Moonstone Self-Comply - Signup

1. PREAMBLE
   1. Whereas the financial services provider (hereinafter referred To As "The Client") wishes To engage Moonstone Compliance (Pty) Ltd. (hereinafter referred To As "Moonstone"), a company incorporated In South Africa With its registered address at: 25 Quantum Street, Techno Park, Stellenbosch, to deliver a support service designed to assist the Client with the establishment of a compliance function within the Client's business, in order to comply with the requirements of the Financial Advisory and Intermediary Services Act (FAIS), subject to clause 2.2 below the Financial Intelligence Centre Act (FICA) and relevant subordinate legislation (hereinafter referred to as "the legislation").
   2. Whereas the Client is:
      1. A financial services provider that do not require to appoint a Compliance Officer as provided for in section 17 of the FAIS Act;
      2. An accountable institution in terms of schedule 1 of FICA; and/or
      3. A registered credit provider in terms of the NCA.
   3. Whereas the Client acknowledges that Moonstone Is Not appointed As the Client's Compliance Officer and that the Client will at all times remain solely responsible to comply with the requirements of the legislation.
   4. This agreement shall supersede And prevail over all other agreements whether oral Or In writing As To the subject matter hereof.
2. SERVICES TO BE PROVIDED BY MOONSTONE
   

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   1. Moonstone shall provide the services As Set out In Schedule 1 hereto (hereinafter referred To As "the Compliance Services").
   2. Moonstone shall not act or form part as the Client's compliance function in terms section 42A(2) of FICA.
   3. The Compliance Services delivered by Moonstone in terms of this agreement do not replace the duties and obligations of a Compliance Officer.
3. MOONSTONE 'S OBLIGATIONS
   

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   1. Moonstone represents and warrants that it shall provide the Compliance Services contracted under this agreement with the necessary skill, expertise, and professionalism.
   2. Moonstone guarantees that it has the necessary operational ability in order to provide the Compliance Services to the Client.
   3. The accountability, duty and responsibility to comply with the legislation shall at all times remain with the Client and neither Moonstone nor its employees or consultants shall be liable for any act or omission performed by the Client. Notwithstanding anything to the contrary contained in clause 3.2, Moonstone agrees that it shall at all times remain liable to perform its obligations as contained in this agreement.
   4. Moonstone shall not take any steps, nor perform any acts which are or may be detrimental to the reputation of the Client. In the event that Moonstone is required by law to perform any acts which may be detrimental to the Client's reputation, Moonstone shall, subject to such law, provide the Client with at least 5 (five) working days prior written notice where practically possible of such legal requirements and its obligations to carry out such acts.
   5. Confidential Information means any technical, security, commercial, financial, scientific, marketing or business information, including without limitation, the trade secrets, operating margins, know-how, ideas, plans, diagrams, drawings, presentations, designs and processes, pricing, products, business plans and strategies, financial results, software systems, client data, customer lists, customer details and/or personal information, intellectual property (whether registered or not), and the like belonging to the Client or Moonstone, whether or not such information was disclosed before or after the Commencement Date of this agreement. Moonstone undertakes not to divulge to any third party, other than as and only to the extent required so by law (in which case it undertakes to notify the Client timeously of its obligation to make such disclosure), any Confidential Information obtained from the Client without obtaining prior written consent from the Client, while this agreement is in force or at any time thereafter, and shall only utilise such information as and to the extent required by law or as is necessary for the performance of its obligations as set out in this agreement. Moonstone further undertakes to use its reasonable endeavours to ensure the protection of such Confidential Information to the greatest extent possible in the circumstances.
   6. Moonstone warrants that it has full power and authority to enter into and to perform in terms of this agreement and to provide the Compliance Services in terms of the legislation. Moonstone further warrants that in the event that Moonstone provides the Client with any software, Moonstone has obtained the necessary licences, consents, authority and permissions to grant the Client the right to use the software, and that the Client's use of the software shall in no way infringe any patent, design, copyright, trade secret or other proprietary right of any third party. Moonstone hereby holds the Client harmless and indemnifies the Client in its entirety from any claims, damages and/or losses, of whatsoever nature, suffered by the Client whether directly or indirectly as a result of Moonstone's failure to comply with the terms of this clause.
   7. Moonstone will, at the request of the Client and only if deemed to be necessary by Moonstone, provide the client with access to information pertaining to Moonstone’s business, limited to the Compliance Services.
   8. Moonstone confirms that it does not outsource the Compliance Services (or any parts thereof) to a third party.
   9. Moonstone will provide the client with sufficient access to data related to the Compliance Services, including any data related to the clients of the Client (if applicable).
4. CLIENT 'S OBLIGATIONS
   

