TERMS AND CONDITIONS
1. CONFIDENTIALITY
1.1. For purposes of this clause 1, the Party disclosing Confidential Information (defined below) will be referred to as the “Disclosing Party” and the Party receiving Confidential Information will be referred to as the “Receiving Party.”
1.2. The Receiving Party shall hold in confidence all information of whatever nature which has been or may be obtained from the Disclosing Party, including but not limited to business data, financial data, know-how, formulae, processes, customer lists, price lists, findings, computer software, inventions or ideas (“Confidential Information”). The Receiving Party shall not disclose the Disclosing Party’s Confidential Information other than to the Receiving Party’s directors, officers, employees, agents, advisors, representatives or affiliates (“Representatives”) who have a need to know such Confidential Information for purposes of performing its obligations as set out in this Agreement.
1.3. Upon the Disclosing Party’s written request, the Receiving Party shall return the Confidential Information, or at the Disclosing Party’s discretion, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof, other than for legal, audit and/or archival purposes. Any Confidential Information retained in accordance with the aforesaid will remain subject to the terms of this clause 1.
1.4. It is recorded that the following information will not be considered as Confidential Information:
– Information known to the Receiving Party prior to the date that it was received from the Disclosing Party;
– Information known to the public or generally available to the public prior to the date that it was disclosed by the Disclosing Party to the Receiving Party;
– Information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by the Disclosing Party to the Receiving Party, through no act or failure to act on the part of the Receiving Party;
– Information which the Receiving Party has obtained written authorisation to disclose from the Disclosing Party; or
– Information which is required to be disclosed under applicable law or by a governmental order, decree, regulation, or rule, provided that, if legally permissible, the Receiving Party shall give written notice to the Disclosing Party prior to such disclosure in order to afford the Disclosing Party an opportunity to seek a protective order or other appropriate relief, and provided further that in any case the Receiving Party shall furnish only that portion of the Confidential Information that it is legally required to disclose.
2. DUE DILIGENCE
2.1. As per VAT IT’s due diligence procedures, VAT IT shall be entitled to perform sanction and compliance checks on the Company at its sole expense, as and when it deems fit (“Checks”). In the event that the Company does not successfully pass any Checks, VAT IT shall be entitled to terminate this Agreement immediately upon written notice to the Company and may withdraw any claims and/or refrain from performing the Services on behalf of the Company. VAT IT shall not be liable for any damages suffered by the Company as a result thereof.
3. INVOICING AND PAYMENT
3.1. Foreign VAT Service: VAT IT shall pay the Company the full amount of the Refund/s received from the Authority and/or a third party less the relevant fee/s and charges due to VAT IT as set out in this Agreement. Such payment will be made to the Company within 60 (sixty) days of VAT IT identifying and assigning the Refund/s to the Company. In the event that the Company is legally obligated to receive the Refund/s directly, the Company undertakes to notify VAT IT within 10 (ten) days of receipt of the Refund/s, whereafter, VAT IT shall invoice the Company for its fee/s and charges as set out in this Agreement. Invoices shall be paid by the Company within 30 (thirty) days from the date of the invoice, failing which VAT IT shall be entitled to charge the Company interest on the overdue amount.
3.2. Domestic VAT Service: VAT IT undertakes to provide the Company with a Claim Schedule, and thereafter invoice the Company in accordance with the fee/s and charges due to VAT IT as set out in this Agreement. Invoices shall be paid by the Company within 30 (thirty) days from the date of the invoice, failing which VAT IT shall be entitled to charge the Company interest on the overdue amount. Due to the nature of the Domestic VAT Service, the Company’s payment of VAT IT’s invoice is not dependant on receipt of a refund from the Authority.
3.3. In addition to the fee/s set out in Schedule A to this Agreement, VAT IT will also be entitled to deduct and/or invoice any disbursements, bank or handling charges, currency charges, costs incurred by VAT IT in the extraction of Invoices from the Company’s expense management system and third-party services/fiscal representation fees incurred by VAT IT when providing the Services (“Disbursements”). In the event that VAT IT is required to file a nil return with the Authority on behalf of the Company, VAT IT shall be entitled to deduct and/or invoice any Disbursements incurred in the filling of such nil return.
