CountDeFi General Terms & Conditions
1 Introduction and General
1.1 We are in the business of, amongst others, providing crypto tax reporting services.
1.2 You wish to appoint Us to provide the Services to You and We wish to provide such Services to you, on the terms in the Agreement.
1.3 Accordingly, the Parties agree as set out herein.
1.4 Terms used in these Ts & Cs are defined in 19.
2 Notice in terms of the Consumer Protection Act No 68 of 2008
2.1 If You do not understand any of the terms in these Ts&Cs, do not sign it and contact Us so that we can explain it to You.
2.2 Any wording in these Ts & Cs which is in red constitutes an assumption of risk by You, limits our risk, or indemnifies Us. Your attention is drawn to such wording, which You agree to by signing at the Signature Page.
3 The Services
3.1 You appoint Us to provide the Services to You from the Performance Date until the Termination Date, on the terms of the Agreement.
3.2 In the event that We commence the Services and We reasonably determine that You have selected the wrong Package for the services You require, We will notify You thereof and request that We upgrade Your Package accordingly. Should You fail or refuse to do so within five Business Days of notification, Our Services will be limited to that indicated in the Services Schedule. Should You accept the upgrade, an agreement will be issued to You for signature relating to the upgraded package and replacing this Agreement.
3.3 Any Amendment Request must be raised with Us within seven Business Days of receipt of the Crypto Tax Report (the “Revision Phase”), failing which, such report will be deemed to be accepted by You.
3.4 Should You raise any Amendment Request in the Revision Phase-
3.4.1 we may amend the Crypto Tax Report within a period of seven Business Days, but reserve the right, in Our sole and absolute discretion, not to make any amendments to the Crypto Tax Report, if We deem it to be correct. We agree not to refuse to amend any Crypto Tax Report unjustifiably or unreasonably;
3.4.2 the Completion Date will be deemed to be the date upon which We issue an amended Crypto Tax Report or notify You in writing that the Crypto Tax Report will not be amended.
3.5 On the Termination Date, the Agreement shall terminate, subject to 16.
4 Fees and Payment Mechanics
4.1 For the provision of the Services to You, We will charge You the fees indicated in the Payment Schedule. Half the total fees are due by way of deposit, billed on Signature Date (the “Deposit“), the other half is billed on Completion Date, subject to 4.2
4.2 Where the Services are to provide You with monthly or quarterly Crypto Reports, fees will be billed by way of a Deposit and a monthly or quarterly invoice amount, as the case may be, and as reflected in the Payment Schedule.
4.3 All fees are payable by way of –
4.3.1 credit card payment – in relation to which You confirm, authorise and agree to Us directly debiting Your credit card in accordance with the Payment Authority. You agree that we have full right of recovery against You for such payment and that You will not dispute this credit card charge; or
4.3.2 crypto payment – in relation to which we will not be held liable for any payment made to the incorrect crypto wallet. Should you request to pay with crypto, we will provide you with our wallet address. Make doubly sure You have recorded our wallet address correctly before making payment. We will not provide any Services without a crypto payment being into our crypto wallet, nor will we be held responsible for payment into an incorrect wallet
4.4 We use CountDeFi USA, a company within our Group Company, registered in the United States of America as a card processing agent.
5 Your Responsibilities
5.1 You are responsible for providing Us with Us accurate, up to date, complete and correct information regarding You, Your affairs, Your crypto assets and crypto wallets (collectively, “Correct Info“). Any failure by You to do so may impact the accuracy of Our Services and the correctness and / or completeness of any Crypto Tax Report issued to You. We will not be liable for Your failure to provide Correct Info and Our liability in terms of the Agreement is limited as set out in 8.
5.2 You are responsible for providing Us with all Correct Info within ten Business Days of the Signature Date.
5.3 To the extent that We require further information from You to provide the Services, We will request this from You and You will have five Business Days to revert with the requested information, noting that Our performance of the Services can only commence or continue once We have received all requested information and any delay on Your part may affect the Performance Date and the Completion Date.