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   1. The Client shall Not wilfully perform Or omit To perform any act which may bring Moonstone into disrepute.
   2. The Client shall Not disclose its login credentials nor distribute Or share any information, documentation Or templates provided As part Of the Compliance Services With any person that Is Not a party To this agreement.
5. INTELLECTUAL Property
   

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   1. Each party acknowledges that the intellectual property and any documentation, business methods, systems, application software, know-how and knowledge of each party exchanged between the two in the course of this agreement is of a strictly confidential nature, being the sole property of the disclosing party ("the owner party")
   2. In this regard, each party undertakes that it will not at any time without the prior written consent of the owner party, whether before or at any time after the termination of this agreement, divulge or use, either directly or indirectly, for its own benefit (other than as permitted by this agreement) or that of any other person or entity, any of such information, documentation, business methods, systems, application software, know-how or knowledge exchanged between the parties, and shall only implement such information as is necessary in order to carry on its functions and responsibilities in accordance with the terms of this agreement and the legislation, for the duration of this agreement.
   3. At the termination of this agreement, at the election of the owner party, the other party shall either return to the owner party any documentation or other materials provided to it by the owner party or confirm destruction of the same in a written statement signed by the other party, save for any copies that the owner party elects the other party to retain and/or is otherwise required by legislation to be retained by the owner party.
   4. Each party agrees that the confidentiality obligations contained in this agreement shall still apply to such documentation, business methods, systems, application software, know-how, knowledge and other information after termination of this agreement.
6. OWNERSHIP Of CLIENT DATA
   

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   1. The Compliance Services provided by Moonstone will produce data and other information to be collected, processed and recorded by Moonstone in accordance with the requirements of the legislation ("Client Data").
   2. Notwithstanding anything to the contrary contained herein, all Client Data collected, processed and recorded by Moonstone in the course of the provision of Compliance Services will, subject to the relevant provisions of the legislation, remain the sole property of the Client, and accordingly Moonstone undertakes that it will not at any time without the prior written consent of the Client, whether before or at any time after termination of this agreement, divulge or use, either directly or indirectly, for its own benefit or that of any other person, or entity, any such information, documentation, business methods, systems or knowledge relating to the Client Data which may be communicated to or otherwise acquired by Moonstone or its employees.
   3. Moonstone or its employees shall only use, implement or process such Client Data as is necessary in order to perform its obligations in accordance with the terms of this agreement and to the extent necessary for the purposes of the provision of the Compliance Services and the proper performance of its obligations under this agreement and the legislation.
   4. Moonstone shall at all times comply with the provisions of the Protection of Personal Information Act, and shall put in place, and at all times maintain, appropriate physical and technological measures to ensure the security and confidentiality of Client Data.
   5. Unless so required by law, Moonstone agrees that it shall not disclose any personal information, as defined in the Protection of Personal Information Act, to any third party without the prior written consent of the Client, and notwithstanding anything to the contrary herein contained, Moonstone shall in no manner whatsoever transfer any personal information out of the Republic of South Africa.
   6. By accepting this terms and conditions, the Client expressly provides it consent to Moonstone, that Moonstone may use its Client Data to compile industry compliance reports, provided that all Confidential Information and Personal Information specific to the Client will be anonymised. These industry compliance reports may be used and published by Moonstone in the public domain, in order to show and/or track compliance trends within a specific sector of the financial and credit services industry.
   7. At the termination of this agreement, at the election of the Client, Moonstone shall either return to the Client any documentation, including, but not limited to all Confidential Information, or other materials provided to it by the Client (including but not limited to "Client Data") or else confirm destruction of the same in a written statement signed by Moonstone, save for any copies that Moonstone is required to retain in order to comply with any legal obligations. Moonstone agrees that the confidentiality obligations contained in this agreement shall still apply to such documentation or other information after termination of this agreement.
7. PAYMENT Of FEES
   

