1. CONSTRUCTION OF CERTAIN REFERENCES
1.1 In this Agreement, unless the context otherwise requires:
a) b) c) d) e) f) g) h) i) j) Any reference to a “person” includes an individual, company, corporation, firm, partnership, joint venture,
association, organisation or trust (in each case whether or not having separate legal personality);
References to any statute or statutory provisions include a reference to those provisions as amended or
reenacted or as their application is modified by other provisions from time to time and any reference to a
statutory provision shall include any subordinate legislation made from time to time under that provision;
References to “this Agreement” or to any other agreement or document referred to in this Agreement mean
this agreement or such other agreement or document as amended, varied, supplemented, modified or
novated from time to time;
References to Clauses and Schedules are references to Clauses and Schedules of and to this Agreement;
References to any party include its successors and permitted assigns;
The word “including” means “including without limitation”;
References to the masculine or the feminine include the other gender;
References to the singular form shall include the plural and references to the plural form shall include the
singular
The eiusdem generis rule shall not apply and accordingly, whenever a provision is followed by the word
“including” and specific examples, such examples shall not be construed so as to
limit the ambit of the provision concerned.
2. HEADINGS
2.1 The headings and sub-headings are inserted for convenience only and shall not affect the construction of this
Agreement.
3. PROVISION OF SERVICES
3.1 In providing the Services, the Business shall, and where appropriate shall ensure that any officer, employee,
agent or subcontractor providing the Services:
a) b) c) Use the necessary level of care, skill and diligence required in accordance with the best practice in the
industry in accordance with all laws, regulations and standards with which the Business is legally required to
comply;
Use personnel who are suitably skilled and experienced to perform the tasks assigned to them; and
Ensure that the manner in which it performs or provides the Services and or Deliverables does not adversely
affect the name, trading image, reputation or business of Client.
3.2 For the purposes of the sourcing and purchasing of materials and services for the delivery of goods and services
and any other related activities which are necessary for the provision of the services under this agreement,
the Business shall at all times act as a principal and not as an agent of Client.
4. COST ESTIMATES AND APPROVAL PROCESS
4.1 Before executing any service and or deliverable, the Business shall present Client with a Cost Estimate and
obtain the Client’s approval thereof.
4.2 The Cost Estimate shall provide the relevant details, hours and rates being charged and will include any
applicable taxes, duties and or insurance charges.
4.3 In preparing a Cost Estimate the Business will use its standard rates for all services.
4.4 The following items will be billed to Client on a Cost Estimate basis:
4.5 The Cost Estimate represents the Businesses’ best estimate, based on information at hand, as to the likely costs
so as to fulfil the Clients requirements as briefed:
a) The Cost Estimate is not a fixed price quote;
b) The Business is not authorised to incur costs which exceed the aforementioned approved Cost Estimates
value by more than 10% (ten percent) unless such variances have been approved by the Client;
c) In instances where the actual costs do exceed those as per the approved Cost Estimate by more than 10%, the
Business will provide the Client with an explanation, detailing the nature and reasons for the cost overrun;
d) Such approval must be in writing and will relate to an additional Cost Estimate being issued by the Business
for the cost overrun. Such supplementary Cost Estimates will be deemed to be part of and fall under the
original Purchase Order that was issued for the original Cost Estimate;
e) If the actual costs exceed the cost estimate but is within the 10% variance the Business will raise an invoice for
the difference;
4.6 Notwithstanding that the Business will enter into all contracts, as a principal at law, Client hereby indemnifies
the Business against all reasonable costs and expenses which it will incur, on behalf of Client, in terms of such
contracts with third parties, provided that the appropriate approval has been given by Client to commence
with the contract and provided further that such cost and expenses have not arisen as a result of the
Business’s negligence or wilful misconduct.
5. INVOICING
5.1 The Business shall submit a tax invoice for Goods and Services provided to the Client no later than the 5th day
of the calendar month, immediately following, the calendar month in which the Goods and Services were
provided or performed.
6. PAYMENT
6.1 All payments shall be discharged as agreed from time to time following proper and timeous delivery of each
invoice and statement unless a necessary payment from Client is delayed for reasons beyond the control of
the Business.
