I the undersigned to hereby agree to the terms and conditions detailed below.
1 :: Definitions
1.1. “Agreement” means this agreement, and any schedules and price lists, as may be amended from time to time.
1.2. “Client/s” means your clients and customers, being individuals who consult with you for goods, services, advice and/or treatment.
1.3. “Confidential Information” means all information disclosed by you and/or your Clients, and includes, without limitation: Client information, including names, identifying numbers, contact details, business or personal conditions, insurance details, family members’ details; your information, including your name, registration number, practice number, contact details; your business information, including strategies, intentions, product information, design rights, trade secrets, patents, trademarks, employee details, financial information; and all information that is confidential, relates to your business affairs, and is not generally available to the public.
1.4. “Effective Date” means the date that you appoint Kitrin to perform the Services.
1.5. “Fees” means the monthly (or annual, as applicable) fees payable by you to Kitrin in remuneration for the Services, and any additional fees, charges, costs and expenses reasonably incurred in the performance of the Services.
1.6. “Initial Period” means a period of 12 (twelve) months calculated from the Effective Date.
1.7. “Kitrin” means Kitrin (Pty) Ltd, a private company incorporated in accordance with the laws of South Africa.
1.8. “Services” means Administration Services, Financial Services and Marketing Services performed for you by Kitrin, and includes any consulting and ancillary services rendered by Kitrin and such other services as may be agreed in writing.
1.9. “You, your” means you, the Client, being a professional practitioner, advisor, sole proprietor and/or business entity for whom Kitrin will perform the Services.
1.10. “Website” means the internet site owned by Kitrin being www.theforge.online, or such alternate internet site that Kitrin may notify to you in writing.
1.11. Reference to the singular includes the plural, reference to natural persons includes legal persons, and reference to gender includes the other gender and the neuter.
2 :: Appointment and Duration
2.1. You appoint and grant Kitrin the mandate, and Kitrin accepts this appointment and mandate, to perform the Services.
2.2. This Agreement does not create a relationship of employment, agency or partnership between you and Kitrin. You will remain solely liable for the proper conducting of your affairs, including the marketing, administration, operational and financial components of your business affairs. Such affairs and marketing, administration, operational and financial components are not in any way being delegated to Kitrin, and Kitrin’s appointment will be limited to one of service provider to you and your business.
2.3. This agreement will commence on the Effective Date and endure for the Initial Period. Kitrin will notify you 2 (two) calendar months before the termination of the Initial Period, whereupon you will have the option of:
2.3.1. cancelling this Agreement at the end of the Initial Period. Your election to cancel must be notified to Kitrin in writing no less than 30 (thirty) days before termination of the Initial Period; or
2.3.2. renewing this Agreement for a further 12 (twelve) month period.
2.4. If you fail to make an election in terms of 2.3 above, this Agreement will continue operating and will be subject to termination by either party on 1 (one) calendar month’s written notice. In such instance, the monthly Fees will be increased to the monthly fees chargeable in accordance with Kitrin’s standard schedule of fees at the time plus 10% (ten percent).
2.5. Notwithstanding 2.3 above, you will be entitled terminate this Agreement without penalty on 20 (twenty) business days written notice within the first 2 (two) months after the Effective Date. This clause 2.5 will not apply to any renewal of this Agreement.
2.6. Should you terminate this Agreement prematurely, other than in terms of 2.5, you will be liable to pay a cancellation fee equating to a minimum of 2 (two) months’ Fees.
3 :: Fees payable
3.1. You will pay to Kitrin monthly fees in accordance with Kitrin’s standard schedule of fees, as reflecting on the Website.
3.2. Fees are payable by debit order, monthly in advance. No refunds will be given in the event that you terminate this Agreement early, and any payment made towards an unused period of the month will be retained by Kitrin.
3.3. Alternatively, Fees may be payable annually in advance. Should you elect an annual payment option, you understand that the annual Fees comprise a discounted fee, and accordingly no refunds will be given in the event that you terminate this Agreement early for any reason. Any payment made towards an unused period of the year will be retained by Kitrin as a cancellation penalty.