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   1. As remuneration For the Compliance Services rendered by Moonstone To the Client, Moonstone shall be entitled To a monthly service fee (hereinafter referred To As "the Service Fee"), As Set out In Schedule 2 hereto.
   2. The Client shall pay the agreed Service Fee On the 1St Or such other day Of the month And In such manner As agreed between the parties In writing from time To time. The Client will pay the Service Fee into Moonstone's bank account as nominated by Moonstone and by way of Debit Order or Electronic Funds Transfer as agreed to between the parties in writing. Service Fees will always be in respect of Compliance Services to be rendered for the month or period ahead, unless specifically agreed to in writing otherwise.
   3. In the Event Of a debit order being returned unpaid, Moonstone reserves the right To collect the outstanding fee As soon As sufficient funds are available In the Client's account.
   4. Moonstone shall be entitled To adjust the Service Fees referred To In Schedule 2 On an annual basis, provided that such adjustment Is communicated To the Client On at least 1 (one) calendar month's prior written notice. In the event that the Client does not agree to the annual increase as referred to in this clause, the Client may terminate this agreement on 1 (one) calendar month's written notice to Moonstone of its intention to terminate, in which event no such annual increase shall apply during the notice period referred to herein. Fee adjustments (if any) will be implemented on the 1st day of July each year.
   5. Additional services such As profile changes, assistance With the completion Of overdue compliance reports And the printing Of documents Do Not form part Of the Compliance Services And will be invoiced On a separate ad hoc basis.
   6. Notwithstanding anything To the contrary herein contained, Moonstone agrees that it will Not be entitled To charge the Client For any additional services Or any additional costs (For the avoidance Of doubt additional services shall be deemed To be any services Not contained In Schedule 1 And additional costs shall be deemed To be any costs Not contained In Schedule 2) without obtaining the Client's prior written consent to perform such additional services or incur such additional costs. In the event that Moonstone fails to obtain the Client's consent to perform such additional services or to incur such additional costs the Client shall not be liable to Moonstone for the payment of such additional costs.
   7. The Client shall Not withhold, defer Or make any deduction from any payment due To Moonstone, irrespective Of whether Or Not Moonstone Is indebted To the Client.
   8. The Client shall be liable For interest On all undisputed, overdue amounts payable by the Client under this agreement at the prevailing prime interest rate from the due dates For such amounts until they are paid.
   9. If Moonstone institutes any legal proceedings against the Client To enforce any Of its rights under this agreement, it shall be entitled To recover from the Client all the legal costs As awarded by a court Of competent jurisdiction.
8. DURATION And TERMINATION
   

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   1. Notwithstanding Date Of signature hereof, this agreement shall commence On the Commencement Date.
   2. Subject To clauses 8.3, below, the parties agree that this agreement shall endure For a period Of 3 (three) months from the Commencement Date (the "Initial Period"), where after this agreement shall Continue On a month To month basis. The parties therefore agree that after the conclusion Of the Initial Period either party may terminate this agreement by giving the other party 1 (one) calendar month's written notice of its intention to terminate the agreement. The parties further agree that any termination of this agreement shall be subject to the relevant requirements of the legislation.
   3. Notwithstanding anything To the contrary contained herein the wronged party shall have the right To terminate this agreement With immediate effect by giving notice In writing To that effect To the other, In any Of the following events
      1. If either party commits a material breach Of any Of the provisions Of this agreement And fails To rectify such breach within 14 (fourteen) days after having been notified In writing To Do so;
      2. If the Client commits a material breach Of the legislation And fails To rectify such breach within 7 (seven) days after being notified In writing To Do so;
      3. If either party has given the other any False Or misleading information Or has made any misrepresentation In connection With this agreement Or If either party does so at any time during the continuance Of this agreement In connection With any matter dealt With In this agreement;
      4. If either party Is convicted Of any criminal offence involving dishonesty Or fraud, Or Is found To be In breach Of a fiduciary duty;
      5. If the estate Of either party Is sequestrated, Or placed under liquidation Or judicial management, Or If either party enters into any arrangement Or composition With its creditors In relation To the payment Of its debts, Or ceases To carry On its business As a going concern.
9. CONSEQUENCES Of TERMINATION
   

