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HYGIENE PRODUCTS SUPPLY AGREEMENT
between
SOUTH AFRICAN AIRWAYS SOC LIMITED
Registration Number 1997/022444/30
a state owned company with limited liability incorporated according to the company laws of
the Republic of South Africa (hereinafter referred to as “SAA”)
and
[INSERT]
Registration Number
(hereinafter referred to as “the Supplier”)
CONTENTS1 DEFINITION AND INTERPRETATION..................................................................4
2 RECORDAL............................................................................................................8
3 APPOINTMENT OF THE SUPPLIER.....................................................................8
4 DURATION.............................................................................................................8
5 HYGIENE PRODUCTS, FEES AND OTHER COSTS...........................................9
6 WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF THE SUPPLIER
..............................................................................................................................10
7 WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF SAA................11
8 CONFIDENTIALITY AND INTELLECTUAL PROPERTY.....................................12
9 BREACH...............................................................................................................14
10 TERMINATION.....................................................................................................14
11 LIABILITY AND INDEMNITY................................................................................15
12 DOMICILIUM CITANDI ET EXECUTANDI...........................................................16
13 DETERMINATION OF DISPUTES.......................................................................17
14 INSURANCE........................................................................................................19
15 RECORDS............................................................................................................20
16 ASSIGNABILITY AND SUBCONTRACT..............................................................21
17 NO BUSINESS RELATIONSHIP, AGENCY OR PARTNERSHIP.......................21
18 FORCE MAJEURE...............................................................................................21
19 GOVERNING LAW...............................................................................................22
20 GENERAL............................................................................................................22
ANNEXURE A - THE HYGIENE PRODUCTS AND FEES.....................................................26
ANNEXURE B – SERVICE LEVEL AGREEMENT.................................................................29
ANNEXURE C ....................................................................................................................30
ANNEXURE C – PREMISES – ATTACHMENT 1..................................................................31
ANNEXURE C – ACCESS PERMITS.....................................................................................32
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1 DEFINITION AND INTERPRETATION
1.1 In this Agreement, unless the context indicates otherwise, the following terms will
be defined as set out below:
1.1.1 “Agreement” means this Hygiene Product Supply Agreement and all
annexures attached thereto;
1.1.2 “Business Day” means any day other than a Saturday, Sunday or
public holiday as gazetted by the government of South Africa from time
to time;
1.1.3 “Hygiene Products” means the Products to be supplied by [INSERT] to
SAA in accordance with the provisions of this Agreement, all as more
fully described in Annexure A hereto (the Hygiene Products);
1.1.4 “Commencement Date” means [INSERT], notwithstanding the
Signature Date;
1.1.5 “Confidential Information” means any information or data which by its
nature or content is identifiable as confidential and/or proprietary of
SAA;
1.1.6 “Intellectual Property” means either Party’s intellectual and industrial
property throughout the world including in connection with any
confidential information, copyright (including future copyright),
inventions (including patents), trademarks and service marks whether or
not registered or capable of registration and includes any rights to apply
for the registration and renewal or extension of such rights;
1.1.7 “Parties” means SAA and the Supplier and “Party” shall mean either of
them;
1.1.8 “RFB” means the Request for Bid document no [INSERT], being an
invitation to tender advertised on [INSERT], the terms thereof being
incorporated by reference into this Agreement;
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1.1.9 “SAA” means South African Airways SOC Limited (Registration Number
1997/022444/30) a state owned company duly incorporated in
accordance with the laws of the South Africa, with its principal place of
business situated at Airways Park, Jones Road, OR Tambo
International Airport, Kempton Park, South Africa;
1.1.10 “Supplier ” means [INSERT] duly incorporated in accordance with the
laws of the South Africa,
1.1.11 “Signature Date” means the date of signature of this Agreement by the
Party last signing;
1.1.12 “SLS” means Service Level Specification; and
1.1.13 “South Africa” means the Republic of South Africa.