3.4. Should Kitrin terminate this Agreement early, and provided that you have not breached any term of this Agreement, Kitrin will reimburse you the pro-rata Fees that you have paid in respect of the unused period of the applicable contract period.
3.5. You will reimburse Kitrin for any out-of-pocket expenses reasonably incurred by Kitrin in its performance of the Services, including, without limitation, travel and accommodation expenses, and any fees paid to consultants, auditors, attorneys, contractors, debt-collectors or specialists. Kitrin will notify you of the need for these expenses before incurring them. Any such additional fees, charges and expenses will be payable by you within 7 (seven) days after invoice.
3.6. Kitrin reserves the right to review the Fees in the event that additional Services are required, or due to a change in any material factor affecting the Services. Fees are calculated according to the size of your business. Accordingly, Fees may be increased should the size of your business increase. Fees will increase annually, effective 01 January each year, in an amount determined by Kitrin, but not exceeding 10% (ten percent). Kitrin will give you no less than 30 (thirty) days written notice of any intended increase in Fees.
3.7. Outstanding amounts will attract a penalty of 2% per month, compounded monthly.
3.8. Kitrin will be entitled to suspend its performance of the Services should any amount due by you be outstanding, until such time as full payment has been made. Such suspension will not constitute a breach of this Agreement.
4 :: Operations and Administration Services
4.1. “Administration Services” means administrative and operational services performed by Kitrin on your behalf, including Client appointment scheduling, invoicing, payment allocations, following up on insurance claims, debtor management, and such other administration services as may be offered to you by Kitrin from time to time.
4.2. As many of the Administration Services are conducted electronically, it is your responsibility to ensure that you have uninterrupted internet connectivity and access to the Website. In the event that you identify, experience or encounter any technical difficulties with the operation of the Website, you will notify Kitrin without delay. Kitrin will endeavour to correct the technical problem as soon as reasonably practicable, this being the sole extent of Kitrin’s liability associated with such technical difficulty.
4.3. Client bookings will be facilitated via the booking system on the Website. Client understands that Kitrin will not be held liable for any incorrect, incomplete or ambiguous information provided by Clients, nor will Kitrin be liable if Clients arrive late for an appointment, fail to arrive, or cancel just before their appointment, for whatever reason.
4.4. You acknowledge that invoicing and payment allocation is dependent on you providing the correct descriptions, codes, charges and amounts paid. Kitrin will follow up with Clients to request payment of outstanding charges and, where necessary, assist you in referring defaulters to registered debt-collectors for legal action.
4.5. When liaising with insurance companies, Kitrin will need to possess the correct insurance policy details. Accordingly you will be responsible for viewing each Client’s original insurance card, making a copy of the details, and verifying the details against the Client information on the Website.
4.6. The primary communication channel used to communicate with Clients will be their email addresses and/or mobile numbers. It remains your responsibility to ensure that Kitrin is provided with correct and up-to-date Client contact details.
4.7. You understand and acknowledge that Kitrin gives no guarantee that the Services will result in profits, increased profits or reduced bad debts, and further that Kitrin cannot be held liable for any losses, increased losses or other damages suffered by you
5 :: Financial Services
5.1. “Financial Services” means bookkeeping and monthly management accounts, SARS submissions and returns, generation of annual financial statements, and such other financial services as may be offered to you by Kitrin from time to time. Financial Services do not include payment services or payroll management unless expressly agreed in writing.
5.2. Kitrin may charge a once-off initiation fee for set-up and general take-on of your accounts if your bookkeeping is not up-to-date as at the Effective Date.
5.3. Kitrin will not be responsible for any registrations required for you to lawfully operate your business. You will complete any registrations with all necessary authorities as required to carry out your business lawfully, including registration with relevant professional bodies, CIPC and/or SARS registrations, and including registrations for the payment of all taxes, levies and duties, and obtaining any licences and/or permits required to conduct your business.
5.4. You will remain liable to pay any penalties, fines or interest levied against you by any competent authority, for whatever reason. Kitrin will assist you should you have grounds on which to challenge any such charges, but under no circumstances will Kitrin be liable for any penalties, interest or fines that may be levied against you from time to time, for whatever reason.