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   1. Upon termination Of this agreement For any reason, the Client shall
      1. immediately pay To Moonstone all amounts due, owing And payable by the Client In terms Of this agreement;
      2. Not thereafter, hold itself out In any way As a Client Or member Of Moonstone Or being associated In any way With Moonstone;
      3. insofar As the Client has incorporated any documentation, system Or process provided by Moonstone into its business procedures, Continue To respect And observe Moonstone proprietary rights In respect Of same And Not perform any act whereby the Client offers For remuneration Or otherwise any Of Moonstone's intellectual property to any other person for use or for any reason whatsoever;
      4. confirm To Moonstone that any application software provided by Or On behalf Of Moonstone has been permanently removed from the Client's computer systems.
   2. The termination Of this agreement shall be without prejudice To the rights Of the parties And any provision Of this agreement that relates To Or governs the acts Of the parties hereto subsequent To such termination shall remain In full force And effect And shall be enforceable notwithstanding such termination.
   3. Upon termination Of this agreement For any reason, Moonstone shall With immediate effect bear no further responsibilities In respect Of the Client In terms Of any legislation.
10. DISPUTE RESOLUTION
    

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    1. Any dispute which may arise at any time between the parties relating to any matter arising out of this agreement or the interpretation thereof, (other than where an Interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa ("AFSA") by an arbitrator appointed by AFSA. Either party may demand by written notice to the other, that a dispute be referred to arbitration. The arbitration shall be held at Cape Town in accordance with AFSA's rules, and the parties irrevocably agree that the decision in the arbitration proceedings shall be final and binding upon them; that it shall be carried into effect and that it may be made an order of any court of competent jurisdiction.
    2. The provisions of this clause are severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for any reason.
11. MISCELLANEOUS TERMS
    

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    1. This document embodies the entire agreement between the parties relating To the matters dealt With herein And no representation, warranty Or undertaking was made except As incorporated herein.
    2. None Of the terms And conditions Of this agreement are capable Of being waived, amended, Or deleted, unless such waiver, amendment, Or deletion Is reduced To writing And signed by the parties hereto.
    3. No indulgence On the part Of any party In exercising any right conferred upon such party In terms Of this agreement shall constitute a waiver Or novation Of any such right.
    4. Any liability Of the Client will Continue To exist And survive any conversion Of the Client's business type, for example from a Close Corporation to a Company.
    5. Save As specifically provided For In this agreement, neither party may represent itself As being an agent, a partner, an employee Or a representative Of the other party And shall Not hold itself out As such. In addition, neither party shall hold itself out As having any power Of authority To incur any obligation Of any nature, whether express Or implied, On behalf Of the other party And Nothing In this agreement shall operate Or be construed As conferring any such authority upon either party.
    6. Unless otherwise agreed To In writing between the parties, no party shall For the duration Of this agreement And For a period Of 12 (twelve) months after expiry Or termination thereof For its own benefit Or As a representative Of, Or agent For any third party, persuade, induce, encourage, procure Or solicit (Or procure such persuasion, inducement, encouragement, procurement Or solicitation Of) the personnel Of the other party To become employed, Or interested, directly Or indirectly In any manner whatsoever, by it Or In any business which Is In competition With the business carried On by the other party, Or To disclose any Intellectual Property Of the other party To any person Not authorised by the owner Of the Intellectual Property To receive it. The parties also agree Not To use either party's personnel as consultants, either independently or via a third party for the same period.
    7. A breach Of clause 11.6 will render the breaching party liable To pay damages In an amount equal To six (6) month's salary of the relevant member of personnel, provided that such damages shall be calculated in respect of the six (6) month period prior to such member of personnel leaving the employ of the non-breaching party. The parties further agree that the aforementioned damages are fair, based on the damage the non-breaching party is likely to suffer, and considering the difficulty in calculating the actual damages.
    8. This agreement shall be governed by And construed In accordance With South African law.
    9. All parties To this agreement irrevocably submit For all purposes In connection With this agreement To the exclusive jurisdiction Of the courts Of South Africa.

Notice Of Material Terms & Conditions

We wish To bring the following material terms To your attention In accordance With section 49 Of the Consumer Protection Act.

