STANDARD TERMS AND CONDITIONS

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The Standard Terms and Conditions for Services and Contracts must be read with the following where applicable:

Annexure A: The Scope of Works or Description of the Services (including any method statement (Annex A1) or service specification (Annex A2) or service requirement (Annex A3) agreed upon in writing);

Annexure B: Special Commercial Terms and Conditions; and

Annexure C: Special Conditions of Contract


TABLE OF CONTENTS

1       DEFINITIONS
2       INTERPRETATION
3       RECORDAL
4       APPOINTMENT
5       COMMENCEMENT AND DURATION
6       THE RELATIONSHIP
7       SERVICES
8       QUOTATIONS
9       SERVICE LEVELS
10     MEETINGS AND REPORTS
11     CHANGE CONTROL
12     CHARGES OR FEES
13     PAYMENT
14     SUPPLIER'S STAFF
15     GIFTS AND FAVOURS
16     BRIBERY AND CORRUPTION
17     AUDITS
18     OBLIGATIONS OF THE FOSKOR
19     OBLIGATIONS OF THE SUPPLIER
20     INTELLECTUAL PROPERTY RIGHTS
21     DATA PRIVACY AND PROTECTION
22     CONFIDENTIALITY
23     SUPPLIER'S  WARRANTIES
24     INDEMNITIES
25     LIABILITY OF SUPPLIER FOR DIRECT
26     INSURANCE
27     TERMINATION
28     TERMINATION FOR CONVENIENCE
29     FORCE MAJEURE
30     DISPUTE RESOLUTION
31     NOTICES AND DOMICILIUM
32     GENERAL
 

WHEREBY THE PARTIES AGREE AS FOLLOWS -

1            DEFINITIONS
As used in the Contract Documents the following words bear the following meanings -

1.1         "Affiliate" means, with respect to any entity, any other entity which -

1.1.1          is a subsidiary or a holding company or a subsidiary of the holding company of such entity. In regard to this definition the terms "subsidiary" and "holding company" shall have the meaning assigned thereto in Section 3 of the Companies Act, 2008 (Act 71 of 2008), provided that they shall also include any foreign entity which, had it been registered in terms of that Act, would fall within the ambit of such term; and/or

1.1.2       controls, is controlled by or is under common control with such entity. In regard to this definition the term "control" shall include control of any entity through any voting pool or other arrangement, the right to the exercise of voting rights, directly or indirectly, resulting in effective control of any entity and/or control of its management, and/or the right to appoint the majority of the members of the board of directors of any entity;

1.2         "Agreement" means this Standard Terms and Conditions for Major Contracts read together with below Annexures and which shall comprise the Contract Documents.

1.2.1       Annexure A - the Scope of Works or Description of the Services (including any method statement (Annex A1) or service specification (Annex A2) or service requirement (Annex A3) agreed upon in writing); 

1.2.2      Annexure B Special Commercial Terms and Conditions;

1.2.3      Annexure C Special Conditions of Contract;

1.2.4      Any other schedules, annexures or appendices thereto;


1.3        "Authorised Subcontractor" means a third party approved by Foskor in writing in terms of clause 32.2 with which the Supplier contracts to provide some of the Services under the Contract Documents;


1.4        "Authorised Access" means access granted to the Supplier or its personnel to enter an operational area of Foskor for the purpose of providing the Services as a consequence of this Agreement and for no other purpose;


1.5        "Acts" means any legislation, Applicable Specifications or standards, regulations, notice or directive which the Supplier is obliged to comply with as a consequence of this Agreement or as a result of rendering the Services or as a business entity under South African law required to comply with specific legislation to enable it to perform the Services or undertake the  obligations contemplated under this Agreement, which shall include but not be limited to the Hazardous Substances Act 15 of 1973, the National Road Traffic Act 93 of 1996, the Compensation for Occupational Injuries and Diseases Act, 1993; Mine Health and Safety Act,1996; Mineral and Petroleum Resources Development Act, 2004, National Water Act, 1998, National Nuclear Regulator Act, 1999, National Health Act, 2003; National Environmental Management Act, 1998; National Environmental Management: Waste Act, 2008; Occupational Health and Safety Act, 1993, Mine Health and Safety Act, 1996 or any regulation promulgated thereunder or subsequent amendment effected thereto and which the Supplier  warrants to comply as more fully detailed at Clause 22.6 below;


1.6       "Applicable Specifications" means any regulatory requirement in terms of the Acts, specifications or standards prescribed by the OEM, SANS, COP, SOP applicable to the Service(s);


1.7      "Fees or Charges" means the fees and charges for the Services, which Foskor as part of its tender adjudication process, which charges and fees Foskor confirmed in the Purchase Order and which may be further detailed in an applicable Special Commercial Terms and Conditions; 


1.8       "Causal Event" means –

1.8.1      a compromise, scheme of arrangement or composition by the Supplier with any or all of its creditors;

1.8.2      liquidation of the Supplier or placement of the Supplier in judicial management, whether provisionally or finally; 

1.8.3      a default or cessation, or a reasonable prospect of default or cessation (as the case may be), of the Supplier's normal line of business;

1.8.4      the commission of any act or any omission which is an act of insolvency by an individual in terms of the Insolvency Act, 1936, or the existence of circumstances which would allow for the winding up of the Supplier in terms of the Companies Act, 2008, and/or in terms of the Close Corporations Act, 1984, as the case may be;

1.8.5      disposal by the Supplier of a material portion of its undertaking or assets; or

1.8.6      any Change of Control of the Supplier. A "Change of Control" shall be deemed to have occurred in circumstances where, subsequent to the Effective Date, any person (whether natural, juristic or otherwise) acquires the ability, by virtue of ownership, rights of appointment, voting rights, management agreement, or agreement of any kind, to control or direct, directly or indirectly, the board or executive body or decision making process or management of the Supplier;
provided that the Causal Events set forth in sub clauses 2.8.3, 2.8.4, 2.8.5 and 2.8.6 shall be deemed to be Causal Events, if the Foskor, acting in good faith, considers such events to be detrimental to it for sound business reasons;


1.9        "Confidential Information" means any information or data of any nature, tangible or intangible, oral or in writing and in any format or medium, which by its nature or content is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party or which is provided or disclosed in confidence, and which the Disclosing Party or any person acting on behalf of the Disclosing Party may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means. Without limitation, the Confidential Information of the Disclosing Party shall include the following even if it is not marked as being 'confidential', 'restricted' or 'proprietary' (or any similar designation) –

1.9.1       information relating to the Disclosing Party's business activities or operations, business relationships, products, services, processes, data, and Staff, including agreements to which the Disclosing Party is a party;  

1.9.2       information contained in or constituting or relating to the Disclosing Party's equipment, systems, machinery, hardware or software, networks, telecommunications services and facilities, including third party products, and associated material, and information or incidents concerning faults or defects therein;

1.9.3      the Disclosing Party's technical, scientific, commercial, financial and market information (including valuations and forecasts), methodologies, formulae and trade secrets;

1.9.4      the Disclosing Party's architectural information, demonstrations, plans, designs, drawings, processes, process maps, functional and technical requirements and specifications and the data relating thereto;

1.9.5      Intellectual Property that is proprietary to the Disclosing Party or that is proprietary to a third party, including but not limited to third party products and data relating to the customers of the Disclosing Party; and

 
1.9.6     business process outsourcing knowledge of the Disclosing Party and information relating to the Disclosing Party's current and existing strategic objectives, strategy documents and plans for both its existing and future plant operations, information technology, processing, business processing and business process outsourcing; 

Confidential Information excludes information or data which -

1.9.7       is lawfully in the public domain at the time of disclosure thereof to the Receiving Party; or

1.9.8       subsequently becomes lawfully part of the public domain by publication or otherwise; or

1.9.9       is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information to the Receiving Party; or