1.2 In this Agreement -
1.2.1 clause headings and the heading of the Agreement are for convenience
only and are not to be used in its interpretation;
1.2.2 an expression which denotes -
1.2.2.1 any one gender includes the other gender;
1.2.2.2 a natural person includes a juristic person and vice versa;
1.2.2.3 the singular includes the plural and vice versa;
1.2.2.4 a Party includes a reference to that Party’s successors-in-
title and assigns allowed at law; and
1.2.2.5 a reference to a consecutive series of two or more clauses is
deemed to be inclusive of both the first and last mentioned
clauses.
1.3 Any reference in this Agreement to –
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1.3.1 "business hours" shall be construed as being the hours between
08h00 and 17h00 on any Business Day except where indicated or
required to the contrary within the Agreement or by the Hygiene
Products. Any reference to time shall be based upon South African
standard time;
1.3.2 "laws" means all constitutions, statutes, regulations, by-laws, codes,
ordinances, decrees, rules, judicial, arbitral, administrative, ministerial,
departmental or regulatory judgements, orders, decisions, rulings, or
awards, policies, voluntary restraints, guidelines, directives, compliance
notices, abatement notices, agreements with, requirements of, or
instructions by any Governmental Body, and the common law, and “law”
shall have a similar meaning, and
1.3.3 "person" means any person, company, close corporation, trust,
partnership or other entity whether or not having separate legal
personality.
1.4 The words "include" and "including" mean "include without limitation" and
"including without limitation". The use of the words "include" and "including"
followed by a specific example or examples shall not be construed as limiting the
meaning of the general wording preceding it.
1.5 Any substantive provision, conferring rights or imposing obligations on a Party
and appearing in any of the definitions in this clause 1 or elsewhere in this
Agreement, shall be given effect to as if it were a substantive provision in the
body of the Agreement.
1.6 Words and expressions defined in any clause shall, unless the application of any
such word or expression is specifically limited to that clause, bear the meaning
assigned to such word or expression throughout this Agreement.
1.7 Unless otherwise provided, defined terms appearing in this Agreement in title
case shall be given their meaning as defined, while the same terms appearing in
lower case shall be interpreted in accordance with their plain English meaning.
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1.8 A reference to any statutory enactment shall be construed as a reference to that
enactment as at the Signature Date and as amended or substituted from time to
time.
1.9 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 day that is not a Business Day, the next succeeding Business Day.
1.10 If the due date for performance of any obligation in terms of this Agreement is a
day which is not a Business Day then (unless otherwise stipulated) the due date
for performance of the relevant obligation shall be the immediately preceding
Business Day.
1.11 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.
1.12 The rule of construction that this Agreement shall be interpreted against the
Party responsible for the drafting of this Agreement, shall not apply.
1.13 No provision of this Agreement shall (unless otherwise stipulated) constitute a
stipulation for the benefit of any person (stipulatio alteri) who is not a Party to this
Agreement.
1.14 The use of any expression in this Agreement covering a process available under
South African law, such as winding-up, shall, if either of the Parties to this
Agreement is subject to the law of any other jurisdiction, be construed as
including any equivalent or analogous proceedings under the law of such other
jurisdiction.
1.15 Any reference in this Agreement to "this Agreement" or any other agreement or
document shall be construed as a reference to this Agreement or, as the case
may be, such other agreement or document, as amended, varied, novated or
supplemented from time to time.
1.16 In this Agreement the words "clause" or "clauses" and "annexure" or
"annexures" refer to clauses of and annexures to this Agreement.
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2 RECORDAL
2.1 SAA issued the RFB in terms of which SAA sought to appoint a suitably qualified
Supplier to supply the Hygiene Products to SAA.
2.2 The Supplier reiterated in its response to the RFB that it has the requisite
capacity and expertise to supply such Hygiene Products to SAA.
2.3 The Parties wish to enter into an agreement setting out the basis upon which the
Supplier will supply the Hygiene Products to SAA.