All terms And conditions Of this agreement are important And must be fully understood prior To signing this agreement.

The terms mentioned hereunder are Of particular importance And must be read And understood against the standard terms And conditions Of this agreement.

If you Do Not understand any one Of the terms And/Or conditions, please enquire With our office prior To signing this document.

1. The compliance service offered In terms Of this agreement Is designed To assist the Client With the establishment Of a compliance Function within the Client's business, in order to comply with the requirements of the Financial Advisory and Intermediary Services Act (FAIS), the Financial Intelligence Centre Act (FICA) and relevant subordinate legislation (hereinafter referred to as "the legislation").
2. The Client Is a financial services provider that Is Not required To appoint a Compliance Officer As provided For In section 17 Of the FAIS Act.
3. The Client acknowledges that Moonstone Is Not appointed As the Client's Compliance Officer and that the Client will at all times remain solely responsible for compliance with the requirements of the legislation.
4. The accountability, duty And responsibility To comply With the legislation shall at all times remain With the Client And neither Moonstone nor a Compliance Officer shall be liable For any act Or omission performed by the Client.
5. Additional services such As profile changes, assistance With the completion Of overdue compliance reports And the printing Of documents Do Not form part Of the Compliance Services And will be invoiced On a separate ad hoc basis.
6. The parties agree that this agreement shall endure For a period Of 3 (three) months from the Commencement Date (the "Initial Period"), where after this agreement shall Continue On a month To month basis. The parties therefore agree that after the conclusion Of the Initial Period either party may terminate this agreement by giving the other party 1 (one) calendar month's written notice of its intention to terminate the agreement. The parties further agree that any termination of this agreement shall be subject to the relevant requirements of the legislation.
7. Moonstone shall be entitled To adjust the Service Fees referred To In Schedule 2 On an annual basis, provided that such adjustment Is communicated To the Client On at least 1 (one) calendar month's prior written notice. In the event that the Client does not agree to the annual increase as referred to in this clause, the Client may terminate the agreement on 1 (one) calendar month's written notice to Moonstone of its intention to terminate, in which event no such annual increase shall apply during the notice period referred to herein. Fee adjustments (if any) will be done on the 1st day of July each year.
8. Each party acknowledges that the intellectual Property And any documentation, business methods, systems, application software, know-how And knowledge Of Each party exchanged between the two In the course Of this agreement Is Of a strictly confidential nature, being the sole Property Of the disclosing party ("the owner party").

Schedule 1 – Compliance Services

1. Access to the Self-Comply Online System that allows for the self-assessment of the level of compliance within the business
2. Access to actionable reports that identifies areas of non-compliance within the business
3. Access to Moonstone’s online Procedure Guide
4. Access to examples of compliance documents and policy templates
5. Subscription to Moonstone’s electronic newsletters
6. Ongoing SMS and e-mail communications of important deadlines
7.  Online FICA awareness training for all personnel (if subscribed for this service)
8. Telephonic support on compliance related matters (If subscribed for this service)
9. Periodic invitations to attend Moonstone seminars and workshops free of charge, or at a reduced fee

Schedule 2 – Service Fees

• Financial Services Provider (FAIS) – Monthly Fee as quoted and agreed upon (R 600 VAT inclusive)
• Accountable Institution (FICA) – Monthly Fee as quoted and agreed upon (R 600 VAT inclusive)
• Where both the FAIS & FICA service streams are selected – Monthly Fee as quoted and agreed upon (R 1005 VAT inclusive)
• Credit providers – Monthly Fee as quoted and agreed upon depending on the package selection (price inclusive of VAT):

Option MFSA Member Fee Non-MFSA Member Fee

• Financial services provider - Monthly Fee as quoted and agreed upon: R420 (inclusive of VAT)
• Accountable Institutions - Monthly Fee as quoted and agreed upon: R420 (inclusive of VAT)
• Credit providers – Monthly Fee as quoted and agreed upon depending on the package selection (price inclusive of VAT):
  

  Option	MFSA Member Fee	Non-MFSA Member Fee
  1. Basic (1 User)	R445	R500
  2. Standard (1 User)	R770	R870
  Additional Users (Per User)	R180	R200