1.9.10     is disclosed pursuant to a requirement or request by operation of law, regulation or court order but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed;

provided that -

1.9.11     the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions; and
1.9.12     the information disclosed will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in a Party's possession; and

1.9.13    any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in a Party's possession, but only if the combination itself is in the public domain or in a Party's possession;
The determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;


1.10      "Contract Documents" means this Agreement together with the Annexures as may be amended from time to time and any addenda, schedules or additional annexes to this Agreement all of which addenda, schedules and annexes are an integral part of these Contract Documents and shall be interpreted and construed accordingly;


1.11     "Commencement Date" means the date set out in the Special Commercial Terms and Conditions, notwithstanding the date of signature hereto;


1.12     "Foskor" means Foskor (Pty) Ltd, registration number 1951/002918/07, a private company duly incorporated in terms of the company laws of the Republic of South Africa; 


1.13     "Supplier" means the party to whom a Purchase Order has been issued and who has signed and returned the Purchase Order to Foskor. All the company or business details of the Supplier will appear on the Purchase Order and the Supplier must confirm that the address appearing thereon as it's chosen domicilia citandi et executandi (which cannot be a post office box) for the purposes of receiving legal notices;   


1.14     "Foskor Intellectual Property" means all Intellectual Property owned by the Customer;


1.15      "Data" means any data, including personal information as defined in the Electronic Communications and Transactions Act, 2002, and any other applicable legislation;


1.16      "Integrity Assessment(s)" means the integrity checks carried out by the Supplier on its personnel and third parties involved in the provision of the Services, to evaluate the suitability of such personnel, which shall include (without limitation) the carrying out of criminal record checks, education and qualifications verification, drivers licence verification, dishonesty checks, polygraph testing and psychometric assessments;


1.17      "Intellectual Property" means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (whether or not registered), or Copyright Material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property. For the purposes of this definition, "Copyright Material" means any Material in which copyright subsists;


1.18     "Losses" means all losses, liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);


1.19      "Purchase Order" means a confirmation issued by Foskor to a Supplier that the tender in respect of goods to be supplied or services to be rendered or work to be performed has been successful on acceptance of the terms and conditions as set out in the Purchase Order, read together with terms and conditions set out herein and specifically the Annexures referred to in clause 2.2.1 to clause 2.2.4. Foskor shall not be obliged to perform in terms of this Agreement or may cancel this Agreement at any time, without incurring any liability, if the Supplier has failed, neglected or refused to sign the Purchase Order, this Agreement or completed or obtained any of the Annexures required in terms of the Contract Documents;


1.20      "Supplier's Intellectual Property" means any and all Intellectual Property owned by the Supplier and used to provide the Services, as identified in writing by the Supplier to Foskor in a Schedule hereto. In the absence of a schedule relating to the Supplier's Intellectual Property it shall be assumed that no Supplier's Intellectual Property will be utilised in the provision of the Services;

1.21      "Contract Period" means the period specified in a Annexure A or the Contract Documents over which the services will be completed;

1.22      "Penalties" means the penalties set out in the Contract Documents hereto;

1.23      "Personnel" means any employee, agent, consultant, sub-contractor or other representative of either party;

1.24      "Repo Rate" means the interest rate (percent per annum) at which the South African Reserve Bank lends money to private banks;

1.25      "the Parties" means the parties to this Agreement, being -

1.25.1   "the Disclosing Party" being either Foskor or the Supplier and/or any person or legal entity whose Confidential Information is disclosed;

1.25.2   "the Receiving Party" being the Party, other than a Disclosing Party, that receives disclosure of any of the Confidential Information;

1.25.3    "the Indemnitor" being either of the Parties to this Agreement that indemnifies the other; and'

1.25.4    "the Indemnitee" being the Party, other than the Indemnitor, that relies upon the indemnity of the Indemnitor;


1.26       "SOP" means Standard Operating Procedures which is compiled and regularly updated by Foskor and must be adhered to by the Supplier as it regulates the best practices and manner in which work activities are to be performed, it includes compliance with the Mine Health and Safety Act, 1996 and the Occupational Health and safety Act, 1993 including 
the regulations promulgated thereunder and is accepted as an integral, fundamental and essential part of any work activity performed at the Mine;


1.27     "Service Manager of Foskor or Supplier" means one or more individual designated by each Party in terms of the Contract Documents, to whom critical communications regarding the Agreement will be addressed. Either Party may replace such individual appointed by that Party from time to time on reasonable prior notice;


1.28     "Services" means the services, functions and responsibilities, which are outsourced by Foskor to the Supplier in respect of the Foskor's business operations or other services which may be required by Foskor and which shall be set out in the Contract Documents.


1.29     "Signature Date" means the date of signature of this agreement by the party last signing;


1.30      "Staff" means any employee, independent contractor, agent, consultant, sub‑contractor or other representative of either Party or of a Client;

1.31     "Third Party" means third party company or companies contracted to Foskor from time to time;

1.32     "Supplier's Account" means the Supplier's bank account details as provided to Foskor, into which all Charges or Fees shall be paid;

1.33     "Supplier Intellectual Property" means any and all Intellectual Property owned by the Supplier and used to provide the Services as set out in the Contract Documents;

1.34     "Termination/Expiration Assistance" means the provision by the Vendor of all reasonable information and assistance to Foskor to enable the Foskor or a third party designated by the Foskor to take over the Supplier's obligations under the Contract Document in the event of termination or expiration of this Agreement as provided for in clause 7.5 and clause 27.

1.35      "Tender Documents" means documents submitted by the Supplier in response to Foskor's invitation and tender, including the prescribed tender form, specifications, instructions, method statements or other enquiry documents in the tender process, scope of works, drawings, specifications, time lines, charts and prices for the Services;


2          INTERPRETATION
In these Contract Documents (as hereinafter defined) -

2.1        clause headings are for convenience and are not to be used in the interpretation of the Contract Documents in which such headings appear;

2.2        no provision shall be construed against or interpreted to the disadvantage of any Party by reason of such Party having or being deemed to have structured or drafted such provision; and

2.3       unless the context indicates a contrary intention, an expression which denotes –

2.3.1    any gender includes the other genders;

2.3.2    a natural person includes a juristic person and vice versa; and

2.3.3    the singular includes the plural and vice versa;


2.4       the words "clause" or "clauses" and "Annexure" or "Annexures" refer to clauses of and Annexures to the Contract Documents;


2.5        any reference to "days" shall be construed as being a reference to calendar days unless qualified by the word "business" in which instance a "business day" shall be any day of the week other than a Saturday, Sunday and/or a public holiday as gazetted by the government of the Republic of South Africa from time to time; Days recorded in the Special Commercial Terms and Conditions or Special Conditions of Contract shall be construed according to the meaning given.


2.6        any reference to "business hours" shall be construed as being the hours between 07h30 and 16h30 on any business day for the corporate head office, 07h00 and 16h00 for Phalaborwa mining division on any business day and 07h30 to 16h30 for Richards Bay acid division on any business day. Any reference to time shall be based upon South African standard time being Greenwich Meantime plus 2 (two) hours;


2.7        the words "include", "includes", and "including" means "include without limitation", "includes without limitation", and "including without limitation". The use of the word "including" followed by a specific example/s shall not be construed as limiting the meaning of the general wording preceding it; 


2.8        any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in clause 2 or elsewhere within the Contract Documents, shall be given effect to as if it were a substantive provision within the body of the Contract Document;


2.9        defined terms appearing in the Contract Documents in title case shall be given their meaning as defined, unless the context otherwise indicates;


2.10      terms other than those defined in the Contract Documents and defined terms appearing in the Contract Documents in lower case will be given their plain English meaning (which in the case of defined terms appearing in lower case will include the term as defined) and those terms known in a specific industry will be interpreted in accordance with their generally accepted meanings within the industry, unless the context otherwise indicates;


2.11      a reference to any statutory enactment shall be construed as a reference to that South African enactment as at the date of signature of the Contract Documents, as amended or substituted from time to time and includes all regulations to such enactment;


2.12       unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a Saturday, Sunday or public holiday, the next succeeding business day. Where days are prescribed in the Special Commercial Terms and Conditions or Special Conditions of Contract specifically, any number of days shall be determined by including the first and excluding the last day, which shall include a Saturday, Sunday or public holiday, unless otherwise provided; and


2.13 WHERE FIGURES ARE REFERRED TO IN NUMERALS AND IN WORDS, AND THERE IS ANY CONFLICT BETWEEN THE TWO, THE WORDS SHALL PREVAIL, UNLESS THE CONTEXT INDICATES A CONTRARY INTENTION


3        RECORDAL
3.1     Foskor requires the specialist expertise, knowledge and experience of the Supplier to perform the Services.