5.4 Your failure to act in accordance with this 5, will be a breach of the Agreement and may result in Us terminating the Agreement in accordance with 13 and You forfeiting your Deposit.
6 Our Responsibilities and Limitations
6.1 We are responsible for providing the Services with the care, diligence and competence required by a reasonable crypto tax reporting services provider in the circumstances.
6.2 We are not a tax practitioner, tax advisor or any other form of tax services provider. We are not licensed to, nor do We undertake to, provide any tax advice or tax filing services to You. We are not a financial services provider, nor are We licensed to or undertake to provide any financial services or advice.
7 Change in Laws and Circumstances
7.1 Applicable laws are subject to change, especially in relation to tax laws, which are regularly updated, and even more so in relation to crypto and crypto laws, which are newer areas of law. In addition, Your personal circumstances and information relating to Your affairs, especially Your crypto assets, are subject to change.
7.2 The Services and provision of any Crypto Tax Report is based on the information You provide Us and the Applicable Laws as at the Performance Date. We are not required to take into account any change in Applicable Law nor any change in circumstances after the Completion Date and are not liable for any Losses resulting from any such changes.
8 Indemnity and Limitation of Liability
8.1 Notwithstanding any other provision of the Agreement, We, any Group Company, Our officers, directors, employees, Group Company employees, consultants, associates and agents (“the Relevant Parties” and each a “Relevant Party”) shall not be liable for any Losses You may suffer arising in connection with the Services and the content of any Crypto Report, save in respect of the wilful misconduct, fraud, bad faith or gross negligence of any Relevant Party.
8.2 It is specifically recorded, for the avoidance of doubt, that subject to 8.1, no Relevant Party is liable, in relation to the provision of the Services and any Crypto Tax Report, for any –
8.2.1 tax levied against You by any Appliable Authority;
8.2.2 penalty or fine for the late filing of any tax return;
8.2.3 tax, penalty or fine for any unpaid tax or withholding;
8.2.4 overpayment of tax; or
8.2.5 other determination made by an Relevant Authority in relation to Your tax or any other liability.
8.3 Subject to 8.1, You indemnify and hold each Relevant Party harmless against any and all Losses incurred by reason of the performance of such Relevant Party’s obligations or duties under or pursuant to this Agreement, provided however that such Relevant Party shall not be so indemnified with respect to any matter resulting from its wilful misconduct, fraud, bad faith or gross negligence with respect to such obligations and duties. The provisions of this 8.3 constitute a stipulation for the benefit of any Relevant Party, which are capable of acceptance by such party at any time.
9 Proprietary Information
All the Intellectual Property rights relating to the provision of the Services, as designed or licensed by Us and all records, reports, documents, data, drawings, plans and electronic or other information prepared or used in the provision of the Services (collectively, “IP Rights“), shall vest solely in Us. You are not granted any right or license to the IP Rights in terms of the Agreement or the relationship between the Parties except for the right to use any crypto tax report for crypto tax reporting purposes.
10 Personal Data
In providing the Services We will process data which relates to You (“Personal Data“). How and why We process Your Personal Data, the terms on which We process Your Personal Data and who We may disclose Your data to and Your rights are fully described in the privacy notice (“Privacy Notice“).
11.1.1 where an Applicable Law or Applicable Authority requires Us to do so;
11.1.2 we have obtained Your written consent;
11.1.3 to Our employees, employees of any Group Company, representatives and professional advisors, to the extent strictly necessary for the purpose of performing in terms of this Agreement, obtaining professional advice or conducting Our business, it being specifically agreed that any disclosure or use of Confidential Information by any such employee, Group Company employee, representative or advisor for any purpose other than as indicated in this Agreement or the Privacy Notice shall constitute a breach of this 10.
11.2 This 11 does not apply to information that is publicly available, received from a third party not in breach of a duty of confidentiality or independently developed or known by Us.
