standard terms and conditions
POPI ACT AGREEMENT DECLARATION
All business is undertaken in terms of the Company’s Standard Trading Terms and Conditions. A copy of the Company’s Standard Trading Terms and Conditions is available on request.
You hereby declare and confirm that you, as the person/entity/body/individual/company whose is providing information and hereinafter collectively referred to as the “client”, do hereby irrevocably agree and understand that any/all information supplied or given to the service provider, is done so in terms of the below terms and conditions and in terms of this agreement and consent declaration
- In this Agreement, unless inconsistent with or otherwise indicated by the context –
1.1.1. “This Agreement” means the Agreement contained in this document;
1.1.2. “The Company/Service provider” means ParaMatic (Pty) Ltd (“Company”) and includes its affiliated, holding and subsidiary companies;
- “Confidential information” includes, but is not limited to:
1.1.1. any information in respect of know-how, formulae, processes, systems, business methods, marketing methods, promotional plans, financial models, inventions, long-term plans and any other information of the client and the company in whatever form it may be;
1.1.2. all internal control systems of the client and the company;
1.1.3. details of the financial structure and any other financial, operational information of the client and the company; and
1.1.4. any arrangements between the client and the company and others with whom they have business arrangements of whatsoever nature, all of which the client and the company regards as secret and confidential.
- “Personal information” means personal information as defined in the Protection of Personal Information Act adopted by the Republic of South Africa on 26 November 2013 and includes but is not limited to:
1.1.1. information relating to the race, gender, sex, pregnancy, marital
status, national, ethnic or social origin, colour, sexual orientation, age,
physical or mental health, well-being, disability, religion, conscience,
belief, culture, language and birth of the person;
1.1.2. information relating to the education or the medical, financial,
criminal or employment history of the person;
1.1.3. any identifying number, symbol, e-mail address, physical address,
telephone number, location information, online identifier or other particular
assignment to the person;
1.1.4. the biometric information of the person;
1.1.5. the personal opinions, views or preferences of the person;
1.1.6. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
1.1.7. the views or opinions of another individual about the person; and
1.1.8. the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
- “The effective date” means the date of signature of this Agreement’;
- “The parties” means the parties as described hereinabove;
- “Divulge” or “make use of” means to reveal, make known, disclose, divulge, make public, release, publicise, broadcast, communicate or correspond or any such other manners of divulging of any information.
- ‘‘Processing’’ means any operation or activity or any set of operations, whether or not by automatic means, concerning personal or any information, including but not limited to:
1.1.1. the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use;
1.1.2. dissemination by means of transmission, distribution or making available in any other form; or
1.1.3. merging, linking, as well as restriction, degradation, erasure or destruction of information.
POPI” means the Protection of Personal Information Act adopted by the Republic of South Africa on 26 November 2013 and as amended from time to time.
WHEREAS IT IS AGREED THAT
All parties agree that they will comply with POPI regulations and process all the information and/or personal data in respect of the services being rendered in accordance with the said regulation and only for the purpose of providing the Services set out in the agreement to provide services. The Company, all the parties to this agreement, the Company’s employees and the Client’s employees and any subsequent party/parties to this agreement acknowledge and confirm that:
One or more of the
parties to this agreement, will possess and will continue to possess
information that may be classified or maybe deemed as private, confidential or
as personal information.
Such information may be
deemed as the private, confidential or as personal information in so far as it
relates to any party to this agreement.
Such information may
also be deemed as or considered as private, confidential or as personal
information of any third person who may be directly or indirectly associated
with this agreement.
Further it is
acknowledged and agreed by all parties to this agreement, that such private,
confidential or as personal information may have value and such information may
or may not be in the public domain. For purposes of rendering services on
behalf of the client, the service provider and any party associated with this
agreement and/or any subsequent or prior agreement that may have been/will be
entered into, irrevocably agree that “confidential information” shall also
include inter alia and shall mean inter alia:
all information of any
party which may or may not be marked “confidential,” “restricted,”
“proprietary” or with a similar designation;
where applicable, any
and all data and business information;
where applicable the
parties may have access to data and personal and business information regarding
clients, employees, third parties and the like including personal information
as defined in POPI regulation; and
confidential knowledge, know-how, technical information, data or other
proprietary information relating to the client/service provider or any third
party associated with this agreement and (including, without limitation, all
products information, technical knowhow, software programs, computer processing
systems and techniques employed or used by either party to this agreement
and/or their affiliates.
By signature hereunder, all parties irrevocably agree to abide by the terms and conditions as set out in this agreement as well as you irrevocably agree and acknowledge that all information provided, whether personal or otherwise, may be used and processed by the service provider and such use may include placing such information in the public domain.
Further it is specifically agreed that the service provider will use its best endeavours and take all reasonable precautions to ensure that any information provided, is only used for the purposes it has been provided. It is agreed that such information may be placed in the public domain and by signature hereunder, all parties acknowledge that they have read all of the terms in this policy and that they understand and agree to be bound by the terms and conditions as set out in this agreement.