3.2     The Supplier represents that it has the necessary expertise, skill, know-how, qualifications, ability, capacity and resources to undertake the work required in terms of the Services.


4       APPOINTMENT
Foskor hereby appoints the Supplier, and the Supplier hereby accepts such appointment, to perform the Services for Foskor, upon the terms and conditions contained herein. 


5       COMMENCEMENT AND DURATION
This Agreement shall commence on the Commencement Date and will terminate at the end of the Contract Period, unless terminated by either Party in accordance with the provisions of this Agreement.


6         THE RELATIONSHIP

6.1.     The Supplier hereby acknowledges that any Affiliate of Foskor shall be entitled to benefit from the terms and conditions hereinafter set forth in this Agreement or any Contract Document forming part of this Agreement. As such (i) any licence rights granted to Foskor shall be deemed to be granted to the Foskor's Affiliates unless specifically recorded otherwise in a Contract Document; (ii) any Foskor Affiliate shall be entitled to conclude a separate Agreement with the Supplier if required or the Supplier shall be bound by the terms and conditions contained in this Agreement.

6.2.     The Supplier hereby acknowledges that to the extent that this Agreement or any Contract Document executed under this Agreement regulates the supply of the Services to Foskor by the Supplier and which provides for pricing based upon pricing discounts or rebates or upon preferential pricing arising from the aggregation of supply, procurement or volumes by Foskor, then, and to that extent, Foskor shall be entitled to include within its supply, procurement or volumes, any volumes derived from its Affiliates. This clause 6.2 is subject to the further qualification that, where an Affiliate, which has benefited from such pricing discounts or rebates or preferential pricing, ceases to be an Affiliate, then Foskor shall not be entitled to include volumes derived from such former Affiliate in any further supply, procurement or volumes following the cessation of the former Affiliate's status as an Affiliate.

 

7          SERVICES
7.1       The Supplier will provide the Services to Foskor subject to the terms and conditions of the Contract Documents.

7.2        Any additional Services required shall only be undertaken with express written consent of Foskor and be incorporated in an addendum to Annexure A.

7.3       Where additional Services are undertaken without the written consent of Foskor, it shall be at risk of the Supplier and the Supplier shall not be entitled to charge for such Services. The Supplier hereby indemnifies Foskor from any loss or damage in respect of the additional Services undertaken by the Supplier;

7.4       The Supplier shall provide the Services to Foskor subject to the terms and conditions of this Agreement and the Contract Documents;

7.5        If the Supplier fails to perform the Service/s, Foskor shall have the right in its sole discretion to perform the Service/s by itself or through an appointed third party supplier at the Supplier's risk, cost and expense - and claim full reimbursement from the Supplier, provided that such rights shall be without prejudice to any other rights which Foskor may have against the Supplier. The Supplier shall give its full and unconditional assistance and co-operation to Foskor and the third party supplier to perform and complete the Service/s (or the particular part thereof) as stated herein.

7.6         Where goods are to be delivered they must be delivered at the time and place stipulated by Foskor prior to delivery. All risk of loss and damage shall be for the Supplier's account if any loss or damage is sustained in breach of any delivery terms or instructions from Foskor's authorised representatives. Where no such instructions are explicitly given by Foskor, it shall be incumbent on the Supplier to make reasonable inquiry as to such delivery terms. Foskor shall not be obliged to accept any goods delivered without delivery instructions and shall not be in breach of this Agreement should it refuse to take delivery when no delivery instruction has been provided to the Supplier or requested by the Supplier prior to delivery.

7.7         Where the Supplier requires access to Foskor's premises to perform the Service/s, access to commence rendering the Services will only be granted after all Health, Safety, Environmental and Security policies, procedures or protocols have been adhered to. Failing to comply in any manner with Health, Safety and Environmental and Security policies, procedures or protocols will lead to automatic cancellation of this Agreement without Foskor incurring any liability whatsoever. Access will only be granted for the time required to perform the Service/s. Should the Supplier or any of its personnel be found to have breached this requirement, Foskor may terminate the agreement immediately or impose such further requirements or restrictions on the Supplier's movement within the plant or operational area as deemed necessary to prevent unauthorised access, abuse of access or to prevent any harm that may have been caused by the Supplier or its personnel by their conduct or presence.

7.8          The Services in terms of this Agreement shall at all times be subject to strict compliance all with applicable legislation, regulations, COP's, SOP of Foskor applicable to the Service/s and as amended from time to time, and which Foskor and the Supplier are obliged to comply with.

7.9          The Supplier to adhere to all applicable legislation, regulations, COP's and SOP's relating to the Service in addition to any other legal obligation or legislative requirements applicable to the Supplier and legislative or industry standards required to be adhered to by the Supplier in rendering the Services or to sell particular goods or render a services which require regulatory approval, sanctioning, licensing or statutory approval and compliance.

7.10        Foskor may at its sole and absolute discretion, which discretion will be exercised reasonably, immediately cancel this Agreement should any violation of the requirements in 7.8 occur or any license required lapses or is not renewed or a regulatory sanction is imposed which will harm the reputation or business operations of Foskor if it continues to deal with the Supplier in terms of this Agreement. Foskor shall not incur any liability whatsoever in cases where the Supplier has breached a requirement set out in clause 7.8


8            QUOTATIONS
Where Foskor requests the Supplier to provide a quotation in respect of any proposed other services, the Supplier shall furnish Foskor with a detailed written quotation upon which shall be stated an all-inclusive price for such other services, the exact nature and scope of the services and the details as to the date until which such quotation shall be open for acceptance by Foskor. Where a written quotation does not state a date of expiry, it shall be open for acceptance by Foskor for a reasonable period, which period shall not be less than 120 (one hundred and twenty) days following receipt by Foskor of such quotation. No contractual obligation is imposed on Foskor by the acceptance of the Supplier's quotation. In the absence of the Parties' specific written agreement to the contrary, it is the intention of the Parties that a new contract will be concluded in respect of any accepted quotation.


9          SERVICE LEVELS
9.1       The Supplier shall perform the Services with promptness, diligence and courtesy. The Supplier shall execute the Services in a professional manner and in accordance with the practices and professional standards used in well-managed operations performing services similar to the Services.

9.2       The Contract Documents will set forth the Service Levels by which the Supplier's performance of the Services under the Contract Documents is measured in the Contract Period.

9.3       The Supplier recognises that its failure to meet Service Levels may have a material adverse impact on the business and operations of Foskor and that the damage from the Supplier's failure to meet any Service Level is not susceptible to precise determination. Accordingly, in the event that the Supplier fails to meet a Service Level, then in addition to all other remedies available to Foskor in law, Foskor may, where agreed upon in the Contract Documents, recover the applicable penalty amounts stipulated therein or enforce any right as set out in the Agreement and in law.

9.4       The Supplier shall be excused, only to the extent to which such conduct interferes with the Supplier's ability to perform the Services, except matters relating to health, safety and the environment, from failing to comply with the Service Levels to the extent that non-performance or delayed performance is caused by -

9.4.1     Foskor or its Staff; or

9.4.2     an instance of force majeure as referred to in this Agreement.