3.4. Solely in respect of claims into Australia and New Zealand, VAT IT may assist the Company with the requisite foreign VAT registration required in order to reclaim VAT and/or tax arising from international business expenses, and/or any other VAT and/or tax refunds available to the Company for expenses incurred in the aforementioned jurisdiction/s. VAT IT will be entitled to deduct and/or invoice (such invoice being payable by the Company within 30 (thirty) days from the date of the invoice, failing which VAT IT shall be entitled to charge the Company interest on the overdue amount) an additional 1000 AUD and/or NZD respectively to facilitate the registration required for claims into the aforementioned jurisdictions.
3.5. Customised Retrieval Set Up Service (where applicable):
– Customised Digital Integration: VAT IT shall set up a customised integration specific to the Company, which is required whereby all of the fields necessary for the performance of the Services are present in the expense data, but require specific extraction methods to ensure the proper performance of the Services; or
– Customised Manual Solution: VAT IT shall set up a customised manual solution specific to the Company, which is required whereby the fields necessary for the performance of the Services are not present in the expense data, and VAT IT is required to develop a Company specific rules engine to ensure the proper performance of the Services,
whereafter, the Digital/ Remote Service shall be applied.
VAT IT will be entitled to deduct and/or invoice (such invoice being payable by the Company within 30 (thirty) days from the date of the invoice, failing which VAT IT shall be entitled to charge the Company interest on the overdue amount) an ad-hoc set-up fee to facilitate the set-up of a Customised Digital Integration or a Customised Manual Solution. Any such fee due by the Company will be communicated by VAT IT prior to commencing with a Customised Digital Integration or a Customised Manual Solution.
3.6. Failure by the Company to raise any concerns regarding any Refund/s, invoiced amount/s and/or Claim Schedule/s within 14 (fourteen) days of receipt thereof will be deemed to be a waiver of any claims and/or disputes by the Company in relation to the Refund/s, invoiced amount/s and/or Claim Schedule/s in question.
3.7. If the Company elects to perform any part of the Services on its own behalf and/or through any third party in relation to Invoices contained in a claim and/or Claim Schedule in which VAT IT has commenced the provision of the Services, VAT IT is entitled to charge the Company the relevant fee/s and charges as set out in this Agreement in respect of any Refund received for such Invoices and/or VAT and/or tax amount as set out on a Claim Schedule.
3.8. If the Company fails to provide VAT IT with any documentation and/or information required to perform the Services within the time frames set out by the Authority and/or VAT IT, and/or where the Company withdraws claims/Invoices for whatever reason, VAT IT reserves the right to charge the Company the relevant fee/s and charges as set out in this Agreement.
3.9. In circumstances where the Company provides VAT IT with documentation and/or information required to perform the Services, but fails to meet the deadline imposed on the Company in clause 8.2 below, VAT IT shall endeavour to use reasonable and commercial efforts to provide the Services to the Company, however, in these circumstances VAT IT shall not be liable to the Company for its inability to provide the Services and/or any damages suffered by the Company. Further, VAT IT shall be entitled to charge the Company an additional fee equivalent to the Value Added Services fee as set out in Schedule A to this Agreement.
3.10. In the event that the Company requires certain Invoices to be excluded from a Claim Schedule (“Excluded Invoices”), the Company undertakes to notify VAT IT thereof prior to VAT IT’s commencement of the Domestic VAT Service. Should the Company fail to notify VAT IT of such Excluded Invoices as aforesaid, VAT IT reserves the right to charge the Company the relevant fee/s and charges as set out in this Agreement in respect of the total amount as set out on the Claim Schedule (inclusive of the VAT and/or tax amount of the Excluded Invoices).
3.11. The Company shall immediately notify VAT IT of any registration, intent to register, deregistration and/or intent to deregister in a particular jurisdiction, failing which, VAT IT reserves the right to charge the Company the relevant fee/s and charges as set out in this Agreement in instances whereby VAT IT has commenced the provision of the Services, but is unable to complete the Services due to a failure by the Company to notify VAT IT of any of the aforementioned scenarios.