2.4 The Parties specifically agree that the terms of the RFB and the Supplier’s
response to the RFB are incorporated into this Agreement by reference. In the
event of a conflict between the provisions of this Agreement, the RFB and the
Supplier’s response to the RFB, this Agreement shall prevail.
3 APPOINTMENT OF THE SUPPLIER
3.1 SAA hereby wishes to appoint the Supplier to supply the Hygiene Products to
SAA in accordance with the terms and conditions of this Agreement and the
Supplier hereby accepts such appointment on the terms and conditions set out in
this Agreement and in its response to the RFB.
3.2 The appointment in clause 3.1 is non-exclusive and, SAA shall be entitled, in
SAA’s sole and absolute discretion and without reference to the Supplier, to
accept the supply of the Hygiene Products or Hygiene Products similar to the
Hygiene Products from any third parties whomsoever as SAA may determine.
Where such appointment is required due to the Supplier not performing in terms
of the provisions of this Agreement or materially deviates from its RFB response
without the consent of SAA, such appointment shall be without prejudice to any
other rights, remedies or recourse SAA may have whether in terms of this
Agreement or at law.
4 DURATION
4.1 This Agreement will commence on the Commencement Date and subject to such
provisions providing for its termination in certain circumstances continue for a
period of 3 (three) years.
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4.2 Notwithstanding anything to the contrary SAA may terminate this Agreement for
any reason, and without recourse or penalty at any time with 90 (ninety) days
prior written notice.
5 HYGIENE PRODUCTS, FEES AND OTHER COSTS
5.1 The Supplier hereby agrees to supply the Hygiene Products to SAA as required
in terms of this Agreement and further detailed in Annexure A in exchange for
remuneration in accordance with the negotiated costs (“the Product Fee”) as
detailed in Annexure A (Pricing Schedule). The Parties acknowledge to each
other, that the total Service Fee payable by SAA shall not exceed the amount
detailed in Annexure A. Any amount exceeding the total amount contemplated
therein must be agreed in writing by SAA and approved by SAA’s approving
authority. It is recorded that all additional costs which exceed the Product Fee or
agreed limits shall be for the account of the Supplier, unless such have been pre-
approved by SAA in writing.
5.2 If any circumstance arises after conclusion of this Agreement which necessitates
the supply of additional Hygiene Products, the Parties may agree to the supply of
such additional Hygiene Products at an additional fee to be agreed on by both
Parties in writing, subject to the proper internal authorisation of such additional
Hygiene Products.
5.3 The Supplier shall submit to SAA, within 7 (seven) days of the expiry of each
month during the currency of this Agreement, and shall include a statement and
tax invoice reflecting the amount(s) owing by SAA to the Supplier in respect of
the Hygiene Products rendered by the Supplier during the immediately preceding
month. SAA shall have 30 (thirty) days to pay such invoice(s) to the Supplier’s
bank account in South Africa, as advised in writing to SAA by the Supplier.
5.4 In the event that SAA disputes any portion of an invoice, it shall pay to the
Supplier the undisputed portion of the monthly Service Fee while the Parties
work to resolve the disputed portion. The Parties shall work diligently to resolve
any such dispute within 30 (thirty) days from the date that SAA provides the
Supplier with written notice of the disputed amount. The Parties agree that any
disputed payments shall be dealt with in accordance with clause 13.
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5.5 Subject to clauses 5.3 and 5.4, should SAA fail to pay the invoices submitted
within the period as stipulated in clause 5.3, the Supplier will be entitled to
charge interest on late payment based on the active interest rate charged by its
bank on overdraft facilities provided the Supplier has advised SAA in writing of
the outstanding payment and such still remains unpaid without reason after 30
days of such written notice.
5.6 The Product Fee shall be reviewed annually and adjusted where applicable with
effect from the anniversary date.
6 WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF THE SUPPLIER
6.1 The Supplier undertakes that it shall supply the Hygiene Products to SAA -
6.1.1 strictly on the terms and conditions of this Agreement, and specifically in
accordance with the performance service levels set out under
Annexure B of this Agreement; and
6.1.2 strictly in accordance with any additional instructions of SAA, which
shall be incorporated into this Agreement by reference (including
without limitation verbal instructions) which shall be subsequently
reduced to writing?