9.5        In the event that Foskor is entitled to impose a penalty under the Contract Documents and elects to enforce the penalty, the amount of such penalty shall be set forth as a deduction on the Supplier's next invoice. If there is no further invoice for the Services in question, then the Supplier shall, at Foskor's election, either refund the amount of the penalty to Foskor or provide Foskor with a credit note for such amount.

9.6       If the Supplier fails to meet any Service Level and such failure is due to its act or omission, the Supplier shall (i) investigate and report on the root causes of the Service Level failure; (ii) promptly correct the failure and begin meeting the Service Levels; (iii) advise Foskor, as and to the extent requested by Foskor, of the status of remedial efforts being undertaken with respect to such Service Level failure; and (iv) take appropriate preventive measures to prevent the recurrence of the Service Level failure.

9.7       The Supplier shall be responsible for monitoring and measuring its performance of the Services against the Service Levels. Failure to measure performance with respect to a particular Service Level shall be deemed to be a failure to meet such Service Level and constitute a material breach of the Agreement.

9.8       It is recorded that Foskor is entitled to reasonable access to all data in the Supplier's possession relating to Service Levels and Service Level performance as provided for in the Contract Documents. 

9.9       The Supplier shall provide Foskor with a set of soft-copy reports on the Supplier's performance against the Service Levels on a monthly basis. The Supplier shall also provide Foskor with detailed supporting information for each report as reasonably requested by Foskor.

10        MEETINGS AND REPORTS
The Parties shall attend the meetings specified in Contract Documents.  In addition, unless agreed to the contrary in writing, the Supplier shall be required to attend all ad-hoc meetings as reasonably required by Foskor to ensure that the Services are performed effectively and in accordance with the Contract Documents. In all meetings, minutes of the meeting shall be taken and signed off by Foskor as a true record of discussions and decisions taken at the meeting.


11         CHANGE CONTROL
No changes to this Agreement or of this clause 11 and no agreed cancellation of this Agreement shall be of any force or effect unless reduced to writing and signed by or on behalf of the authorised representatives of the Parties.

 

12        CHARGES OR FEES

12.1     The charges or fees applicable to performing Services and providing Deliverables shall be as stated in the Contract Documents.

12.2     Unless otherwise specified, all fees and expenses set out in the Contract Documents are exclusive of Value Added Tax.

12.3.    Both Parties acknowledge that the charges specified in the Contract Documents are intended to compensate the Supplier fully for all Services to be performed or provided by the Supplier. Accordingly, Foskor will not be obligated to pay the Supplier any amounts in addition to those specifically described in the Contract Documents.

13         PAYMENT

13.1.     Unless otherwise agreed in writing, invoices shall be rendered monthly in arrears and payment of the Supplier's invoices shall be made by Foskor within 30 (thirty) days from date of receipt thereof by the Foskor's appointed Service Manager. It will be the responsibility of the Supplier to obtain the details of the Service Manager from Foskor. 

13.2      Foskor shall be entitled to stipulate, on reasonable notice, invoicing standards applicable to any fees and charges levied by the Supplier under the Contract Documents.

13.3      The Supplier shall maintain complete and accurate records of all amounts billed to and payments made by Foskor under the Contract Documents in accordance with generally accepted accounting principles. The Supplier agrees to provide Foskor with any information with respect to each invoice as may be requested by Foskor to verify accuracy and compliance with the provisions of the Contract Documents.

13.4      The Supplier shall provide such information as is reasonably requested by Foskor to permit allocation of the charges under the Contract Documents by legal entity, by business unit, by site, by client and by service type.

13.5      Foskor may withhold any amounts that it disputes in good faith, provided it furnishes the Supplier with reasons before the due date of payment and, provided that, should the Supplier elect to do so, such dispute shall be referred to dispute resolution in terms of clause 30. In the event that Foskor, following the outcome of the dispute resolution procedure, is held to have withheld such amounts without proper cause, the maximum liability which Foskor may incur to the Supplier shall be limited to a return of any amount so withheld, together with interest at a rate equal to that of the Repo Rate from due date to date of actual payment, both days inclusive.

13.6       Any undisputed amount which is due and payable by Foskor to the Supplier may bear interest at a rate equal to that of the Repo Rate plus 3% from due date to date of actual payment, both days inclusive.

 

14        SUPPLIER'S  STAFF
The Supplier shall ensure that the Supplier and the Supplier's Staff shall at all times, whilst on Foskor's premises, adhere any applicable legal requirements imposed upon it as an entity operating under South Africa Law and providing the services as agreed to in the Contract Documents. The Supplier and its Staff shall adhere to the health, safety and environmental protection requirements as set out in the Contract Documents, the standard health, safety and security procedures and guidelines applicable to Foskor's contractors. Foskor may amend such procedures and guidelines from time to time and the amendments will be made available to the Supplier on request. Should Foskor at any time have reason to believe that any member of the Supplier's Staff is failing to comply with such standard health, safety, environmental and security procedures and guidelines, Foskor shall be entitled to deny such Staff-member access to any or all of Foskor's premises and require the Supplier to replace such Staff-member without delay.

14.1       The Supplier accepts sole responsibility for all health and safety matters relating to the provision of the Services, or in connection with or arising out of such Services, for the duration of this Agreement, including –

14.1.1    providing and ensuring the health, safety of the Supplier's Staff and ensuring that the Supplier's Staff at all times adhere to the health and safety legislation and the terms and conditions of the Contract Documents; and

14.1.2   ensuring that neither Foskor's Staff's nor any third party's health and safety is endangered in any way by the Supplier's activities or conduct in providing the Services.

14.2     Foskor shall be entitled, by giving no less than 48 (forty-eight) hours written notice to the Supplier setting out full and precise reasons, to require the Supplier to remove any member of its Staff who, in the Foskor's reasonable opinion, is failing to perform their duties in a satisfactory manner and the Supplier shall take such steps as may be necessary to give effect to such notice.

14.3 It is hereby agreed that the Supplier is not appointed to act as Foskor's agent as contemplated in the Construction Regulation, promulgated in terms of the Occupational Health and Safety Act 85 of 1993, as amended.
 
15          GIFTS AND FAVOURS

Foskor  shall be entitled to terminate the Agreement forthwith if it is found that gifts and favours (for example business transactions / terms / conditions that are not freely available to the public, entertainment, gifts or otherwise or a breach of Foskor's commercial standards for conducting business at arm's length have occurred or a non-compliance to policy) were given by the Supplier, or any employee, agent or representative of the Supplier to any officer or employee of Foskor (or family of such an officer or employee of Foskor) with a view toward securing the Agreement or securing the favourable treatment or terms by or from Foskor.

 

16         BRIBERY AND CORRUPTION

Each Party shall comply with and not contravene the Prevention and Combating of Corrupt Activities Act no 12 of 2004 and Foskor's Code of Ethics and Business Conduct or Ethics Policy in obtaining and executing the Service/s. In determining whether or not bribery or corruption was or is being perpetrated regard shall be had to decisions taken in terms of the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010.  Either Party shall be entitled, notwithstanding its other legal remedies, to terminate the Agreement with immediate effect in the event that the other Party is not complying with this clause and claim damages from the other Party.


17           AUDITS

17.1.       The Supplier shall allow Foskor, its auditors (including internal audit, Staff and external auditors) and inspectors as Foskor may from time to time designate in writing, access at all reasonable times to any facility or part of a facility at which the Supplier is providing the Services, the Supplier's  site, the Supplier's  Staff, and to any hardware, software used in the provision of the Service for the purpose of performing audits and inspections on the Supplier to (i) verify the accuracy of the Supplier's  charges and invoices; (ii) verify the integrity Supplier's  data and examine the systems that process, store, support and transmit that data relating to the Services; and (iii) examine the Supplier's  performance of the Services including: (a) verifying compliance with the Service Levels; (b) examining practices and procedures including security practices and procedures, systems, general controls, and the efficiency of the Supplier's  operation to the extent relevant to the level of the Supplier's  performance or charges under the Contract Documents; (c) verifying compliance with the terms of the Contract Documents; and (d) verifying compliance with any legislative or regulatory provision or regulation to the extent that such provision is material to Foskor; and (iv) the Supplier shall provide to Foskor's auditors and inspectors such assistance and co-operation as they may reasonably require, including installing and operating audit software. Foskor shall ensure that no unreasonably disruption to the Supplier's business operations take place and shall comply with the Supplier's reasonable security or confidentiality requirements.