3.12. VAT IT will be entitled to all interest received from the Authority.
3.13. VAT IT reserves the right to review the fees on an annual basis.
3.14. Any payments due to VAT IT may be set off against any payments due to the Company by VAT IT.
4. TERMINATION
4.1. Either Party shall be entitled to terminate this Agreement by giving the other Party at least 90 (ninety) days’ prior written notice before the end of any Renewal Period (as defined in Schedule A to this Agreement). The Company is not permitted to terminate this Agreement during the Initial Period (as defined in Schedule A to this Agreement).
4.2. The Company undertakes to pay VAT IT its fee/s and charges as set out in this Agreement, which arise from:
– VAT IT providing the Foreign VAT Service, whereby: a claim is submitted by VAT IT to the Authority prior to the date of expiration or termination of this Agreement, which is subsequently refunded or partially refunded; and/or
– VAT IT providing the Domestic VAT Service, whereby: prior to the date of expiration or termination of this Agreement, VAT IT submits a Claim Schedule to the Company and VAT IT’s invoice relating thereto is only issued to the Company post the date of expiration or termination of this Agreement.
4.3. In the event that the Company terminates this Agreement, VAT IT shall be entitled to proceed with the submission of any Foreign VAT Service claims that have been prepared or are in the process of being prepared by VAT IT prior to the date of expiration or termination of this Agreement. VAT IT reserves the right to charge the Company the relevant fee/s and charges as set out in this Agreement for the Foreign VAT Service.
4.4. In the event that the Company terminates this Agreement, VAT IT shall be entitled to complete the Domestic VAT Service with regard to any Claim Schedule/s that have been prepared or are in the process of being prepared by VAT IT prior to the date of expiration or termination of this Agreement, and accordingly VAT IT reserves the right to charge the Company the relevant fee/s and charges as set out in this Agreement for the Domestic VAT Service.
5. GOVERNING LAW AND JURISDICTION
5.1. This Agreement and any disputes between the Parties will be governed by and construed in accordance with the laws of the country/ state in which VAT IT has been incorporated, excluding its conflict of laws principles.
5.2. The Parties irrevocably submit to the exclusive jurisdiction of the courts of the country/ state in which VAT IT has been incorporated.
6. INDEMNITY
6.1. VAT IT shall indemnify and hold harmless the Company on demand against any claims, liabilities, losses, costs, proceedings, damages or expenses arising out of or in connection with any breach by VAT IT of any of the provisions of this Agreement (“Damages”). The quantum of the Damages in any 12 (twelve) month period will be limited to the value of VAT IT’s fee/s charged within 12 (twelve) months prior to the incident giving rise to the Damages.
7. MODERN SLAVERY, ANTI-BRIBERY, ANTI-CORRUPTION, ANTI-MONEY LAUNDERING, COUNTER-TERRORIST FINANCING, FRAUD AND ANTI-FACILITATION OF TAX EVASION
7.1. Each Party (inclusive of its officers, directors, employees, representatives’ agents and sub-contractors for the purposes of this clause 7), undertakes to: a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, anti-money laundering, anti-facilitation of tax evasion, tax evasion, fraud, counter-terrorist financing, anti-slavery and human trafficking, including, but not limited to, the UK Bribery Act 2010, the U.S. Foreign Corrupt Practices Act of 1977, the UK Criminal Finances Act 2017 and the UK Modern Slavery Act 2015 (collectively, “Relevant Requirements”); b) have in place and enforce throughout the term of this Agreement policies and/or procedures to ensure proper compliance with the Relevant Requirements (“Relevant Policies”); and c) not engage in any activity, practice or conduct which would cause either Party to be in breach of the Relevant Requirements or the Relevant Policies.
7.2. Each Party warrants and represents as follows: a) it has not been convicted of any offence under the Relevant Requirements; b) It is not a government official or is owned or controlled, directly or indirectly, by any government or government official; or c) no government or government official has any direct or indirect legal or beneficial interest in any payments made under this Agreement.
7.3. Each Party shall notify the other Party immediately if at any time any of the warranties it gives in clause 7.2 above cease to be true and correct.