12 Know Your Client
To the extent applicable, You shall upon Our request supply, or procure the supply of documentation and other evidence as is reasonably requested by Us in order for Us to carry out and be satisfied that We have complied with all necessary “know your client” or other similar checks under all Applicable Laws or in terms of our internal processes and procedures.
Should any Party commit a breach of any provision of this Agreement and fail to remedy such breach within 7 Business Days after receiving written notice from the other requiring them to remedy the breach, then the aggrieved party shall be entitled, without prejudice to the aggrieved party’s other rights in law, including the right to claim damages, to cancel the Agreement or to claim immediate specific performance of all of the defaulting Party’s obligations.
14.1 Save as expressly otherwise provided in these Ts&Cs, any dispute arising out of or in connection with the Agreement, including any dispute as to its existence, validity, enforceability or termination, shall be finally resolved by way of arbitration in accordance with the applicable rules of the Arbitration Foundation of Southern Africa (or its successor in title) (“AFSA“), as determined by AFSA, provided that the rules for expedited arbitrations shall not apply unless the parties to the dispute agree otherwise in writing. The dispute shall be resolved by one arbitrator. If AFSA determines that the AFSA Commercial Rules are applicable, there shall be no right of appeal as provided for in article 22 of such rules.
14.2 The seat of the arbitration shall be Cape Town, South Africa, and will be held in private. The language used in the arbitral proceedings shall be English.
14.3 Notwithstanding anything to the contrary contained in the Agreement, any party to the dispute shall be entitled to obtain interim relief on an urgent basis from any competent court having jurisdiction.
14.4 THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT THAT THEY OR EACH MAY HAVE TO A TRIAL BY JURY FOR ANY CLAIM OR CAUSE OF ACTION OR IN ANY LEGAL PROCEEDINGS, DIRECTLY OR INDIRECTLY ARISING FROM OR RELATED TO THE AGREEMENT OR THE SERVICES.
15 Address for Legal Processes and Notices
15.1 The Parties choose their address (“Address”) for all purposes relating to the Agreement, including the giving of any notice, the payment of any sum, the serving of any process, as follows –
15.2 Either Party shall be entitled from time to time, by giving written notice to the other, to vary its Address to any other physical address (not being a post office box or poste restante) and to vary its email Address to any other email address.
15.3 Any notice given by either Party to the other (“Addressee“) which is delivered by hand between the hours of 09:00 and 17:00 on any Business Day to the Addressee’s physical Address for the time being shall be deemed to have been received by the Addressee at the time of delivery.
15.4 Any notice given by either Party to the other which is successfully transmitted by email the Addressee’s email Address for the time being (“Transmitted“) shall, if the notice is Transmitted –
15.4.1 by no later than 17:00 on a Business Day, be deemed (unless the contrary is proved) to have been received by the Addressee on that day;
15.4.2 after 17:00 on a Business Day or is Transmitted on a day which is not a Business Day, be deemed (unless the contrary is proved) to have been received by the Addressee on the next day which is a Business Day.
15.5 This 15 shall not operate so as to invalidate the giving or receipt of any written notice which is actually received by the Addressee other than by a method referred to in this u.
15.6 Any notice in terms of or in connection with this Agreement shall be valid and effective only if in writing and if received or deemed to be received by the Addressee.
16 Survival of Provisions
The following clauses are severable from the other provisions of the Agreement and shall remain in full force and effect notwithstanding any termination, cancellation, invalidity, unenforceability or unlawfulness of this Agreement, or any part thereof: 7 to 11 (inclusive) 13 to 15 (inclusive), 17 to 19 (inclusive).
17.1 The Agreement constitutes the sole record of the agreement between the Parties in relation to the subject matter hereof. Neither Party shall be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded herein. This Agreement supersedes and replaces all prior commitments, undertakings or representations, whether oral or written, between the Parties in respect of the subject matter hereof.