17.2.        The Supplier shall make available promptly to Foskor the findings of any review or audit conducted by the Supplier, its affiliates, or their Staff (including internal and external auditors), to the extent such findings reflect conditions and events which have a material impact on the Services or Foskor.

17.3.       Promptly after the issuance of any audit report or findings issued under clause 17.1 or 17.2 the Parties shall meet to review such audit report or findings and to mutually agree upon the appropriate manner in which to address the risks raised in the audit report or findings.

17.4.       The Supplier shall maintain a complete audit trail of all financial and non-financial transactions resulting from the Contract Documents as is reasonably necessary to give effect to the provisions of this clause 17. The Supplier will maintain and provide Foskor access upon request to the records, documents and other information that make up such audit trail until the later of: (i) 3 (three) years after termination of the applicable Contract Documents; (ii) all pending matters relating to the Contract Documents (e.g. disputes) are closed; or (iii) such other period as is required by applicable law in relation to those records, documents or other information.

 

18           OBLIGATIONS OF THE FOSKOR

18.1.       Foskor acknowledges that where its responsibilities are clearly defined in the Contract Documents, Foskor will use reasonable efforts to satisfy these responsibilities. Foskor's failure to perform any of its responsibilities explicitly set forth in the Contract Documents shall be deemed not to be grounds for termination by the Supplier, unless the failure to perform amounts to a material breach of the Contract Documents on the part of Foskor.

 

19          OBLIGATIONS OF THE SUPPLIER

19.1       The Supplier acknowledges that where its responsibilities are clearly defined in the relevant Contract Documents, the Supplier will on a best effort basis satisfy these responsibilities. The Supplier's failure to perform any of its responsibilities explicitly set forth in the Contract Documents due to its act or omission shall be deemed to be grounds for termination by the Customer.

19.2       The Supplier shall employ competent, suitably qualified and trained personnel to provide the Service to Foskor in terms of this Agreement, and shall be entitled, in its discretion, to allocate personnel resources in accordance with the technical skills and knowledge required, provided that any exercise of such discretion by the Supplier shall not negatively impact on the provisions of the Services by the Supplier to Foskor.

19.3      The Supplier shall ensure continuity in its personnel's knowledge and understanding of and skills in regard to the current Services and the Service Levels relating thereto. Without limiting the generality of the aforegoing, the Supplier shall ensure that all personnel have a full knowledge and understanding of the Contract Documents, including what is required of the Supplier and that it shall maintain appropriately trained, educated and skilled personnel in adequate numbers, and with a job class and skill mix such that the Supplier is able to perform the Services in accordance with this Contract Documents and meet or exceed applicable Service Levels.

19.4      The Supplier shall at all times comply with Acts or laws applicable to it as a legal entity operating and providing services under South African law and shall, without limitation, specifically comply with: (a) the Unemployment Insurance Act; (b) the Basic Conditions of Employment Act; (d) Labour Relations Act; (d) the Workman's Compensation Act; (e) the Mine Health and Safety Act; Environmental Legislation, National Water Act and Occupational Health and Safety Act and any regulations promulgated in terms thereof.

19.5      Ensure that it and its personnel shall adhere to Foskor's general security policies and procedures determined by Foskor from time to time.

19.6     The Supplier shall be obliged to procure that its personnel who no longer require the right of access to Foskor's premises or any part thereof for the normal performance of the Services shall immediately return all access cards, security codes and the like, as well as any other property belonging to the Foskor.

19.7     The Supplier shall be liable to Foskor for any loss that Foskor or any of its personnel and clients may suffer as a result of any negligence, theft, fraud or other criminal act of any personnel of the Supplier who were at the time acting within the course and scope of their employment with the Supplier or under the direct control of the Supplier.

19.8     The Supplier shall undertake the Services in accordance with the requirements set forth herein and the applicable Service Levels contained in the Contract Documents.

19.9     Other than in respect of a breach of this Agreement on the part of Foskor which has remained unremedied after the Supplier has given Foskor due notice to correct same in accordance with clause 27, the Supplier shall not be relieved of any of its obligations to perform the Services, notwithstanding that Foskor has failed to perform any of its own obligations, unless otherwise provided for in this Agreement.

19.10     The Supplier undertakes to keep itself abreast of all demonstrated best practices worldwide relating to the Services. 

19.11     The Supplier undertakes to consult with Foskor prior to it making changes to its management who are responsible for executing the Services in terms of the Contract Documents.   


20          INTELLECTUAL PROPERTY RIGHTS

20.1       Foskor retains all right, title and interest in and to Foskor's Intellectual Property.

20.2       The Supplier retains all right, title and interest in and to the Supplier Intellectual Property that is used in connection with the Services and insofar as is necessary in the performance of the Services, the Supplier hereby grants Foskor a non-exclusive license to utilise such Supplier Intellectual Property for the duration of this Agreement and for the sole purposes of its intended use of the project subject to the terms and conditions of this Agreement. It is recorded that the costs for such licenses shall be included in the Fees or Charges set out in the Contract Documents.

 20.3       The Supplier shall not introduce into Foskor's environment any third party Intellectual Property for the continued duration of this Agreement or otherwise use such third party Intellectual Property to provide the Services without first obtaining Foskor's consent thereto.

20.4       The Supplier shall not, without Foskor's express prior written consent, use any third party Intellectual Property licensed to Foskor whether to provide the Services to Foskor or for any other purpose whatsoever.

 20.5       Foskor shall have all right, title and interest to all intellectual property developed or generated specifically for Foskor as part of the Services. The Supplier hereby irrevocably assigns, transfers and conveys to the Foskor without further consideration all of its right, title and interest in all Intellectual Property rights and/or other proprietary rights in such materials and where such materials have not yet been created, all future copyright therein (with immediate effect from the date that such copyright comes into existence). The Supplier agrees to execute any documents or take any other actions as may reasonably be necessary, or as the Foskor may reasonably request in writing, to perfect the Foskor's ownership of the Intellectual Property rights in such deliverables. The Supplier shall not be liable in any way for the use of any of the information other than as originally intended for the project and Foskor hereby indemnifies the Supplier against any claim which may be made against him by any party arising from the use of such documentation for other purposes.

21           DATA PRIVACY AND PROTECTION

21.1        The Supplier acknowledges that in providing the Services to the Customer, the Supplier shall be exposed to Foskor's Data.

21.2        The Parties specifically record that all Data provided by Foskor to the Supplier, or to which the Supplier may be exposed, shall constitute Confidential Information and as such, the Supplier shall comply with all the provisions of clause 21 with regard to such Data.

21.3       The Parties record further that all Data, in whatever form, shall be Foskor Intellectual Property. Accordingly, Foskor retains all right, title and interest in and to the Data and the Supplier shall comply with the provisions of clause 21.2 in respect of such Data.

21.4      The Supplier hereby undertakes in favour of Foskor that it shall at all times strictly comply with all applicable legislation including but not limited to The Protection of Personal Information Act 4 of 201 and with all the provisions and requirements of the Foskor's Data protection policies and procedures (including encryption standards) in force, from time to time, and any further requirements of which Foskor may, from time to time, advise the Supplier in writing, or which may be required by legislation, regulation or any relevant industry body, whether within the Republic of South Africa or elsewhere in the world.

