Consultancy Agreement - ImpactHer RSA
1.1 The Parties to this Agreement are –
1.1.1 registered in (hereinafter referred to as the "Company"); and
1.1.2 with identification number located in (hereinafter referred to as the "Consultant").
THE PARTIES AGREE AS SET OUT BELOW –
2.1 The Company hereby engages the Consultant to perform the consultancy and related services set out in the Schedule to this Agreement (the “Services”).
3.1 This Agreement shall continue for a period of and automatically terminate on .
3.2` This Agreement may be extended from time to time by the Parties.
4.1 This Agreement contemplates a consultancy arrangement in terms of which the Consultant shall act as an independent consultant to the Company in carrying out the Services. No employment relationship or contract of employment comes into being or exists between the Company and the Consultant, and no relationship of employment or contract of employment has been established between the Parties by way of this Agreement and the Services to be provided in terms of this Agreement.
4.2 The Consultant shall not be and shall not be deemed to be an agent, representative or servant of the Company, save where he is authorised in writing or in terms of this Agreement by the Company to act on its behalf, in which event he shall do so only in accordance with the terms of the Company's prior written authorisation or this Agreement.
4.3 The Consultant agrees and undertakes not to bind the Company in any way, save with the prior written authorisation of the Company.
4.4 The nature of the relationship between the Company and the Consultant is not exclusive and the Company and the Consultant shall be free to conclude similar contractual arrangements with other third parties.
5.1 The Consultant shall provide to the Company the Services set out in the Schedule to this Agreement.
6.1 Consultant shall –
6.1.1 be solely responsible for the performance of the Services in accordance with the provisions of this Agreement;
6.1.2 perform the Services and its other duties under this Agreement in good faith, with the required duty of care and with highest level of professional expertise; and
6.1.3 do all such acts as may be reasonably required in furtherance of the objectives of this Agreement.
6.2 Company shall –
6.2.1 provide the necessary information and or documentation as may be reasonably required by the Consultant that will ensure that the Services are performed according to the terms of this Agreement; and
6.2.1 do all such acts that are within its capacity and as may be reasonably required in furtherance of the objectives of this Agreement.
7.1 In consideration for the Services to be rendered by the Consultant under this Agreement, the Company agrees to pay the Consultant the Commission in the sum of .
7.2 The Company reserves the right to unilaterally change the applicable commission rate referred to in clause 7.1 above by giving the Consultant 3 (three) months' notice in writing.
7.3 Any credits which may be passed for quality and manufacturing defects, will not be deducted from the Commission.
7.4 Subject to clause 7.3 above, the Company will pay the Commission net of credits.
7.5 The Company will deduct the wholesale value of any Product for which a credit has been passed, if the Product is not received by the Company by the 15th (fifteenth) day of the following month.
7.6 The Company shall not be responsible for any Out of Pocket Expenses incurred by the Consultant in the provision of the Services.
7.7 Notwithstanding the provisions of this clause 7 –
7.7.1 The Consultant shall be liable for any and all losses suffered by the Company as a result of the Consultant's failure to perform the Services in accordance with the provisions of this Agreement; and
7.7.2 The Company will be entitled to deduct any costs incurred in relation to the freight, both to and from the Customer, if the Company, in its sole discretion, deems the Consultant to have been negligent in the provision of the Services.
8.1 In the event of the Consultant failing to discharge any of the Services to the reasonable satisfaction of the Company, the Commission payable to the Consultant shall be adjusted accordingly on a pro-rata basis.
8.2 The Consultant shall submit detailed invoices to the Company by no later than close of business on the first business day of each month of this Agreement.
8.3 The invoices submitted to the Company must be based on the provisional commissions report issued by the Company each month. Should the Consultant need to adjust their invoice based on the final commissions report issued by the Company later in the month, the additional Commission (if any) shall be paid together with the following month's Commission.
8.4 The Commission shall be paid to the Consultant in arrears and by no later than the 5th (fifth) business day of the month.
8.5 All payments shall be made by the Company by way of direct deposit into the bank account nominated in writing by the Consultant.
9.1 Unless and until the Consultant obtains, and provides the Company with, a valid written tax directive from SARS or other proof to the satisfaction of the Company in relation to the deduction and payment of tax in respect of the Commission, the Company shall deduct in accordance with the provisions of the Fourth Schedule to the Income Tax Act, No. 58 of 1962, and pay over to SARS, PAYE from the Commission.
9.2 The Consultant shall be solely responsible for submission of tax returns to SARS and the payment of the full tax liability in respect of the payments to be made to them by the Company in compliance with this Agreement.
9.3 The Consultant indemnifies the Company in respect of any claims or demands which may be made by the relevant authorities against the Company in respect of any PAYE and any other similar matter relating to this Agreement and the fulfilment of their obligations in terms of this Agreement.
10.1 The Company shall not be liable for any injury, loss or damage sustained by the Consultant during the fulfilment of their obligations in terms of this Agreement.
10.2 The Consultant hereby indemnifies the Company and/or any of its directors, employees and/or nominees against any claims arising from or in connection with any injury, loss or damage sustained by the Consultant during the course of the fulfilment of his obligations in terms of this Agreement.