6 :: Marketing Services
6.1. “Designs” means the design, creation and generation of a website, artwork, graphic design, Marks, processing images and logos, videography, photography, profiles, advertisements and other creative design services.
6.2. “Marketing Services” means website management, content generation, electronic listings, and such other marketing services as may be offered to you by Kitrin from time to time, but excludes the provision of Designs.
6.3. “Marks” means the various trademarks, service marks, trade names, logos and other words or symbols identifying you and/or your practice, goods or services.
6.4. You will be responsible for providing Kitrin with your Marks and Designs. You warrant that you are entitled to such Marks and Designs, including all related copyright and trademarks, and that your Marks and Designs do not breach any law or third party rights. Kitrin is entitled to reject any Marks or Designs that you provide by virtue of the Mark or Design being: unlawful; unethical; damaging to Kitrin’s reputation; furnished in the incorrect format; a breach of any third party’s rights or copyright; discriminatory; inciteful; offensive; or otherwise potentially damaging, as determined in Kitrin’s sole discretion.
6.5. If Kitrin agrees to create and provide Designs for you, at Kitrin’s sole discretion, this will result in additional Fees being charged at Kitrin’s standard rates.
6.6. You will remain responsible for paying your own domain charges, domain renewal charges and hosting charges.
6.7. Before publishing any Design, data, content or listing, Kitrin will submit a proof to you for approval. You agree to approve or reject the proof within 5 (five) business days. If you reject the proof you will provide reasons for your rejection. Your delay or failure to approve or reject will not have any impact on payment dates, and you will remain liable for the payment of all Fees.
6.8. You will be responsible for ensuring that Kitrin is in possession of your most up-to-date details, including name, business address, email address and contact details.
6.9. Kitrin will not, under any circumstances, be liable for any errors, omissions or ambiguities in any content or listing, and nor will Kitrin bear any responsibility for ensuring that content and listings remain up-to-date. You will be responsible for ensuring that all content and listings are and remain correct in all material aspects and will further regularly review the content and listings to confirm the continued correctness thereof.
6.10. While Kitrin will endeavour to publish content and listings without delay, you understand that unavoidable delays and unintentional or third party errors may affect colour, content, positioning or publication dates, for which Kitrin will not be held liable.
6.11. As applicable, Services will be primarily based on mainstream technology and devices. Kitrin will not be liable for any technical difficulties experienced due to users using new or alternate technology and/or devices. As new hardware and software platforms are adopted worldwide and become considered as mainstream, Kitrin may adapt its technological capabilities to allow the Services and any associated applications to work with such new technology, where Kitrin adjudges it to be commercially feasible.
6.12. Support and maintenance for your website is limited to a maximum of 2 (two) hours of maintenance per month, or such increased hours that may be included in the Services package chosen by you. Unused time in a given month will be lost and may not be carried over to the next month.
6.13. You will remain responsible for: the accuracy, legibility, currency, and compliance of your website and content; for any actual or alleged false, misleading, inaccurate, infringing or dated material; and for compliance with any legal requirements.
6.14. Production, publication and completion of Marketing Services may vary due to, without limitation, changes to website pages, and delays in your provision of input and approvals. Timelines for the completion of Marketing Services will be a guideline only, and expected completion dates may change due to unexpected delays.
6.15. Third party service providers may update their services, processes and products from time to time, affecting the Marketing Services. You acknowledge that these changes are beyond Kitrin’s control. On fulfilment of the Services, Kitrin will not be responsible for upgrading or modifying any content or listings to comply with any updates.
6.16. Kitrin will endeavour to guard against downtime, security breaches, viruses and system failures, but does not warrant same. Kitrin will not be liable to you for any network interruptions, security breaches, downtime or interruption of internet service providers, and you will remain liable to pay all Fees on their due dates.
6.17. Kitrin does not warrant or guarantee that information transmitted by or available to you by way of the Services will be preserved or be free of inaccuracies, defects, viruses or hacking. Kitrin assumes no liability in regard to these exclusions.