It is confirmed that by submitting information to the service provider, irrespective as to how such information is submitted, you consent to the collection, collation, processing, and storing of such information and the use and disclosure of such information in accordance with this policy.
standard terms and conditions
introduction and definitions
- The terms and conditions of purchase and sale set out herein (“Terms and Conditions”) shall apply to all contracts for the procurement and supply of goods (“the Goods”) and services (“the Services”) by ParaMatic (Pty) Ltd (“ParaMatic”) to the Customer. For any variation to these conditions to be effective, the variation must be in writing and signed by both parties.
- “Purchase Order” means the request or order from the Customer to ParaMatic to supply goods and/or services and which references these terms and conditions, together with all documents attached to these terms and conditions or incorporated into these terms and conditions by reference.
- “The Goods” means all goods, equipment, plant, machinery, vehicles, materials and similar to be supplied by ParaMatic in terms of the Purchase Order.
- “The Services” means the services to be executed by ParaMatic in accordance with the Purchase Order.
- “Intellectual Property Rights” means all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents including all issued patents and pending applications therefore and patents which may be issued therefrom (including divisions, reissues, re-examinations, continuations and continuations-in-part); trade-marks; copyrights; industrial design rights; rights pertaining to trade secrets and confidential information; publicity rights; personality rights; moral rights; and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing.
Terms of supply
- ParaMatic must supply the Goods and/or perform the Services in accordance with the Purchase Order. If any delay in delivering the Goods or performing the Services occurs or is foreseen, ParaMatic must immediately notify the Purchaser of the cause and anticipated length of the delay.
- For the avoidance of doubt, clauses in these standard terms and conditions relating solely to:
- Services, will only apply to the extent that Services are described in the Purchase Order; and
- Goods, will only apply to the extent that Goods are described in the Purchase Order.
- Information and consultancy in relation to ParaMatic’s goods and services is provided as deemed appropriate from existing experience. Any values quoted as part thereof, especially performance data, represent average values which have been determined through experience under standard conditions. ParaMatic cannot assume any commitment for its products to precisely meet the quoted values and areas of application.
- ParaMatic undertakes:
- to treat as strictly confidential all Confidential Information;
- to use all reasonable steps to keep any Confidential Information which is in physical form (including electronic media) secure;
- not to directly or indirectly exploit for the benefit of ParaMatic or any other person Confidential Information for any reason whatsoever, other than as contemplated by the Contract; and
- not to at any time without the prior written consent of the Customer, publish, disclose or reveal any Confidential Information to any other person or party whatsoever, other than as may be required by law. The Customer reserves its rights in its Confidential Information and no rights or obligations other than those expressly stated herein, are granted or to be implied from this Contract. In particular, no licence is hereby granted, directly or indirectly, by the Customer to ParaMatic to use its Confidential Information, save where provided expressly in this Contract.
price and payment
- The price for the Goods and/or Services (“the Price”) shall be the price specified in the Purchase Order and shall be paid to ParaMatic in the amount as indicated therein.
- Unless expressly stated to the contrary in the Purchase Order the Price shall be exclusive of VAT and shall include standard packaging, delivery and installation (where applicable).
- Price amendments shall be subject to agreement and acceptance by the Company in writing. Should the Purchase Order be issued on a basis of “price to be advised or agreed” or “estimate price”, “subject to change” or any other similar description, the Purchase Order shall stipulate the agreed terms applicable in this respect.
- Unless otherwise expressly agreed, the prices are quoted ex works of ParaMatic using these Terms and Conditions. The Customer shall bear all additional freight costs, packing costs in excess of standard packing, public fees (including withholding taxes) and
- Payment shall be made by EFT into the account nominated in writing by ParaMatic in accordance with the payment terms stated in the Purchase Order. Payment due date will be indicated on the invoice. Payment shall be considered to have been made on the day the payable sum is received by ParaMatic. Bills of exchange and cheques shall not be deemed payment until after they have been honoured.
- Immediately upon default of payment – or from the due date, ParaMatic shall be entitled to demand default interest of 8 percentage points above the base lending rate p.a. ParaMatic reserves the right to claim a higher actual damage.
- Customers may only withhold or offset due payments against their own counter-claims if these are uncontested or have been found to be legally binding.
- Any of ParaMatic’s receivables shall be immediately payable in the event of a default in payment, a notice given in protest against a bill of exchange or suspension of the Customer’s payments, independent of the term of the bills of exchange which may have already been accepted. In any of these aforementioned cases, ParaMatic shall also be able to perform remaining deliveries only against advance payment or provision of security, and, if no such advance payment is made or security provided within a two-week time period, to cancel the contract without fixing another extension term. This shall not affect any further claims.
value added tax (vat)
- If VAT is payable on any amount, ParaMatic shall ensure that its invoice complies with the requirements of a tax invoice under the Value Added Tax Act No. 89 of 1991 (as amended). No payment shall be made on invoices not meeting this requirement and the Customer shall not be liable for interest for such non-payment.