21.5      The Supplier hereby undertakes that it shall not, at any time copy, compile, collect, collate, process, mine, store, transfer, alter, delete, interfere with or in any other manner use Data for any purpose other than with the express prior written consent of Foskor, and to the extent necessary to provide the Services to Foskor.


22         CONFIDENTIALITY

22.1      The Receiving Party acknowledges the great importance of the Confidential Information to the Disclosing Party and, where applicable, third party proprietors of such information, and recognises that the Disclosing Party and/or third party proprietors may suffer irreparable harm or loss in the event of such information being disclosed or used otherwise than in accordance with this Agreement.

22.2      The Receiving Party agrees and undertakes -

22.2.1   Except as permitted by this Agreement, not to disclose or publish any Confidential Information in any manner, for any reason or purpose whatsoever without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall also be incumbent on the Receiving Party to obtain the consent of such third party; 

22.2.2   Except as permitted by this Agreement, not to utilise, employ, exploit or in any other manner whatsoever use the Confidential Information for any purpose whatsoever without the prior written consent of the Disclosing Party and provided that in the event of the Confidential Information being proprietary to a third party, it shall also be incumbent on the Receiving Party to obtain the consent of such third party;

22.2.3   To restrict the dissemination of the Confidential Information to only those of its Staff who are actively involved in activities for which use of Confidential Information is authorised and then only on a "need to know" basis and the Receiving Party shall initiate, maintain and monitor internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure by its Staff; and

22.2.4   To take all practical steps, both before and after disclosure, to impress upon its Staff who are given access to Confidential Information the secret and confidential nature thereof.

22.3      All Confidential Information disclosed by the Disclosing Party to the Receiving Party or which otherwise comes to the knowledge of the Receiving Party, is acknowledged by the Receiving Party -

22.3.1   to be proprietary to the Disclosing Party or where applicable, the relevant third party proprietor; and

22.3.2   not to confer any rights of whatsoever nature in such Confidential Information on the Receiving Party.

22.4      The Receiving Party shall protect the Confidential Information in the manner, and with the endeavour, of a reasonable person protecting its own Confidential Information. In no event shall the Receiving Party use less than reasonable efforts to protect the confidentiality of the Confidential Information.

22.5     The Disclosing Party may at any time on written request to the Receiving Party, require that the Receiving Party immediately return to the Disclosing Party any Confidential Information and may, in addition, require that the Receiving Party furnish a written statement to the effect that upon such return, it has not retained in its possession or under its control, either directly or indirectly, any such Confidential Information or material. Alternatively, the Receiving Party shall, as and when required by the Disclosing Party on written request to the Receiving Party, destroy all such Confidential Information and material and furnish the Disclosing Party with a written statement to the effect that the same has been destroyed. The Receiving Party shall comply with any request in terms of this clause 22.5 within 7 (seven) days of receipt of such request.

22.6    The Supplier shall procure that the Supplier's Staff who have access to Confidential Information, give a written undertaking in favour of Foskor in regard to the Confidential Information on substantially the same terms and conditions contained within this Agreement in a form prescribed by Foskor. Foskor shall be entitled to deny a Supplier Staff member access to its premises or prevent such member conducting any work in relation to then Services or under Foskor's control, should Foskor not be in receipt of a signed undertaking from such member on such terms and conditions as determined by Foskor. Foskor's failure to obtain receipt of the undertaking referred to in this clause 21.7 shall in no way detract from the Supplier's obligation in terms of this Agreement.

In the event that the Receiving Party is required to disclose the Confidential Information pursuant to clause 2.9.10, the Receiving Party:

23          SUPPLIER'S  WARRANTIES

23.1       The Supplier represents and warrants that it shall for the duration of this Agreement: (i) use adequate numbers of qualified Staff with suitable training, education, experience, knowledge and skill to perform the Services; (ii) use and adopt any standards and processes required under the Contract Documents; (iii) provide the Services with promptness and diligence and in a workmanlike manner and in accordance with the practices and reasonable professional standards used in well-managed operations performing services similar to the Services; (iv) provide and maintain such records as is authored by or on behalf of the Supplier so that it: (a) accurately reflects the operations and capabilities of any corresponding Services; (b) is accurate, complete and written in a manner easily understood by Foskor; and (c) is promptly updated from time to time to reflect any changes; and (v) have sufficient resources, such as vehicles, equipment and personnel to provide the Services. 

23.2        The Supplier warrants that it is able, competent and capable to perform the Services and that it has fully satisfied itself with the Services required by Foskor as contained in the Tender Documents and set out in the Contract Documents.

23.3        The Supplier warrants that the Fees and Charges tendered and set out in the Contract Documents are reasonable and accurate to enable it to perform and that no additional Fees and Charges will be made. 

23.4        The Supplier represents and warrants that it shall at all times use its best efforts to perform the Services in the most cost-effective manner consistent with the level of quality and performance required under the Contract Documents.

23.5        The Supplier represents and warrants that it shall: (i) at all times perform its responsibilities under the Contract Documents in a manner that does not infringe, or constitutes an infringement or misappropriation of, any Intellectual Property or other proprietary rights of any third party; and (ii) has the rights required to meet its obligations under clause 20.

23.6       The Supplier represents and warrants that it shall at all times ensure that the Services are performed in compliance to any relevant Act or section of the Act or Applicable Specifications or standards, regulations, notice or directive which apply to Services generally.

23.7       The Supplier represents and warrants that it: (i) is duly authorised enter into this agreement and to render Services; (ii) has all the necessary licences, certificates, authorisations and consents or approvals required under the laws of the Republic of South Africa or under any other applicable jurisdiction for the provision of the Services; and (ii) shall comply with all legal requirements and with the terms and conditions of all licences, certificates, authorisations and consents or approvals required for the provision of the Services.

23.8      The Supplier warrants that it is and will remain for the duration of this Agreement, fully cognisant of and compliant with any relevant legislative or regulatory requirements and/or rulings or codes of practice of any competent authority or industry body that has jurisdiction over the provision of or is relevant to the Services under the Contract Documents (hereinafter referred to as a "Regulatory Requirement"). The Supplier shall promptly identify and notify Foskor of any relevant changes in law, legislative enactments and/or regulatory requirements and rulings or codes of any competent authority or industry body relating to a Regulatory Requirement that may relate to or have an impact on the Supplier's provision of the Services. The Supplier and Foskor shall co-operate to identify the impact of such changes on the provision of the Services by the Supplier. The Supplier acknowledges that where a Regulatory Requirement requires changes to be effected to the Services, the Supplier shall carry out all such changes at no additional cost to Foskor. The Supplier shall be responsible for any fines and penalties arising from any non-compliance with any law, legislative enactment or regulatory requirement, code or ruling of any competent authority or industry body relating to its failure to adhere to a Regulatory Requirement in rendering the Services to Foskor.

 

24        INDEMNITIES

24.1     Without in any way detracting from the rights of Foskor in terms of the Contract Documents, the Supplier hereby indemnifies and holds the Foskor harmless from any and all Losses which may be suffered as a result of any breach of professional duty and/or breach of the provisions of the Contract Documents by the Supplier or its Staff.

24.2     Without in any way detracting from the rights of the Supplier in terms of the Contract Documents, Foskor hereby indemnifies and holds the Supplier harmless from any and all Losses which may be suffered as a result of any breach of the provisions of the Contract Documents by Foskor or its Staff.

24.3     Indemnitor hereby indemnifies and holds Indemnitee harmless from any and all Losses arising from, or in connection with, any claim or action arising from Indemnitor's breach of any obligation with respect to Confidential Information.

 

25        LIABILITY OF SUPPLIER FOR DIRECT

25.1     Foskor shall be entitled to claim for any and all Losses which constitute direct damages which are as a result of the Services.

25.2     All Losses which arise out of their dishonesty or gross negligence regardless of whether such Losses arise out of contract or delict.