7.4. Breach of this clause 7 will be deemed a material breach of this Agreement entitling the aggrieved Party to terminate this Agreement with immediate effect upon written notice to the other Party. In the event of a breach of this clause 7 by the Company, VAT IT may withdraw and/or refrain from submitting any pending claims for the Company and shall not be liable for any damages suffered by the Company as a result thereof.
8. GENERAL
8.1. The success and timing of claims and/or the provision of Claim Schedules to the Company is dependent on the relevant, complete and accurate information being provided to VAT IT. As such, the Company shall not be entitled to any damages as a consequence of any delays, interferences or inaccuracies caused by the Company or any information and/or documentation that is not provided and/or not timeously provided to VAT IT by the Company, whether intentionally or not.
8.2. The Company is responsible for furnishing VAT IT with all documentation, information, Invoices and/or access to its expense management system, which may be necessary for the performance of the Services, within 90 (ninety) days of the applicable deadline imposed by the Authority, or such period as may be communicated to the Company by VAT IT from time to time. VAT IT shall not be held liable for any damages suffered by the Company as a result of its failure to furnish or timeously furnish VAT IT with any and/or all such documentation, information, Invoices and/or access to its expense management system.
8.3. VAT IT shall not be obligated to service the Company and/or process and/or submit claims to the Authority in the event that the Company’s VAT and/or tax value does not meet the minimum threshold imposed by VAT IT from time to time, at its sole discretion.
8.4. VAT IT shall endeavour to provide the Services with due skill and care. However, VAT IT cannot warrant or guarantee that the Services, in isolation or in totality, will result in partial or full Refund/s and/or the successful refund of the amounts set out on a Claim Schedule.
8.5. The findings, opinions and conclusions provided by VAT IT do not profess to be facts or guarantees. VAT IT shall not be held liable for any action, undertaking or omission by the Company on the basis of the findings, opinions and/or conclusions provided by VAT IT.
8.6. VAT IT may use subcontractors, agents and/or its affiliates to perform its obligations under this Agreement, provided that VAT IT’s use of subcontractors, agents and/or its affiliates will not release it from any liability or duty to fulfil its obligations under this Agreement.
8.7. The headings contained in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of this Agreement.
8.8. VAT IT shall have the right to use and/or display the Company’s logo and trade name on its website and/or for marketing and/or promotional purposes.
8.9. In the event that this Agreement is executed in English and any other language, the English version will prevail.
8.10. If any provision of this Agreement is found to be illegal, invalid or unenforceable in terms of any court order, legislation or other rule of law, such provision will be modified or deleted, but only to the extent necessary to make it valid, legal and enforceable. The remainder of this Agreement will remain in full force and effect.
8.11. VAT IT may assign its rights and obligations under this Agreement, and this Agreement will bind and inure to the benefit of any parent entity, subsidiary, affiliate or successor. The Company may not assign any of its rights and obligations under this Agreement without the express prior written consent of VAT IT, which will not be unreasonably withheld.
8.12. Waiver by either Party of a breach of any provision of this Agreement will not operate as or be construed to be a waiver of any other breach of such provision or any other provision of this Agreement. Failure by either Party to insist upon strict adherence to any term of this Agreement on one or more occasion will not be considered a waiver or deprive such Party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing.
8.13. In the event that either Party is unable to perform its obligations under the terms of this Agreement as a result of including but not limited to: acts of God, natural disasters, pandemic, epidemic, war (whether declared or not), acts of sabotage, boycotts, strikes, lockouts, system or computer failure, loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, or other causes beyond its reasonable control, such Party will not be liable to the other Party for any damages resulting therefrom.
8.14. Neither Party will be deemed to be the drafter of this Agreement, and this Agreement will not be strictly construed against either Party on this basis.
8.15. All notices required to be given in terms of this Agreement must be in writing and sent to the receiving Party’s address and/or email address specified in Schedule A. Such notices will be deemed to have been received by the receiving Party on the date of delivery if delivered by hand or email; and on the tenth day after posting, if mailed by prepaid registered post.
8.16. The provisions of this Agreement intended by their nature to survive the expiration or termination of this Agreement, shall remain in effect insofar as is necessary to give effect to such provisions.