- Should the Purchase Order be subject to zero-rated VAT, all relevant documentation will be required to be submitted to the South African Revenue Services (SARS) in order to comply with the requirements for applying the zero-rate to invoices.
rate of exchange
- Should the Purchase Order price comprise foreign and local content it will be as stated in the Purchase Order Data.
- The foreign currency portion of the Purchase Order price is subject to rate of exchange fluctuations between the specified foreign currencies. The rate of exchange will be determined by any forward exchange contracts concluded, or will be as follows:
- The actual rate of exchange applicable to the payment of the specified foreign currency paid by the Customer to its suppliers for the imported supplies portion of the Goods, will apply to an amount equal to such payment, payable by the Customer in terms of the Purchase Order, and the Customer shall furnish documentary proof of such rate of exchange and value; and
- At the rate stated in the Purchase Order data and will be applicable to the remainder of the specified foreign currency portion of the Purchase Order price. The Purchase Order price will be invoiced in the currency of the Purchase Order and no additional taxes will be added thereto.
- The Customer shall, at any time during the duration of the Purchase Order, obtain the rate of purchasing forward cover for the then remaining foreign currency portion of the Purchase Order price. The Customer shall purchase such forward cover.
- In the event that payments, for which forward cover has been purchased, are delayed or advanced, the cost of variation of the forward cover purchased will be borne by the Party to whom such delay or advance is attributable.
- If there is no such Rate of Exchange stated in the Purchase Order Data, this clause is deemed not in use.
packing, protection and delivery of goods and/or services
- Unless otherwise expressly agreed, ParaMatic shall deliver ex works.
- Delivery periods shall only be binding if expressly agreed in writing. Delivery periods shall begin on the date of the order confirmation by ParaMatic barring all other terms have been met i.e., deposits and payments, however, in no case prior to settlement of all details relating to an order including the furnishing of any required official certificates. Delivery periods shall be deemed to be met on timely notification of readiness to ship if the goods cannot be dispatched in time through no fault of ParaMatic.
- With respect to delivery periods and dates, which are not expressly defined as fixed in the order confirmation, the Customer may, two weeks after expiry of such a delivery period or date, set an adequate grace period for delivery. ParaMatic may only be deemed to be in default after expiry of such a grace period.
- Without prejudicing ParaMatic’s rights from Customer’s default, delivery periods and dates shall be deemed to be extended by the period of time during which the Customer fails to comply with his obligations towards ParaMatic. In case ParaMatic does not comply with its obligations ParaMatic shall only be liable for all types of damages in accordance with these Terms and Conditions.
- ParaMatic reserves the right to carry out a delivery using its own delivery organisation.
- ParaMatic may perform partial deliveries and render partial services if such action would not unreasonably affect the Customer.
- The Customer may rescind the contract after two unsuccessful grace periods unless the hindrance is merely temporary in nature and a delay would not unreasonably affect the Customer.
- Any contractual or statutory right of a Customer to rescind the contract, which the Customer fails to exercise within a reasonable period of time set by ParaMatic, shall be forfeited.
- Where the Goods will be delivered by ParaMatic:
- Ownership of and risk in and to the Goods shall pass to the Company upon the physical delivery or the installation thereof, as the case may be, at the Company’s premises as set out in the Purchase Order. A Purchase Order shall not be considered fulfilled until the certificates of conformance/analysis and technical data sheets have been satisfactorily supplied with each delivery.
- In addition, for the passing of risk to take place, the following shall be required:
- in respect of the delivery of the Goods, the signature of an unendorsed delivery note by the Company; and
- in the case of the installation of the Goods, a written certification by the Company of the completion of the installation.
- Where the Goods will be collected by the Customer, ownership of and risk in and to the Goods shall pass to the Customer upon the physical collection thereof by the Customer.
- The Customer shall have the right to inspect the Goods and to measure progress on the execution of the Services at all reasonable times and to reject Goods and/or Services that do not comply with the terms of the Agreement. Any inspection, checking or approval by the Customer shall not relieve ParaMatic from any obligation under the Agreement.
- All Goods and/or Works shall be adequately and securely packed in such a manner as to prevent damage in transit, and the Purchase Order price shall be deemed to include the cost of all packing materials and containers, which shall become the property of the Customer.
- ParaMatic shall identify each and every package, bundle, container or article by means of either suitable labels securely attached thereto or indelible painting thereon, with a description of the Goods and/or Works, name of the Customer, Purchase Order number, and net mass of contents.
- If a shipment is delayed for reasons to be attributed to the Customer, the risk of accidental deterioration, loss and destruction shall pass to the Customer on notification of ParaMatic’s readiness to ship. Required storage costs after passing of risk shall be borne by the Customer. This shall not affect any other claims.