6.18. You undertake responsibility for you own data storage, back up processes, virus protection mechanisms, security, and all other IT-related requirements not included in the Services.
7 :: Confidential Information
7.1. In order to facilitate Kitrin’s performance of the Services you will be required to provide identification, contact details, financial information, Client information and other documents, records and data, including Confidential Information, as part of the registration process and continued use of the Services. All information that you are required to disclose must be promptly updated after any change. Kitrin will not be responsible for any errors, omissions, fines or penalties as a result of your failure to provide or update this information timeously, accurately and honestly.
7.2. To properly perform the Services, Kitrin may from time to time and within reason: request additional information and documentation; require you to provide approvals and input; and/or ask you to conduct certain tasks or discharge certain obligations. If you fail to do so you will remain liable to Kitrin for payment of the Fees, regardless whether the Services have been fully completed, and Kitrin will not be liable for any delays or non-compliance caused by your omission or delay.
7.3. Kitrin will keep all Confidential Information strictly confidential, and will not use the Confidential Information for its own benefit or transfer or disclose such Confidential Information or part of it to any person not authorised to receive it, except with your prior written consent or otherwise as may be required or permitted by law.
7.4. Insofar as may be applicable, Kitrin will implement such measures, controls and security safeguards as may be reasonably necessary for it to discharge its legal obligations in respect of any data protection and privacy laws that may apply to its provision of the Services. You will remain liable to comply with and discharge all and any statutory, regulatory and supervisory requirements relating to your affairs, business and Client confidentiality, and specifically any data protection and privacy law requirements related to your commercial affairs, business and confidentiality obligations. You will remain responsible and accountable in respect of the collection, provision, publication, use and recordal of Confidential Information, including the accuracy and quality of such information, and the legitimacy of the purpose for which the information has been collected, recorded and used. Where required by law, you will notify affected customers, Clients and service providers of your use of the Kitrin’s Services and obtain any consents as may be legally required.
8 :: Limitation of Liability
8.1. Kitrin will perform and render Services conscientiously and in accordance your reasonable requirements, and will endeavour to provide suggestions and general services based on latest developments.
8.2. Kitrin will take reasonable steps to secure its IT infrastructure with anti-virus software and suitable encryption tools and will make every effort to protect the Confidential Information. While Kitrin will use commercially reasonable efforts to comply with this clause, Kitrin does not warrant that the Services will be completely free from virus, hacking, theft or error.
8.3. Kitrin will not be liable for any consequential or special damages regardless of cause, including without limitation, Client or third party claims, fines or penalties imposed on you, damages caused by loss of data, loss of profits, lost opportunity costs or loss of anticipated savings, or resulting in expenses or wasted staff time. You indemnify Kitrin against all such claims and damages.
8.4. You agree to and hereby hold harmless and indemnify Kitrin, and its holding, sister and subsidiary companies, as well as its affiliates, officers, directors, agents, employees, advertisers and partners, from and against any claim by a Client and/or third party arising from or in any way related to your use of the Services, your violation of this Agreement, or any other actions connected with your use of the Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), actions, judgments, litigation costs and attorneys’ fees, of every kind and nature. As applicable, Kitrin will provide you with written notice of any such claim, suit or action brought or threatened against it.
8.5. Without detracting from the contents of this clause 8, in the event that Kitrin is found to be liable to you for any reason by any competent authority having jurisdiction, Kitrin’s cumulative liability to you or any other party for any loss or damages resulting from any claims, demands or actions arising out of or relating to this Agreement will not exceed the aggregate Fees paid by you to Kitrin over the 6 (six) month period preceding the date the cause of action arose.
8.6. In the event that an applicable law does not allow limitations on implied warranties or the exclusion or limitation of certain damages, any disclaimer, exclusion or limitation herein that is affected by such law will be modified to comply strictly with the applicable legislation and all remaining provisions in this clause 8 will continue in force.
8.7. Although Kitrin uses all reasonable commercial efforts to maintain the confidentiality of Confidential Information, you agree that you will not hold Kitrin liable for any damages, regardless of its cause, and including, without limitation, due to technical glitches, unauthorised intrusion into the Kitrin’s data processing system, or bona fide error.