26        INSURANCE

26.1.    Without in any way limiting the obligations, warranties, liabilities and responsibilities of the Supplier in terms of this Agreement or absolving the Supplier from such obligations, warranties, liabilities and responsibilities, the Supplier shall procure and maintain (at its cost) for the duration of this Agreement adequate insurance cover relevant to Service/s to be performed by the Supplier in terms of this Agreement.

26.2.   The Supplier indemnifies and holds harmless Foskor against all costs and expenses that Foskor may incur as a result of the Supplier's non-compliance with the Compensation for Occupational Injuries and Diseases Act, No 130 of 1993 

27       TERMINATION

27.1    If either Party commits a breach of a Contract Document and/or breaches its professional duty and fails to remedy such breach within 14 (fourteen) days of notice thereof from the other, the notifying Party shall be entitled, in addition to any other rights and remedies that it may have in terms of the Contract Documents or otherwise, to terminate this Agreement upon written notice to the other, without prejudice to any claims which such Party may have for damages against the other. In the case of a material breach by Foskor, the Supplier shall be paid for work already performed and signed off by Foskor's responsible engineer in accordance with the Agreement up to date of termination The aforementioned shall be the full damages which the Supplier shall be entitled to and no other damages shall be claimable whatsoever. 

27.2    If (i) a Causal Event occurs in respect of the Supplier or (ii) the Supplier fails to adhere to any legal requirement or breaches any term or condition of any licence held by Foskor, authorisation or consent required by Foskor to conduct business operations which is outsourced to the Supplier as outlined in Contract Documents and which failure or breach Foskor, in its sole and reasonable  discretion, considers to be detrimental to Foskor for sound business reasons; then Foskor shall be entitled, but not obliged, to terminate this Agreement on written notice to the Supplier, in which event such termination shall be without any liability other than in respect of work already performed in accordance with the Agreement up to date of termination to Foskor and without prejudice to any claims which Foskor may have for damages against the Supplier. The Supplier shall be entitled, but not obliged, to terminate this Agreement with immediate effect on written notice to Foskor in the event that Foskor is provisionally or finally liquidated or placed under curatorship or judicial management.

 

28      TERMINATION FOR CONVENIENCE

Foskor may terminate this Agreement in whole or in part for convenience and without cause at any time by giving the Supplier at least 90 (ninety) days prior written notice designating the termination date. Foskor shall have no liability to the Supplier with respect to such termination other than in respect of work already performed in accordance with the Agreement up to date of termination.

 

29        FORCE MAJEURE

29.1     No Party shall be liable to the other for any Losses which are a result of any default or delay in the performance of its obligations under the Contract Documents if and to the extent such default or delay is caused, directly or indirectly, by: forced plant shut downs or stoppages or orders suspending of operations or orders by regulatory authorities or breakdowns, fire, flood, earthquake, elements of nature or acts of God riots, civil disorders, rebellions or revolutions in any country or any other cause beyond the reasonable control of such Party;

29.2     If any event under clause 29.1 substantially prevents, hinders, or delays performance of the Services necessary for the performance of the Foskor's functions reasonably identified by Foskor as critical for more than 3 (three) consecutive days, then at Foskor's  option: (i) where the nature of the Services permit, Foskor may procure such Services from an alternate source on behalf of the Supplier, and the Supplier shall pay the alternate source for such Services for so long as the delay in performance shall continue; or (ii) Foskor may terminate the Contract Documents, or any portion thereof affected by the force majeure, without liability and, to the extent applicable, the fees and charges payable under the Contract Documents shall be equitably adjusted to reflect those terminated Services. The Supplier shall not have the right to any additional payments from Foskor for costs or expenses incurred by the Supplier as a result of any force majeure occurrence.

30        DISPUTE RESOLUTION

Any dispute arising from any of the Contract Documents shall be subject to the following dispute resolution procedures -

30.1     Prior to the initiation of formal dispute resolution procedures, the Parties shall first attempt to resolve their dispute informally as follows -

30.1.1  Upon the written request of a Party, any dispute, which arises between the Parties relating to or arising out of the Contract Documents, including the validity, implementation, execution, interpretation, rectification, termination or cancellation of any of the Contract Documents, shall be referred to a joint committee consisting of two designated representatives of either Party. The designated representatives shall meet as often as the Parties reasonably deem necessary in order to gather and furnish to the other all information with respect to the matter in issue which the Parties believe to be appropriate and germane in connection with its resolution. The designated representatives shall discuss the problem and attempt to resolve the dispute, without the necessity of any formal proceeding, within 14 (fourteen) days of the dispute having been referred. During the course of discussion, all reasonable requests made by one Party to another for non-privileged information, reasonably related to this Agreement, shall be honoured in order that each of the Parties may be fully advised of the other's position. The specific format for the discussions shall be left to the discretion of the designated representatives.

30.1.2   Formal proceedings for the resolution of a dispute may not be commenced until the earlier of: (i) the designated representatives concluding in good faith that an amicable resolution through continued negotiation of the matter does not appear likely; or (ii) the expiry of a period of 14 (fourteen) days after the initial written request referred to in clause 30.1.1 (this period shall be deemed to run notwithstanding any claim that the process described in clause 30.1.1 was not followed or completed).

30.1.3   Proceedings in terms of this clause 30.1 shall not be construed to prevent a Party from instituting, formal proceedings earlier to avoid the expiration of any applicable limitations or prescription period, or to apply to court for summary judgement where a claim is liquidated or to preserve a superior position with respect to the enforcement of a Party's rights or other creditors.

30.2     If the Parties are unable to resolve any dispute in the manner contemplated by clause 30.1, then subject to clause

30.2.1, such dispute shall on written demand by either Party to the dispute be submitted to arbitration at the Arbitration Foundation of Southern Africa, in Sandton and in accordance with the rules thereof by an arbitrator agreed on by the Parties or should the Parties fail to agree an arbitrator within 10 (ten) days after arbitration has been demanded, the arbitrator shall be nominated at the request of any Party to the dispute by the Arbitration Foundation of Southern Africa. The arbitration shall be held in the English language.

30.2.1  The following shall apply to the arbitration: (i) the Parties shall request that the arbitrator commence the arbitration within 21 (twenty one) days and proceed as if time is of the essence in the arbitration proceeding. The Parties shall request that the arbitrator render his or her decision within 14 (fourteen) days following the conclusion of the hearing. Recognising the express desire of the Parties for an expeditious means of dispute resolution, the arbitrator shall limit or allow the Parties to expand the scope of discovery as may be reasonable under the circumstances; (ii) the Parties undertake not to withhold their consent to join another party to the Arbitration; and (iii) the Parties irrevocably agree that the submission to arbitration is subject to the Parties' rights of appeal. Any Party may appeal the decision of the arbitrator within a period of 20 (twenty) days after the arbitrator's ruling has been handed down by giving written notice to that effect to the other Party to the arbitration. The appeal shall be dealt with in accordance with the rules of the Arbitration Foundation of Southern Africa by a single arbitrator appointed by the Arbitration Foundation of Southern Africa.

30.2.2  The decision of the arbitrator shall be binding on the Parties to the arbitration after the expiry of the period of 20 (twenty) days from the date of the arbitrator's ruling if no appeal has been lodged by any Party or upon the issue of determination by the appeal panel, as the case may be. A decision, which becomes final and binding in terms of this clause 30.2.2 may be made an order of court at the instance of any Party to the arbitration.

 30.3  Each Party agrees to continue performing its obligations under the Contract Documents while any dispute is being resolved except to the extent the issue in dispute precludes performance (dispute over payment shall not be deemed to preclude performance).

30.4  The Parties shall use commercially reasonable efforts to resolve disputes arising under the Contract Documents as rapidly as possible.

30.5  This clause 30 shall not preclude Foskor from applying for the granting of summary judgment (in cases of liquidated claims) as contemplated in clause 30.1.3 above or either Party from seeking urgent relief from the High Court of South Africa or any other competent organs of state created for the specific purpose of regulating the business or industry activities in which the Parties are engaged.