- If the Customer defaults in accepting, ParaMatic shall be entitled to claim refund of any expenditure associated therewith and the risk of accidental deterioration, loss and destruction shall pass to the Customer.
retention of title
- Delivered goods shall fully remain property of ParaMatic (goods sold subject to retention of title) until all receivables, on whatever legal grounds, have been fully paid up.
- In case of processing, combining or mixing of goods subject to retention of title with goods of the Customer, ParaMatic shall be entitled to co-ownership of the new property inasmuch as the invoiced value of goods sold with retention of title relates to the value of the other involved goods. Where ParaMatic co-ownership becomes null and void due to processing, combining or mixing with other goods, the Customer immediately assigns to ParaMatic those of his rights of ownership in the new property or compound matter which correspond to the amount of the value of goods subject to retention of title by ParaMatic. Customer shall also be responsible for holding such rights in safe custody on the behalf of ParaMatic and at Customer’s own expense. Any rights to co-ownership created as a result of such processing, combining or mixing shall be subject to these Terms and Conditions.
- The Customer may resell, process, combine or mix with other property, or otherwise integrate goods under retention of title in normal business operations, as long as the Customer is not defaulting. The Customer shall be prohibited from taking any other disposition regarding goods for which ParaMatic retains title. ParaMatic shall be promptly notified about any hypothecation or other seizure of goods under retention of title through a third party. All intervention costs will be charged to the Customer if and to the extent that they cannot be collected from such third party. If the Customer grants his buyer additional time for payment of the sales price, Customer shall reserve title in goods resold with retention of ParaMatic’s title under the same terms which ParaMatic has applied when delivering such goods with retention of title. The Customer shall be prohibited from any other kind of resale.
- The Customer shall immediately assign to ParaMatic any receivables resulting from a resale of goods initially sold with retention of ParaMatic’s title. These will be used to substitute the goods under retention of title as collateral of the equivalent amount. The Customer shall only be entitled and authorised to resell such goods if his receivables therefrom accrue to ParaMatic.
- If the Customer resells goods under retention of our title together with goods from other suppliers at a certain total price, the Customer shall assign to ParaMatic his receivables from such resale in the same amount as stated in the invoice for goods initially sold with retention of title by ParaMatic.
- If an assigned receivable is included into a current account, the Customer immediately assigns to ParaMatic that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.
- Until ParaMatic gives notice of revocation, the Customer shall be authorised to collect receivables assigned to ParaMatic. ParaMatic shall be entitled to such revocation if the Customer fails to meet his payment obligations under the business relationship with ParaMatic in due course. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify ParaMatic of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. ParaMatic reserves the right to personally advise the debtors of such assignment.
- If the value of the collateral deposited for the benefit of ParaMatic exceeds the amount of secured claims by a total of more than fifty (50) percent, the Customer shall be entitled to demand that ParaMatic insofar release securities of the choice of ParaMatic.
- If ParaMatic claims retention of title, this shall only be understood as rescind of the contract if expressly stated so by ParaMatic in writing. The Customer’s right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.
quality and specifications
- The Goods and/or Services executed must conform in all respects with the Customer’s specifications and other requirements or descriptions stipulated, and the Goods and/or Services must comprise new and unused materials of the most suitable grade, and workmanship must be of the best quality.
- The Customer shall inspect all materials and supplies to be incorporated in the Services and shall conduct a continuous program of quality control for the Goods and/or Services.
- The Customer shall make or cause to be made all tests required by the Purchase Order, and furnish the results of all inspections and tests. The Engineer’s Representative shall have the right to inspect the Goods and/or Services at the Customer’s premises prior to delivery of the Goods and/or Services in accordance with the Purchase Order.
- The Customer will ensure that in all respects the Goods and/or Works comply with all relevant requirements of any statute, statutory rule or order, or other instrument having the force of law, which may be in force when the Goods and/or Services are executed.
warranty and defects liability period
- ParaMatic hereby warrants that the Goods and/or Services supplied are in good order and condition and meet the specifications for which they are intended and this warranty shall endure for a period of 18 (eighteen) months from delivery of the Goods to Site or 12 (twelve) months from the date of completion of installation/commissioning, whichever is the earlier, in respect of the Services (“the Defects Liability Period”). This shall not apply to Customer’s claims for damages based on damages of body or health caused by a defect for which ParaMatic is responsible or claims for damages based on intentional or negligent conduct by ParaMatic
- The goods claimed to be defective shall be returned to ParaMatic for examination in their original or equivalent packaging. ParaMatic shall remedy defects if the warranty claim is valid and within the warranty period. It is at ParaMatic’s discretion whether ParaMatic remedies the defect by repair or replacement. ParaMatic shall only bear the costs necessary to remedy the defect.
- ParaMatic shall be entitled to refuse to remedy defects in accordance with ParaMatic’s statutory rights. ParaMatic may refuse to remedy defects if the Customer has not complied with ParaMatic’s request to return the goods claimed to be defective.