6.2 The Supplier hereby specifically represents and warrants in favour of SAA (and
acknowledges that SAA would not have entered into this Agreement but for the
representations and warranties set out below) that –
6.2.1 it has the corporate power to enter into and perform, and has
undertaken all necessary corporate action to authorise the entry into
and render performance of this Agreement and the transactions
contemplated by this Agreement;
6.2.2 this Agreement constitutes its legal, valid and binding obligations;
6.2.3 neither the execution and delivery of this Agreement, the consummation
of the transaction contemplated hereby nor the compliance by it with
any terms and provisions hereof will contravene any law applicable to it;
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6.2.4 it has all and any consents, licences, permits and any other authorities
of whatsoever nature which are required by it to fulfil its obligations
under and in terms of this Agreement;
6.2.5 it possesses the requisite knowledge and experience to perform its
duties and the Hygiene Products in terms of this Agreement;
6.2.6 it shall perform the Hygiene Products in accordance with the
requirements of the Agreement and to the performance levels and
standards as fully set out in Annexure B;
6.2.7 it shall deliver the Hygiene Products on time in order to ensure the
prompt and effective rendition of the Hygiene Products to SAA;
6.2.8 it will make available to SAA suitably qualified personnel to perform the
Hygiene Products, and
6.2.9 it shall in rendering the Hygiene Products at all times in the best interest
of SAA.
The representations and warranties set out in clause 6.2 and elsewhere in this
Agreement shall survive the execution of this Agreement.
7 WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF SAA
7.1 SAA hereby represents and warrants in favour of the Supplier (and
acknowledges that the Supplier would not have entered into this Agreement but
for the representations and warranties set out below) that –
7.1.1 it has the corporate power to enter into and perform, and has
undertaken all necessary corporate action to authorise the entry into
and render performance of this Agreement and the transactions
contemplated by this Agreement;
7.1.2 this Agreement constitutes its legal, valid and binding obligations;
7.1.3 neither the execution and delivery of this Agreement, the consummation
of the transaction contemplated hereby nor the compliance by it with
10
any terms and provisions hereof will contravene any law applicable to it;
and
7.1.4 it has all and any consents, licences, permits and any other authorities
of whatsoever nature which are required by it to fulfil its obligations
under and in terms of this Agreement.
7.2 The representations and warranties set out in clause 7.1 shall survive the
execution of this Agreement.
7.3 SAA shall place at the disposal of the Supplier (where applicable) office space,
tools, equipment, facilities and resources as agreed and detailed in Annexure C for purposes of supplying the Hygiene Products.
7.4 SAA shall pay the agreed Product Fee and costs not in dispute, in accordance
with the provisions of this Agreement.
8 CONFIDENTIALITY AND INTELLECTUAL PROPERTY
8.1 Each Party (“Receiving Party”), including its employees, agents and/or
representatives undertake that they shall not disclose or otherwise reveal to any
person or entity in any way whatsoever nor making commercial use of any
Confidential Information it may have access to by virtue of its involvement in the
work related to the Hygiene Products without the prior written consent of the
other Party (“Disclosing Party”).
8.2 The Parties agree to each that each Party shall protect and reasonably assist the
other in order to protect each other’s Intellectual Property and not interfere with
the Intellectual Property rights of the other Party in terms of this Agreement.
8.3 The Confidential Information of the Disclosing Party may be used by the
Receiving Party only in connection with the Hygiene Products and/or in relation
to this Agreement.
8.4 Each Party agrees to protect the confidentiality of the Confidential Information of
the other in the same manner that it protects the confidentiality of its own
proprietary and Confidential Information of like kind, but in no event shall either
Party exercise less than reasonable care in protecting such Confidential
11
Information. Access to the Confidential Information shall be restricted to: (i) the
Supplier and SAA personnel (including in the case of the Supplier, personnel
subcontracted to it) engaged in a use permitted hereby; and (ii) professional
legal advisers and auditors of the Supplier and SAA.