9 :: Termination and Breach
9.1. This Agreement may be terminated by Kitrin with immediate effect if you fail to pay any Fees that are due, and despite having received written notice demanding payment.
9.2. This Agreement may be terminated by either party if:
9.2.1. the other commits a material breach of the Agreement;
9.2.2. the other commits an act of insolvency;
9.2.3. the other is placed into liquidation or under judicial management, business rescue or debt administration, whether provisionally or finally;
9.2.4. a judicial manager, curator or trustee is appointed to the other Party, whether provisionally or finally; or
9.2.5. the other is deregistered, dissolved, or ceases to carry on business.
9.3. Any clause that impliedly survives termination will survive termination of this agreement.
9.4. Forthwith upon termination of this Agreement Kitrin will terminate the Services. Copies of your data and any Confidential Information stored by Kitrin and/or in Kitrin’s possession as at the termination date will be made available for your collection and/or electronic download for a period of 10 (ten) days following the cancellation hereof, whereafter Kitrin will delete such data and Confidential Information, with the exception of any information that Kitrin is lawfully obliged to retain, which information will be promptly destroyed after termination of the legal retention period. It is your sole responsibility to ensure that you retrieve such data and Confidential Information from Kitrin.
9.5. Should either party commit a breach of this agreement and fail to remedy such breach within 20 (twenty) days after receipt of written demand, the aggrieved party will be entitled to either claim specific performance or to cancel this agreement, and to claim damages from the defaulting party, including any attorney and client legal costs incurred. Provided that cancellation will only be permissible in the event of a material breach.
10 :: General
10.1. Any notice under this Agreement will be delivered to the physical business address of the parties as set out in writing, being the address at which each party agrees to receive all notices, or as amended on written notification to the other party. In addition, Kitrin may send you notices via email, and/or display links to such notices on the Website. Kitrin is permitted to use such methods to inform you of any notifications under this Agreement, including renewals and any pricing adjustments, as well as provide you with letters of demand.
10.2. Any reference to Kitrin’s obligation to provide written notice will include the provision of electronic notices, including the provision of publicly-available notices on the Website, emails sent to the latest email address provided by you, and private notices posted to your profile on the Website.
10.3. Neither party will, without the other’s consent, either during, or within 1 (one) year after termination hereof, employ or solicit for employment any employee of the other party, nor in any way bring about or cause the resignation of any employee of the other party.
10.4. You will not assign, cede or delegate any of your rights or obligations hereunder or any part thereof, or attempt to do so, without Kitrin’s prior written consent.
10.5. Kitrin may assign its rights and obligations on 2 (two) months prior written notice to you.
10.6. If any provision of the Agreement is invalid or unenforceable, such provision will be amended, if possible, to give effect thereto, and failing that, deleted. The remaining provisions will remain of full force and effect.
10.7. No indulgence by either party will be construed as a waiver of or otherwise affect any rights in terms hereof, or prevent a party from enforcing compliance with this Agreement.
10.8. This Agreement constitutes the whole agreement between the parties. No amendment, variation or cancellation hereof will be binding unless in writing and signed by both parties. You may also be subject to additional terms and conditions that may apply when you use or purchase certain other Kitrin services, affiliate services, third-party content or third-party software. Such additional terms will not supersede this Agreement. In the event of conflict the more restrictive provision will apply.
10.9. Every attempt has been made to ensure this agreement has been drafted in accordance with all statutory requirements. Any non-compliance is not intended by the parties. If any provision is held to be unenforceable for any reason, including pursuant to a legal requirement or any change in the law that impacts upon this agreement, such provision will be adjusted, if possible, to achieve the intent of the parties, within legal parameters. If adjustment is not possible, the provision will be deleted and all other provisions will be considered valid and enforceable.
10.10. This Agreement will be governed by and interpreted in accordance with the laws of South Africa. You and Kitrin hereby submit to the jurisdiction of the High Court of South Africa. In the event of any conflict with any other law, the law of South Africa will apply.