- The Customer shall be entitled to rescind the contract or reduce the contract price in accordance with his statutory rights, however, the Customer shall not be entitled to rescind the contract or to reduce the contract price, unless the Customer has previously given ParaMatic twice a reasonable period to remedy the defect which ParaMatic has failed to observe, unless setting of such a period to remedy defects is dispensable. In the event of rescission, Customer shall be liable for any intentional or negligent actions that cause destruction or loss of the goods as well as for failure to derive benefits from the goods.
- Any rights of the Customer to receive damages or compensation shall be governed by the provisions in section 10 of these Terms and Conditions.
- Specifications of ParaMatic goods, especially pictures, drawings, data about weight, measure and capacity contained in offers and brochures are to be considered as average data. Such specifications and data shall in no way constitute a quality warranty but merely a description or labelling of the goods.
- Unless limits for variations have expressly been agreed in the order confirmation, such variations shall be admissible that are customary within the trade.
- ParaMatic shall not accept any liability for defects in the goods supplied if they are caused by normal wear and tear. The Customer shall have no rights against ParaMatic in respect of defects in goods sold as lower-class or used goods.
- Any warranty shall be void if operating or maintenance instructions are not observed, if changes are made to deliveries or services, if parts are replaced or materials used that are not in accordance with the original product specifications by ParaMatic, unless the Customer can show that the defect in question resulted from another cause.
- The Customer shall be obliged to notify defects to ParaMatic in writing or via email.
- The limitation period for claims for defects shall be 12 months.
- In case of a breach of contractual obligations, defective deliveries or tortuous acts, this shall not apply to the Customer’s claims for damages based on damages of body or health caused by a defect for which ParaMatic is responsible or claims for damages based on intentional or negligent conduct. ParaMatic shall only be obliged to compensate damages or expenses – subject to any other contractual or statutory conditions for liability – if ParaMatic has acted intentionally or with gross negligence or in cases of minor negligence, if such negligence results in the breach of an essential contractual duty (a duty the breach of which puts the fulfilment of the purpose of the contract at risk). However, in case of minor negligence, ParaMatic’s liability shall be limited to typical damages which are foreseeable at the time of the conclusion of the contract.
- The liability of ParaMatic for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.
- The limitation period for claims against ParaMatic – based on whatever legal ground – shall be 12 months from the date of delivery to the Customer and in case of tortious claims, 12 months from the date the Customer becomes aware or could have become aware of the grounds giving rise to a claim and the liable person, had the Customer not been grossly negligent. The provisions in this clause shall neither apply in cases of intentional or gross negligent breaches of duty nor shall they apply in cases referred to in these Terms and Conditions.
- If the Customer is an intermediary seller of the goods obtained from ParaMatic and the final purchaser of the goods is a consumer, the limitation period for any action of recourse against ParaMatic by the Customer shall be the period specified by statute.
- The liability of ParaMatic for software supplied by ParaMatic shall be limited to liability for losses or alteration of data caused by the program; however, ParaMatic shall not be liable for any losses or alteration of data which could have been avoided by the Customer’s compliance with its duty to secure such data at appropriate intervals and at least once per day.
installation and commissioning of goods and/or services
- During the period of installation and commissioning as defined in the Scope of Works (if applicable), the Customer shall:
- Instruct the operating staff provided by the Customer and/or Mine Owner on the correct use and maintenance of the Goods and/or Services; and
- Provide all necessary qualified personnel, together with all requisite tools.
- If there is no installation and commissioning required in terms of this Purchase Order, this clause is deemed not in use.
- Customer is obliged to closely observe the documents accompanying the goods and to ensure the correct disposal of the goods in accordance with the applicable law.
regulations and health and safety
- The sale, resale and the disposal of goods and services including any associated technology or documentation shall be governed by and interpreted in accordance with the laws of the Republic of South Africa. as well as by the export control regulations of further countries. Any resale of goods to embargoed countries or to denied persons or persons that use or may use the goods for military purposes, ABC weapons or nuclear technology is subject to an official license. The customer declares with the purchase order conformity with such statutes and regulations and that the goods will not directly or indirectly be delivered into countries that prohibit or restrict the import of such goods. The Customer declares to have obtained all licenses required for export and import.
- The law which is to apply to the Purchase Order and under which the Purchase Order is to be construed, is the law of the Republic of South Africa, and any matter arising out of the Purchase Order, including but not limited to matters of interpretation or implementation, will be adjudicated by the South African Court having jurisdiction in respect thereof
- The Customer shall have the right, at its own discretion, to stop the Services whenever safety violations or conditions are observed which could jeopardise the well-being of personnel and/or the safety of equipment. The expense of any such stoppage shall be for Contractor’s account, if such stoppage is attributable to the Customer. The failure or refusal of the Customer to correct the observed violation or condition may result in the termination of the Contract, and/or the dismissal of those responsible for such failure or refusal from the Customer’s premises.
- Should the Customer be working on the Site for any reason, the Customer shall provide the necessary safety, health and environmental (SHE) management system in accordance with the applicable regulations as detailed therein, and shall also comply with the Employer’s Health and Safety policies herein specified.