11.1 If a Party ("Defaulting Party") breaches any of the provisions of this Agreement, the other Party ("Aggrieved Party") shall be entitled to furnish the Defaulting Party with 7 (seven) consecutive days' written notice to remedy the breach. Should the Defaulting Party fail to remedy the breach within the 7 (seven) days, the Aggrieved Party shall be entitled to cancel the Agreement or to demand fulfilment by the Defaulting Party of all its obligations in terms of this Agreement, without prejudice to the Defaulting Party's right to claim whatever damages may have been sustained as a result of the Aggrieved Party's breach of this Agreement.
11.2 The aforementioned provisions are without prejudice to any other rights the Aggrieved Party may have in law, including the immediate termination of the Agreement without notice in the event of the Defaulting Party committing a material breach of the Agreement.
12.1 This Agreement may be terminated at any time by either Party giving the other Party 30 (thirty) days’ written notice of termination.
12.2 The Consultant undertakes that he shall not, at any time after the termination of this Agreement, for whatever reason, represent itself as being in any way connected with the business or activities of the Company.
13.1 It is recorded that the Consultant, by virtue of his performing the Services, will become possessed of, and will have access to the Confidential Information.
13.2 The Consultant acknowledges that –
13.2.1 the Confidential Information is a valuable, special and unique asset of the Company;
13.2.2 the Confidential Information is proprietary to the Company and the Consultant has no rights of whatsoever nature in such Confidential Information; and
13.2.3 the Company may suffer irreparable harm or substantial economic and other loss in the event of such Confidential Information being disclosed or used by the Consultant otherwise than in accordance with this Agreement.
13.3 The Consultant irrevocably and unconditionally agrees and undertakes, during the period of this Agreement and after the termination thereof –
13.3.1 to treat and safeguard the Confidential Information as strictly private and confidential;
13.3.2 not to use or permit the use of the Confidential Information for any purpose other than exclusively in connection with the performance of the Services in terms of this Agreement and, in particular, not to use or permit the use of the Confidential Information, whether directly or indirectly, to obtain a commercial, trading, investment, financial or other advantage over the Company or otherwise use it to the detriment of the Company;
13.3.3 except as permitted by this Agreement, not to disclose or divulge, directly or indirectly, the Confidential Information in any manner to any third party for any reason or purpose whatsoever (except as required by the terms of this Agreement) without the prior written consent of the Company, which consent may be granted or withheld in the sole and absolute discretion of the Company;
13.3.4 not to decompile, disassemble or reverse engineer or otherwise modify, adapt, alter or vary the whole or any part of the Confidential Information;
13.3.5 not to copy or reproduce the Confidential Information by any means without the prior written consent of the Company, it being recorded that any copies shall be and remain the property of the Company and shall be surrendered to the Company on demand and in any event on the termination of this Agreement, and the Consultant will not retain any copies thereof or extracts therefrom or any form of record thereof, whether in written or electronic form; and
13.3.6 to keep all Confidential Information safely and securely and to take all such steps as may be reasonably necessary to protect it against theft, damage, loss, unauthorised access (including access by electronic means) and to prevent Confidential Information from falling into the hands of unauthorised third parties.
13.4 The undertakings given by the Consultant in this clause shall not apply to any information which –
13.4.1 is or becomes generally available to the public other than by the negligence or default of the Consultant or by the breach of this Agreement by the Consultant;
13.4.2 the Consultant is authorised in writing to disclose by the Company; or
13.4.3 is disclosed pursuant to a requirement or request by operation of law, regulation or court order.
13.5 In the event that the Consultant is required to disclose information relating to the Company pursuant to clause 13.4, they will –
13.5.1 advise the Company thereof in writing prior to disclosure, if possible;
13.5.2 take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that he lawfully and reasonably can;
13.5.3 afford the Company a reasonable opportunity, if possible, to intervene in the proceedings; and
13.5.4 comply with the Company's reasonable requests as to the manner and terms of any such disclosure; and
13.6 Upon the termination or expiration of this Agreement for any reason, Consultant shall deliver to Company all the Confidential Information in a tangible form that Consultant may have in its possession or control.
14.1 The Consultant consents to the Company holding and processing personal information (as defined) in the Protection of Personal Information Act, No. 4 of 2013 ("POPI"), relating to the Consultant for legal, personnel, administrative and management purposes including information relating to any criminal proceedings in which the Consultant has been involved and to comply with legal requirements and obligations to third parties.
14.2 The Consultant consents to the Company making such information available to those who provide products or services to the Company.
14.3 Consultant hereby acknowledges, accepts and agrees that they consent to the interception and monitoring of any communication that they may send or receive using the Company's equipment or during the course and scope of their appointment by the Company and waive the protections afforded to them in this regard in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, No. 70 of 2002 , as amended from time to time or POPI.
15.1 Whole agreement
15.1.1 This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on any of the Parties.
15.2 Variations to be in writing
15.2.1 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.
15.3 No waiver or suspension of rights
15.3.1 No waiver, suspension or postponement by any Party of any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
15.4 Provisions severable
15.4.1 All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement, which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect.
16.1 The Consultant hereby undertakes and agrees that intellectual property in any work produced in the course of providing the Services shall be the sole property of the Company.
16.2 The Consultant hereby irrevocably assigns any and all rights in such works to the Company.
The Consultant shall carry out the following services –
SIGNED at on February 3, 2023 for and on behalf of , by:
In the presence of:
SIGNED at on February 3, 2023 by :
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Document Name: Consultancy Agreement - ImpactHer RSA
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