30.6  Any dispute resolution or arbitration process under this clause 30 shall be conducted in camera and the Parties shall treat as confidential and not disclose to any third party the existence of the dispute, details of the dispute, the conduct of the informal or formal dispute resolution proceedings or the outcome of the dispute resolution proceedings, without the written consent of the other Party provided that the Parties shall be entitled to disclose such information to such persons as are necessary to enable them to institute or defend their case.


31        NOTICES AND DOMICILIUM

31.1     Foskor select the address appearing below respectively as addresses for the purposes of receiving notices as contemplated in this clause 31 and select as its domicilia citandi et executandi the physical addresses appearing herein. The addresses and/or facsimile numbers may be substituted by notice given as herein required. The Supplier's domicilia citandi et executandi shall be stipulated on the Letter of Award and shall be the address where all notices as contemplated herein shall be sent and shall not be a post box.

31.2    The Parties may agree in writing to an address where correspondence relating to the Service/s at the division where the Service/s are rendered are to be received but no legal notice, process or demand may be send to any address other than the domicilia citandi et executandi.   

31.2.1   Foskor (Pty) Ltd: 
             Block G
             Riverview Office Park
             Janadel Avenue
             Midrand
             1685 
            Tel: 011 347 0600
            Fax: 011 347 0640

Supplier:

 ……………………………….

 ……………………………….

 ………………………………

………………………………

 ………………………………

31.5    The Parties record that whilst they may correspond via email during the currency of this Agreement for routine operational reasons, no formal consent or approval or notice or demand or request required in terms of the Contract Documents may be given or concluded via email. The provision of the Electronic Communications and Transactions Act, No. 25 of 2002 is specifically excluded from this agreement. 

31.6   All notices relating to the Contract Documents shall be given by the sender's service manager for that specific Service/s and addressed to the addressee's service manager or responsible engineer or employee for that Service/s. A notice given by or addressed to any Staff of either Party of equivalent status to those persons referred to in clause 31.6 shall be deemed to be given by or addressed to a service manager as the case may be. Any other purported notice shall be deemed void.

31.7   Notwithstanding the aforegoing, any notice given in writing, including one sent by data message, actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause 31.

 

32       GENERAL

32.1    The Contract Documents shall be binding on the Parties hereto. The Supplier shall not be entitled to assign or otherwise transfer the benefit or burden of all or any part of the Contract Documents without the prior written consent of Foskor.

32.2    The Supplier may not sub‑contract its obligations under the Contract Documents without the prior written consent of Foskor. Should Foskor consent to such appointment, the Supplier shall at all times be responsible to Foskor for fulfilment of all the Supplier's obligations under the Contract Documents and remain Foskor's sole point of contact regarding the Services, including with respect to payment. No obligation shall arise between Foskor and any sub-contractor, save for the correct performance of Services in terms of the Contract Documents.
 

32.3      Foskor shall have the right during the continued duration of this Agreement to revoke its approval of an Authorised Sub-Contractor and direct the Supplier to replace such Authorised Sub-Contractor upon 30 (thirty) days' notice if the Authorised Sub-Contractor's performance is materially deficient, or bona fide doubts exist concerning the Authorised Sub-Contractor's ability to render future performance because of changes in the ownership, management, and/or financial condition of the Authorised Sub-Contractor, or there have been material misrepresentations regarding the Authorised Sub-Contractor.

32.4     Neither Party shall without the prior written consent of the other Party, either during, or within 24 (twenty four) months after termination or expiration of this Agreement, solicit for employment, whether directly or indirectly, any person who, at any time during the duration of this Agreement, was a member of either Party's Staff who was directly involved with any activity relating to the Contract Documents, provided that the provisions of this clause 32.4 shall not apply and Foskor shall be entitled to employ the Supplier's  Staff if this Agreement is terminated pursuant to clauses 27.1, 27.2 and 30, and the Supplier shall be entitled to employ the Customer's Staff if this Agreement is terminated pursuant to clause 28.

32.5      Should any of the terms and conditions of the Contract Documents be held to be invalid, unlawful or unenforceable, such terms and conditions shall be severable from the remaining terms and conditions which shall continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the Parties agree to negotiate an amendment to remove the invalidity.

32.6      The Supplier shall not make or issue any formal or informal announcement (with the exception of stock exchange announcements), advertisement or statement to the press in connection with the Contract Documents or otherwise disclose the existence of the Contract Documents or the subject matter thereof to any other person without the prior written consent of Foskor. No documents in possession of the Supplier or photos taken of Foskor's plant or mine may be disseminated or released to any third party without the prior written consent of Foskor.
 

32.7      No change, waiver or discharge of the terms and conditions of the Contract Documents shall be valid unless in writing and signed by an authorised representative of the Party against which such change, waiver or discharge is sought to be enforced, and any such change, waiver or discharge will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party hereto in exercising any right, power or privilege under the Contract Documents will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. For the purposes of this clause 32.7, writing excludes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No. 25 of 2002 and signing means the physical act of writing a person's name in a distinctive manner as a form of identification and excludes any electronic signature or advanced electronic signature as such terms are defined in the Electronic Communications and Transactions Act, No. 25 of 2002 and "signature" shall have a corresponding meaning;".

32.8     Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, or similar action by either Party is required under the Contract Documents, such action shall not be unreasonably delayed or withheld. An approval, acceptance, consent or similar action by a Party under the Contract Documents shall not relieve the other Party from responsibility for complying with the requirements of the Contract Documents, nor shall it be construed as a waiver of any rights under the Contract Documents, except as and to the extent otherwise expressly provided in such approval, acceptance or consent.

32.9    The Parties agree that this Agreement and any Contract Document concluded in terms hereof shall not be valid unless signed by the authorised signatory of the Supplier. The Supplier's company secretary shall upon request furnish Foskor with such documentation as may reasonably be required by Foskor to establish the authority of the proposed authorised Supplier signatories.

32.10  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same Agreement, as the case may be, as at the date of signature of the Party last signing one of the counterparts. The Parties undertake to take whatever steps may be necessary to ensure that each counterpart is duly signed by each of them without delay.

32.11  Subject to clauses 27 and 30.2, the parties hereto hereby consent and submit to the jurisdiction of the Southern Gauteng High Court of the Republic of South Africa in any dispute arising from or in connection with this Agreement.

32.12  The Contract Documents will be governed by and construed in accordance with the law of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law.

32.13  The Contract Documents constitute the whole of the agreement between the Parties relating to the subject matter hereof and no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the Parties hereto or their duly authorised representatives having regard to clause 32.7. Any document executed by the Parties purporting to amend, substitute or revoke this Agreement or any of the Contract Documents or any part thereof, other than as provided for herein, shall be titled an "Addendum" to the applicable Contract Document and assigned a sequential number to be included in the title. All such duly executed addenda shall constitute Contract Documents.

32.14  The Parties agree that there are no other collateral terms or conditions to these Contract Documents, whether oral or written.

32.15  Except as provided in clause herein, in the event of a conflict between the documents comprising the Contract Documents, such conflict shall be resolved in accordance with the order of precedence (in descending order of priority) as follows (i) this Agreement; (ii) any annexe and/or schedules to this Agreement; (iii) the Tender Documents.

32.16  The Parties warrant and acknowledge that the relationship between them is not in the nature of a partnership and that neither Party is in any manner entitled to make or enter into binding agreements of any nature on behalf of the other Party.

32.17  Any provision of the Contract Documents which contemplates performance or observance subsequent to any termination or expiration of the applicable Contract Documents shall survive any termination or expiration of the applicable Contract Documents and continue in full force and effect.

32.18  Each Party agrees that, in its respective dealings with the other Party under or in connection with the Contract Documents, it shall act in good faith.

32.19. Each Party shall bear and pay its own costs of or incidental to the drafting, preparation and execution of the Contract Documents.