we are under no duty to disclose to you or use on your behalf any information in respect of which we owe a duty of confidentiality to another client or any other person.
10.5 You agree that we may disclose our role as legal advisers in any matter ion which we are instructed following its completion, for the purposes of publicity and you also agree that, unless you instruct us otherwise, we may publicise the fact that we are or have been retained by you as your Attorneys.
11. DATA PROTECTION, EXCHANGE OF INFORMATION AND STORAGE OF DOCUMENTS
11.1 We will process personal data provided to us by you or your employees or agents in accordance with data protection standards required by the Protection of Personal Information Act, No. 4 of 2013 (POPIA) and any other applicable law.
11.2 In accordance with POPIA, MCH Attorneys Inc hereby provides the following information:
Type of Information:
Information containing personal information, which is required by MCH Attorneys Inc for purposes of rendering legal services.
Nature/category of Information and purpose:
Personal information for purposes of rendering legal services.
Source:
From the Client (data subject) directly.
Responsible party’s details:
MCH Attorneys Inc
Suite 5, 3 Rydall Vale Crescent
Rydall Vale Park
La Lucia Ridge
Voluntary/Mandatory:
The Client is required to provide the information voluntarily and understands that same is mandatory for purposes of MCH Attorneys Inc rendering services on behalf of the Client.
Legal Requirement:
MCH Attorneys Inc will be required in terms of statutes such as the Financial Intelligence Centre Act 38 of 2001, King Reports on Corporate Governance or similar, to collect the information for reporting to Governmental structures and for responsible record keeping and statistical purposes.
Contractual Requirement:
The information is required in terms of the mandate between MCH Attorneys Inc and the Client.
Consequences of failure to provide:
Failure to provide the information will result in MCH Attorneys Inc being unable to perform instructions.
Recipients of personal information:
MCH Attorneys Inc and third- party advisors.
Access and right to amend:
The Client has the right to access and amend his/her/its personal information at any reasonable time.
Right to object:
The Client is entitled to object to the use of information.
Complaints:
All complaints regarding the use of personal information may be directed to the Information Regulator.
11.3 The Client (as data subject), by signing this Agreement, hereby consents to the use of the Client’s personal information and confirms that:
11.3.1 the information is supplied voluntarily, without undue influence from any party and not under any duress;
11.3.2 the information which is supplied herewith is mandatory for the purposes of this Mandate and that without such information, MCH Attorneys Inc will be unable to perform legal services;
11.3.3 The Client acknowledges that MCH Attorneys Inc is aware that the Client has the following rights with regard to such personal information which is hereby collected. The right to:
11.3.3.1 access the information at any reasonable time for purposes of rectification thereof;
11.3.3.2 object to the processing of the information in which case this agreement will terminate in accordance with the provisions contained herein; and
11.3.3.3 lodge a complaint to the Information Regulator.
12. FILES
In the interests of storage space, we shall destroy any file (except documents in safe custody) at any time, seven (7) years after the earlier of the date of our final invoice to you in the matter to which the documents relate or date of termination of our mandate.
13. DOCUMENTATION
You are free to use and copy all documentation created by us in the course of any matter, but it must be kept confidential by you unless we agree otherwise in writing. Notwithstanding any such agreement, we retain all copyright and other intellectual property rights in all material developed, designed and created by us in the course of the matter which will remain our property. We may use all documents created by us in the course of any matter for legal training, forms and research purposes or any other purpose without reference to or consent from you.
14. CHANGES BY OTHERS TO OUR WORK PRODUCT
If we transmit or provide any document to you or to another party, and changes are made to the document by someone else, we are not responsible for any loss caused by the changes, whether directly or otherwise.
15. OFFICIAL ENQUIRIES
It is possible that because we have been appointed in a matter, or because we have received funds, documents or information in the course of, or in connection with, a matter, we may be required in future to participate in an enquiry, commission or proceedings arising out of or in connection with the matter. This may, for example, involve us producing documents, seeking to claim or defend your privilege to resist inspection or disclosure of certain documents or information, or giving evidence at an enquiry. We shall endeavour to seek your instructions if these circumstances arise, but in any event, you hereby agree to reimburse us for out-of-pocket expenses and for the time we spend at our hourly rates then current.
16. INTEGRITY AND ETHICS
Our policy is to act at all times in accordance with the highest professional, ethical and business standards, and we expect you to act in a like manner in all your dealings with us and your business counterparties. We do not countenance bribery or corruption in any form , and you agree :-
(i) not to expect or request any conduct from us that might bring our name into disrepute or compromise our integrity;
(ii) that you and your employees and agents will refrain from any practices involving bribery or any other corrupt activities; and,
(iii) that you have taken or will take internal steps or procedures designed to ensure that the risk of corruption and bribery during the course of our relationship is eliminated.
17. ENFORCEABILITY
17.1 The provisions contained in each paragraph of this agreement are enforceable independently and their validity is not affected if any of the provisions are invalid. If any provision is void but would be valid if some part of it were deleted, the provision will apply with any necessary modification to make it valid.
17.2 The engagement set out in this letter is governed by South African law.
17.3 You consent to the jurisdiction of the KwaZulu-Natal Local Division, Durban of the High Court or the relevant Magistrate’s Court having jurisdiction in respect of the enforcement of this agreement.
18. FORCE MAJEURE
Neither you nor us will be responsible for failure to perform our respective obligations concerning your instructions (save for your responsibility to pay our bills in full) if the failures are due to causes outside, respectively, your or our control.
19. TERMINATION
19.1 Either you or us may terminate our engagement at any time by giving written notice to the other.
19.2 An attorney/client relationship exists between you and us only if, at the relevant time, we are working under instructions from you. We shall have no duty to provide you with advice at any other time concerning changes in laws, rules or regulations that might affect your rights. Further, if we are not under instructions from you at a given time, you agree that, unless prohibited by applicable laws or regulations, we are entitled to accept at that time other instructions to act in respect of the subject matter of your previous instructions although we will not disclose to, or use to the benefit of, another client, any information or documents in respect of which we owe you a duty of confidentiality.
20. ACCEPTANCE
Your signature hereunder constitutes your offer to retain our services on the mutually agreed terms recorded above and our counter signature shall constitute our acceptance of your offer.
21. AMENDMENTS
From time to time, we may amend these terms of engagement and if this occurs, you hereby agree to such changes as notified by us in writing to you.
_______________________________
for CLIENT
NAME :
DATE :
PLACE :
_______________________________
for MCH ATTORNEYS INC
NAME :
DATE :
PLACE :