17.2 No addition to, variation, novation or agreed cancellation of any provision of this Agreement shall be binding upon the Parties unless reduced to writing and signed by or on behalf of the Parties.
17.3 No waiver, indulgence or extension of time which either Party (“Grantor“) may grant to the other, nor any delay or failure by the Grantor to enforce, whether completely or partially, any of its rights, shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the Grantor in terms hereof, save in the event and to the extent that the Grantor has signed a written document expressly waiving or limiting such right.
17.4 Save as expressly provided in this Agreement, You are not entitled to cede, delegate, encumber, assign or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, this Agreement to any third party without Our prior written consent. We are entitled to cede, delegate, encumber, assign or otherwise transfer any of its rights and/or obligations in terms of, and/or interest in, this Agreement to any third party without Your consent.
17.5 Unless otherwise required by law, the Agreement and any document or other writing which is required to be signed in terms of this Agreement may be signed by way of an electronic signature.
17.6 Unless otherwise expressly stipulated in this Agreement, each Party to this Agreement contracts as a principal and not as an agent for any other person, disclosed or undisclosed.
17.7 Without prejudice to any other provision of this Agreement, any successor-in-title, including any executor, heir, liquidator, business rescue practitioner, curator or trustee, of either Party shall be bound by this Agreement.
17.8 Unless otherwise required by law, any document or other writing which is required to be signed in terms of this Agreement may be signed by way of an electronic signature as contemplated in the Electronic Communications and Transactions Act No 25 of 2002.
18 Governing Law
The Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the laws of South Africa.
In these Ts & Cs clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention, –
19.1 a word or an expression which denotes –
19.1.1 any gender includes the other genders;
19.1.2 a natural person includes an artificial or juristic person and vice versa (each a “Person“);
19.1.3 the singular includes the plural and vice versa;
19.2 the following words and expressions shall bear the meanings assigned to them below and cognate words and expressions bear corresponding meanings –
19.2.1 “Agreement” – collectively, the accompanying covering note (“Covering Note“) and the documents provided therewith, namely –
19.2.2 the specific terms and conditions of the Agreement, being –
220.127.116.11 Part A – a service summary which sets out the services We will provide to You and whether such Services relating to the issuance of a single Crypto Report, alternatively, monthly or quarterly reports (the “Services“) (collectively, the “Services Summary“);
18.104.22.168 Part B – a payment schedule which sets out the cost of the Services and how much You will be billed upon Signature Date and on Completion Date, alternatively, on a monthly or quarterly basis (collectively, the “Payment Schedule“);
22.214.171.124 Part C – a payment authority whereby You confirm that by providing Your credit card details You authorise Our payment services provider to debit Your credit card in accordance with the amounts and at the times indicated in the Payment Schedule (collectively, the “Payment Authority“);
126.96.36.199 Part D – the general terms and conditions of the Agreement, being these Ts & Cs;
188.8.131.52 Part E – summary of the Agreement and signatures (collectively, the “Signature Page“);
184.108.40.206 Part G – summary of certain terms of the Agreement and Parties’ signatures (collectively, the “Signature Page“); and
220.127.116.11 Part H – an audit trail which sets out the steps taken by each Party in relation to the creation, receipt, viewing and signature,
and for the avoidance of doubt any reference to the “Agreement” should be construed to includes these Ts & Cs;
19.2.3 “Amendment Request” – any request to amend a Crypto Tax Report received within seven Business Days of the issuing of such report;
19.2.4 “Applicable Laws” – in relation to any Person, includes all State, Federal, national or provincial – statutes, subordinate legislation, common law, regulations, ordinances, by-laws, directives, codes of practice, circulars, guidance or practice notices, judgments, decisions, standards and similar provisions –
18.104.22.168 which are prescribed, adopted, made, published or enforced by any Relevant Authority; and
22.214.171.124 which have (or did have or will have, at the relevant time referred to in an Agreement) effect in relation to or be relevant or applicable to that Person;