6.2 All payments are due on 30 days from date of invoice basis if credit terms have been extended, otherwise all
amount will be Payable on Presentation of the invoice.
6.3 VAT shall be included therein.
7. INDEMNITY
7.1 The Client hereby indemnifies the Business against any and all claims of intellectual property rights
infringements arising out of the Business’s adherence to the Client’s instructions which do not involve items
of the Business origin/design or any of its sub-contractor’s origin, design or selection;
7.2 Without prejudice to any other rights or remedies of the Business, the Client shall indemnify Business against
any loss, damage, claim, action or expense (including legal expenses) which the Business suffers as a result of
any of the following:
a) A negligent breach of this Agreement or a Purchase Order by the Client;
b) Any warranty or representation, whether express or implied, by the Client under this Agreement that leads to
the Business suffering a direct loss or damage due to such warranty.
7.3 The Client will promptly inform the Business of any claims in respect of patent rights, copyrights, registered
designs or other intellectual property rights and shall make no settlement thereof without giving the Business
prior notice of the claims and a reasonable opportunity to deal with the same.
8. CONFIDENTIALITY
8.1 8.2 All Confidential Materials shall be kept and maintained strictly confidential and not be imparted on an
unauthorized basis to third parties other than for the purpose of the contract.
Confidential Materials shall not be copied, transcribed, obstructed, reproduced or otherwise distributed,
whether physically, electronically or otherwise other than in the performance of any Contract without
limitation this includes any accounting information including purchase orders, invoices, statements and
contracts as approved by the Business. Accordingly, any matter or query arising shall be directed to the
Business.
9. FORCE MAJEURE
9.1 Neither party shall be liable to the other for any delays in performing or for the failure to perform any of its
obligations or duties under this Agreement or under any Purchase Order placed hereunder solely as a result of
any causes or contingencies beyond such party’s reasonable control and without its fault, including fires,
storms, floods, accidents, acts of God, acts of terrorism, war, insurrection, or governmental action, orders,
regulations or restrictions (each, a “Force Majeure Event”).
9.2 If either party is affected by a Force Majeure Event, the party that has been so affected shall promptly give
notice to the other party, explaining the nature and expected duration of the Force Majeure Event, and shall
do everything reasonably possible to resume performance of this Agreement and the affected Purchase Order
in accordance with its terms as promptly as possible.
9.3 If the period of non-performance exceeds 30 days from the receipt of notice of the Force Majeure Event, the
party whose ability to perform has not been so affected may, by giving written notice, terminate this
Agreement and/or the affected Purchase Order without further liability to the other party.
10. MISCELLANEOUS CONDITIONS
10.1 All agreed Terms and Conditions together with Undertakings as set out herein favour the Business with a
continuing right in relation to all Contracts as may be entered into in the future between the Business and the
Client.
10.2 This constitutes the entire agreement and no variation or modification thereof will be of any force or effect save
where reduced to writing and signed by both parties.
10.3 Each party shall do everything reasonably requested by the other party to give effect to this Agreement and the
transactions contemplated by it.
10.4 Each Clause of this Agreement, and each part of each Clause, shall be read as a separate and severable provision.
10.5 If any provision is found to be void or unenforceable, that provision may be severed and the remainder of the
Agreement shall be interpreted as if the severed provision never existed
10.6 This Agreement is governed by the laws of South Africa. Both parties to this Agreement irrevocably and
unconditionally submits to the jurisdiction of the courts of South Africa for determining any dispute.
10.7 This Agreement and each Purchase Order may only be changed by written agreement between the parties.
10.8 Nothing contained in this Agreement or any Purchase Order placed hereunder shall constitute or be deemed to
constitute a partnership between the parties and no party shall hold himself out as an agent for the other
party except with the prior consent of such other party.
10.9 This Agreement may be executed and delivered, including by facsimile transmission, in any number of
counterparts, all of which shall be considered one and the same agreement and shall become effective when
one or more counterparts have been signed by either of the parties and delivered to the other party, it being
understood that both parties need not sign the same counterpart.
10.10 Each party shall pay its own costs in respect of the negotiation and drafting of this agreement.