- All personnel going onto the Project Site shall undergo an entry and exit medical if on Site for the number of days stated in the Contract Data and shall also attend a Site induction. The Customer shall provide all PPE and PPC pertaining to the Works.
- The Customer shall adhere to fair labour practices in connection with its employment of local labour for the Services.
- If necessary, in the discretion of the Customer, and at the cost of the Customer, the Customer shall accept such appointments in terms of the applicable Health and Safety legislation, in terms of all other health and safety legislation and in terms of any other determination by the Customer’s health and safety policies, as may be required for the execution of the Services.
- The Customer shall comply strictly with all National Acts, Provincial Ordinances and Acts, Municipal by-laws, and any other laws, regulations, directions, permissions and other requirements detailed therein which are applicable to the Customer’s execution of the Services, as amended from time to time.
- To the extent that the Health, Safety and Environmental statutory requirements applicable to the execution of the Works in the Country of Delivery are less onerous than those applicable to execution of similar works in South Africa, the Customer will be required (as a minimum) to comply with best practice requirements in relation to Health, Safety and protection of the Environment which would apply if the Works were executed in South Africa.
- The Customer shall comply with all laws, rules and regulations and all health and safety legislation applicable in the Country.
- Should the Engineer’s Representative require a variation to the Purchase Order, he shall notify the Customer of the nature and form of such variation within 7 (seven) days, or other such time period agreed between the Parties, after having received such notice, the Customer shall submit to the Engineer:
- Description of the Services to be executed as a consequence of such variation; and
- The Customer’s proposal for any necessary modification to the programme or to any of the Customer’s obligations under the Purchase Order; and
- The Customer’s proposals for adjustment to the Purchase Order price, if any.
- Following receipt of the Customer’s submission, ParaMatic shall, after due consultation with the Customer decide whether or not the variation shall be carried out. The purchase order may not be varied except by a written document signed by or on behalf of each of the parties.
- The Customer shall effect such insurances as necessary to cover the Goods and/or Services both in their own premises and also whilst in transit to the stated point of delivery. ParaMatic and the Customer shall effect such insurances as necessary to cover any works on Site, should they be applicable to this Purchase Order (available on request).
Where required, the Customer’s Certificate of Insurance Schedule is affected in the Scope of Works.
- Software programs will fully remain the property of ParaMatic. No program, documentation or subsequent upgrade thereof may be disclosed to any third party, without the prior written consent by ParaMatic, nor may they be copied or otherwise duplicated, even for the Customer’s internal needs apart from a single back-up copy for safety purposes.
- The Customer is granted a non-exclusive, non-assignable right to use the software, including any related documentation and updates, for no other purpose than that of operating the product, for which such software is intended. For programs and documentation created and delivered at the Customer’s request, ParaMatic shall grant that Customer single end user licences for non-exclusive non-assignable exploitation.
- Typically, no source programs are provided. This shall require a special written agreement in each particular case.
indusrial property rights, copyrights
- In the event of claims against the Customer because of breach of an industrial property right or a copyright in using deliveries or services supplied by ParaMatic in accordance with the contractually defined manner, ParaMatic shall be responsible to obtain the right for the Customer to continue using such deliveries or services, provided that the Customer gives immediate written notice of such third-party claims and ParaMatic rights to take all appropriate defensive and out-of-court actions are reserved. If, despite such actions, it proves impossible to continue using the deliveries or services supplied by ParaMatic under reasonable economic conditions, it shall be understood as agreed that ParaMatic may, at the discretion of ParaMatic, modify or replace the particular delivery or service for removal of a legal deficiency, or take back such delivery or service with refunding of the sales price previously paid to ParaMatic less a certain deduction to account for the age of the delivery or service in question.
- The Customer shall have no further claims alleging infringement of industrial property or copyrights provided ParaMatic has neither violated essential contractual duties nor intentionally or grossly negligently breached contractual duties. ParaMatic shall have no obligations in accordance with these Terms and Conditions in case breaches of rights are caused by exploiting the deliveries or services supplied by ParaMatic in any other manner than contractually defined or by operating these together with any other than ParaMatic deliveries or services.
- ParaMatic shall safeguard and keep confidential any and all information relating to the Customer and suppliers obtained by it or provided to it by the Customer in connection with this Agreement, and shall use such information only for the purposes of carrying out its obligations under this Agreement.
- The parties will hold in confidence and treat as secret all information of a confidential nature which is proprietary to a party (“the Confidential Information”) and which is disclosed to the other party pursuant to the Purchase Order.
- The obligations of confidentiality undertaken by the party in terms of the Purchase Order shall be continuing and, in particular, will survive the parties’ performance of the Purchase Order.
- The provisions of this clause shall be severable in the event that any of the provisions are held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable and the remaining provisions shall remain enforceable to the fullest extent permitted by law.
- These terms and conditions shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
- Should any of the clauses of these Terms and Conditions be wholly or partially invalid or void, the validity of the remaining clauses or parts thereof shall not be affected.