19.2.5 “Business Day” – any day which is not a Saturday, a Sunday or an official public holiday in South Africa;
19.2.6 “CountDeFi USA” – CountDeFi, a Group Company domiciled in Delaware in the United States of America;
19.2.7 “Completion Date” – the date upon which You confirm the contents of the Crypto Tax Report, alternatively, seven Business Days after the Crypto Tax Report has been provided to You, subject to 3.4.2 in the event We receive an Amendment Request from You;
19.2.8 “Crypto Tax Report” – the report provided to You by way of Our performance of the Services, on the terms and to the extent indicated in the Services Summary;
19.2.9 “Group Company” – C Herbst Consulting Proprietary Limited trading as CountDeFi and all of its direct and indirect subsidiaries from time to time;
19.2.10 “Intellectual Property” – any intellectual property rights of any nature, including all corporate identification, trademarks (whether registered or unregistered), trade names, brand names, logos, any mark, emblems, copyright, patents, inventions, know-how, improvements, process, get-up, code, data, programmes, software, technical information or expertise;
19.2.11 “Loss” – any liability, loss, cost (including legal costs on an attorney and own client scale), expense, penalty, fee or damages (whether direct, indirect, consequential or of any other nature) and “Losses” shall be construed accordingly;
19.2.12 “Package” – the specific crypto tax reporting package selected by You and indicated in the Services Summary;
19.2.13 “Performance Date” – the date upon which all data required to provide the Services is provided by You or on Your behalf, as confirmed in writing by Us;
19.2.14 “Parties” – collectively, Us and You and “Party” shall mean either of them, as the context may require;
19.2.15 “Us” or “We” or “Our” – C Herbst Consulting Proprietary Limited trading as CountDeFi, a private company with limited liability, duly incorporated in South Africa;
19.2.16 “Relevant Authority” – any competent court or regulatory or other authority, or any Federal, State, local, provincial or national governmental authority, body or department or any inter-governmental or supra-national organisation or any self-regulatory authority, body or organisation. For the avoidance of doubt, the terms includes reference to any tax authority in any country;
19.2.17 “Signature Date” – when the Agreement has been signed by both Parties (whether or not in counterpart), the latest of the dates on which these Ts & Cs (or a counterpart) was signed by a Party;
19.2.18 “South Africa” – the Republic of South Africa;
19.2.19 “Termination Date” – the date on which all Crypto Reports in relation to the Services have been issued and the Completion Date has occurred in relation to each such report (i.e. all the Crypto Tax Reports purchased, whether it be single, on a quarterly or on a monthly basis, have been settled);
19.2.20 “You” – the party to whom We are providing the Services to as indicated in the Covering Note and on the Signature Page;
19.3 any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;
19.4 if any provision in a definition is a substantive provision conferring a right or imposing an obligation on either Party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of these Ts & Cs;
19.5 where any term is defined within a particular clause other than this 19, that term shall bear the meaning ascribed to it in that clause wherever it is used in these Ts & Cs;
19.6 where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day;
19.7 any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, calendar months or calendar years, respectively;
19.8 any term which refers to a Delaware legal concept or process (for example, without limiting the foregoing, winding-up or curatorship) shall be deemed to include a reference to the equivalent or analogous concept or process in any other jurisdiction in which this Agreement may apply or to the laws of which a Party may be or become subject;
19.9 the expiry, termination or cancellation of the Agreement shall not affect those provisions of the Agreement which expressly provide that they will operate after any such expiry, termination or cancellation or which of necessity must continue to have effect after such expiry, termination or cancellation, notwithstanding that such provisions do not expressly provide for this; and
19.10 the use of the word “including“, “includes” or “include” followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it.
The terms of the Agreement having been negotiated, any rule of interpretation which prescribes that, in the event of ambiguity, a contract should be interpreted against the party responsible for its drafting, shall not be applied in the interpretation of the Agreement.
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