- No waiver of any provision of this Agreement shall be enforceable against that party unless it is in writing and signed by that party.
- The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this Agreement. Where this Agreement uses the word “including,” it means “including without limitation,” and where it uses the word “includes,” it means includes without limitation.
- The Customer may bring in to the Country any foreign personnel who are necessary for the execution of the Services to the extent allowed by the applicable Laws of the Country of Delivery. The Customer shall ensure that these foreign personnel are provided with the required residence visas and work permits. The Customer will, if requested by ParaMatic, use reasonable endeavours to assist the Paramatic in obtaining any local, provincial, or government permission required for the employment of the foreign personnel in respect of the Services.
- If required by the scope of this Contract, the onus is on the Customer to arrange visas and work permits for its personnel going to the Project Site. No extensions of time or resultant increased costs will be entertained by the ParaMatic on account of the Customer failing to obtain work permits and visas timeously and ParaMatic shall be entitled to exercise its rights and remedies under the Contract should the Customer fail to comply herewith.
- Exceptional Event means any circumstances beyond the control of the Parties including, but not limited to, exceptional events or circumstances of the kind listed below:
- War, hostilities (whether war be declared or not), invasion, act of foreign enemies; rebellion, terrorism, revolution, insurrection, military or usurped power and civil war;
- Riot, commotion, national strikes, disorder, except where solely restricted to employees of the Customer or its sub-contractors;
- Munitions of war, explosive materials, ionising radiation or contamination by radio-activity, except as may be attributable to the Customer’s use of such munitions, explosives, radiation or radio-activity;
- Natural catastrophes such as earthquakes, hurricane, typhoon, or volcanic activity;
- Epidemics, pandemics or any similar event which causes restrictions to be imposed by any government, regulator, world organization or any other entity with the authority to impose restrictions;
- A virus or disease whether it be considered a pandemic or epidemic which affect the execution of the Works;
- An order, direction, instruction, declaration or similar event issued by any authority or person exercising a power under legislation that prevents or restricts or disrupts the Services in any manner.
- Neither party shall be considered to be in default or breach of its obligations under the Purchase Order to the extent that performance of such obligations is prevented by any circumstances of Exceptional Event which arise during the Purchase Order period, and the period of such prevention of performance shall be added to the time for performance of the obligation delayed.
- The Customer shall not, in any event, be entitled to additional or extra compensation by reason of the Customer having been delayed in performance of its obligations due to Exceptional Event.
- If circumstances of Exceptional Event have occurred and shall continue for a period of 60 (sixty) days then, notwithstanding that the Customer may by reason thereof have been granted an extension of time for performance in terms of the Purchase Order, either Party shall be entitled to serve upon the other, 14 (fourteen) days’ notice of termination of the Contract. If at the expiry of the period of 14 (fourteen) days the Exceptional Event shall still continue, the Purchase Order shall terminate.
parties warranty on adherence to anti-bribery and sanctions laws or policies
- Anti-Corruption Legislation includes, but is not limited to, the United Kingdom Bribery Act 2010, the U.S. Foreign Corrupt Practices Act, the US OFAC Regulations, the US Export Administration Regulations and the South African Prevention and Combating of Corrupt Activities Act 12 of 2004, as amended from time to time and any applicable law, rule, regulation and other legally binding measure relating to the prevention of bribery, corruption, fraud or similar or related activities in South Africa/the Country or any other relevant jurisdiction.
- The Parties undertake to comply with all Adequate Procedures, Anti-Corruption Legislation, anti-bribery, anti-corruption and anti-money laundering laws, regulations, policies and best practice standards of the United Kingdom of Great Britain and Northern Ireland (“UK”), European Union (“EU”), the United States of America (“USA”), Organisation for Economic Co-operation and Development (“OECD”) and the United Nations (“UN”) to which they, any of their Affiliates, shareholders or joint venture partners is or are subject,
- Including those of any jurisdiction where they, any of their Affiliates, shareholders or joint venture partners conduct business (such laws, regulations, policies and best practice standards are hereinafter collectively referred to as the “International Anti-Bribery Laws”); comply with all laws, regulations and policies relating to economic or trade sanctions or export controls of the UK, EU, USA, OECD and the UN to which they and/or any of their Affiliates and/or shareholders or joint venture partners is or are subject to, including those of any jurisdiction where they and/or any of their Affiliates and/or shareholders or joint venture partners conduct business (such laws, regulations and/or policies are hereinafter collectively referred to as the “sanctions laws”);
- Have adequate anti-corruption structures, compliance programmes, procedures and an anti-corruption policy (“Anti-Corruption Programme”) in place to enable compliance with all anti-bribery, anti-corruption and anti-money laundering laws, regulations and/or policies as well as economic or trade sanctions or export control related laws, regulations and/or policies to which they are subject, including but not limited to the Anti-Corruption Legislation.
- The Parties warrant that neither they nor any of their employees or any agent acting on their behalf has ever contravened any economic or trade sanctions or export controls imposed by any country; and neither they nor any of their employees nor any agent acting on their behalf, has ever:
- Been found guilty of engaging in any corrupt activities prohibited by law; or
- Directly or indirectly accepted or agreed to accept or offered any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
- Gave or agreed to give or offered to any other person any gratification for the benefit of that other person or for the benefit of another person in order to act personally or by influencing another person so to act in a manner that amounts to:
- an illegal, dishonest, unauthorised, incomplete or biased act;
- the misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or function arising out of a constitutional statutory, contractual or another legal obligation;
- the abuse of a position of authority
- a breach of trust
- the violation od a legal duty or a set od rules that is designed to achieve an unjustified result
- and any other unauthorised or improper inducement to do or not to do do anything.
- In relation to any dispute at any time between the parties in regard to any matter arising in, or out of, the Purchase Order or its cancellation, interpretation or rectification, the parties shall, at senior management level, attempt to resolve such dispute first by discussion between the parties and, should such discussions fail to resolve the dispute, it shall be submitted to and decided by arbitration.
- Unless otherwise agreed in writing, the arbitration shall be in terms of the general provisions and standard procedures of the applicable rules, as compiled by the Association of Arbitrators (Southern Africa).
- The arbitration shall be held:
- At Cape Town, South Africa and the seat or legal place of the arbitration shall be Cape Town, South Africa;
- Immediately and with a view to it being completed within 30 (thirty) days after it is demanded;
- Otherwise in terms of the provisions of the Arbitration Act 42 of 1965 of the Republic of South Africa (as amended from time to time).
- The arbitrator shall be an independent person agreed upon by the parties and failing agreement, appointed by the chairman, for the time being, of the Association of Arbitrators (Southern Africa).
- The parties irrevocably agree that the decision in those arbitration proceedings:
- Shall be final and binding on them;
- Shall be carried into effect;
- May be made an order of any Court of competent jurisdiction.
- This clause is severable from the rest of the Purchase Order, and shall therefore remain effective and binding on the parties even if the Purchase Order is terminated, cancelled, void, or otherwise is not, or ceases to be, enforceable or of full force or effect, or lapses.
The Customer shall be entitled to terminate the Purchase Order, in whole or in part, at any time, by written notice to ParaMatic specifying the date of termination. On such date of termination, ParaMatic shall discontinue performance in terms of the Purchase Order, preserve any portion of the Goods and/or Services ready for delivery and hand over all such portions of the Goods and/or Services to the Customer, in accordance with the Engineer’s instructions. All portions of the Goods and/or Services so delivered to the Customer prior to the date of termination, or handed over to the Customer as contemplated herein, shall become the property of the Customer when paid for by the Customer.
- The Customer shall not terminate the Purchase Order under this clause in order to execute the Goods and/or Services himself or to arrange for the Goods and/or Services to be executed by another contractor.
- If ParaMatic has properly and completely performed all obligations in terms of the Purchase Order up to the date of termination, ParaMatic shall recover from the Customer as complete and full settlement for such termination:
- the amount due for that portion of the Goods and/or Services which has been completed up until the date of termination and delivered to the Customer; andThe amount of any Goods and/or Services, equipment and/or materials ordered for incorporation into the Goods and/or Services which has been delivered to the Customer, or of which the Customer is liable to accept delivery. Such Goods and/or Services, equipment and/or materials shall become the property of the Customer when paid for by the Customer, and ParaMatic shall place the same at the Customer’s disposal.
- ParaMatic shall not be entitled to any loss of profits, consequential loss, or any damages of whatsoever nature, on account of such termination and ParaMatic claim shall be limited to what is stated herein.
- Should ParaMatic become insolvent or commit an act of insolvency or pass a resolution for winding up (not being a member’s voluntary winding up for the purpose of reconstruction or amalgamation), or be subject to a winding up order of the Court (whether provisional or final), or be placed under provisional or final judicial management, the Customer shall be at liberty either:
- To terminate the Purchase Order, in writing, to ParaMatic or to the liquidator or judicial manager or to any person in whom the Purchase Order may become vested; or
- To give such liquidator or judicial manager or other person the option of carrying out the Purchase Order subject to the liquidator or judicial manager or other person providing a guarantee for the due and faithful performance of the Purchase Order.
- If at any time either party compounds or enters into an arrangement of compromise with its creditors, or allows a judgment against it to remain unsatisfied for more than 14 (fourteen) days; or commits a breach of any of the terms and conditions of the Purchase Order and fails to remedy such breach within 14 (fourteen) days after the delivery of written notice by the aggrieved party requiring it to remedy such default the aggrieved party shall have the right, at its option, and without prejudice to any claim which it may have for damages for breach of Purchase Order or otherwise, to cancel the Purchase Order, or to cancel a portion of the Purchase Order, or to claim specific performance.
- Should the Customer elect to cancel a portion of the Purchase Order, the only recourse which ParaMatic shall have as against the Customer will be a claim for damages.
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