8.5 The Confidential Information may not be copied or reproduced without the
Disclosing Party‘s prior written consent except for the purpose of supply of the
Hygiene Products.
8.6 All Confidential Information made available hereunder, including copies thereof,
shall be returned or destroyed upon the first to occur of (i) completion of the
supply of the Hygiene Products or (ii) request by the Disclosing Party unless the
Receiving Party is otherwise allowed to retain such Confidential Information.
8.7 Nothing in this clause shall apply to Confidential Information (i) that was
previously known to the Receiving Party without obligation of confidence, (ii) that
is independently developed by the Receiving Party without reference to or
reliance upon the Confidential Information, (iii) that is acquired by the Receiving
Party from a third party which is not, to its knowledge, under an obligation of
confidence with respect to such information, or (iv) which is or becomes publicly
available through no breach of this Agreement, or (v) that is required to be made
available to any court pursuant to any litigation between the Parties.
8.8 If either Party receives a subpoena or other validly issued administrative or
judicial process or order demanding Confidential Information of the other Party or
is required to disclose such information to any stock exchange on which its
shares are traded, it shall promptly notify the other of such receipt and tender to
it the defence of such demand. The Party receiving the subpoena, demand or
other process shall thereafter be entitled to comply with such subpoena, demand
or other process to the extent required by law. Hygiene Products provided
hereunder in no event include the Supplier acting as an expert witness or
otherwise providing litigation support service.
8.9 SAA Intellectual Property: SAA retains all right, title and interest in and to
SAA’s Intellectual Property.
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8.10 Supplier’s Intellectual Property: The Supplier retains all right, title and interest
in and to the Supplier’s pre-existing Intellectual Property that is used in
connection with the supply of the Hygiene Products.
8.11 The Parties agree that the provisions of this clause 8 will remain in force
notwithstanding termination of this Agreement.
9 BREACH
If any Party breaches any material provision or term of this Agreement (other than
those which contain their own remedies in the event of breach thereof) and fails to
remedy such breach within 7 (seven) days of receipt of written notice requiring it to do
so (or such further period as may be allowed in writing by the aggrieved party it being
recorded and agreed that the aggrieved party shall act reasonably in extending such
period where the circumstances are such that the breach cannot reasonably be
remedied within such 7 day period) then the aggrieved Party may without further notice
(in addition to any other remedy available to it at common law or under statute or
under this Agreement, including the obtaining of an interdict), to claim specific
performance of any obligation or terminate the Agreement, without prejudice to the
rights of the aggrieved Party to claim damages.
10 TERMINATION
10.1 Without in any way limiting or derogating from any other provision hereof, SAA
shall be entitled, but not obliged, to terminate this Agreement forthwith at any
time by addressing written notice to that effect to the Supplier (without prejudice
to any other rights of SAA in law or in terms of this Agreement and in particular,
but without limitation , its rights to claim damages) If-
10.1.1 the Supplier compromises or attempts to compromise or defer payment
of its debts owing by it to its creditors generally; or
10.1.2 the Supplier is provisionally or finally liquidated or wound-up, removed
from the register of companies or placed under judicial management
and/or business rescue proceedings are instituted or any administration
order whatsoever or takes any steps for its voluntary winding-up or
liquidation; or
13
10.1.3 the Supplier generally does or omits to do or suffers anything to be done
which may in any way potentially prejudice SAA's rights under this
Agreement; or
10.1.4 the Supplier commits any breach of any provision of this Agreement and
fails to remedy such breach as provided for under clause 9; or
10.1.5 the Supplier undergoes a change of control, in that the shareholders
who have the right to vote the majority of the votes attaching to its entire
issued share capital cease to control such votes for any reason
whatsoever (in which event, the Supplier shall forthwith notify SAA of
such change of control in writing), or
10.1.6 any consent, authorisation, licence or approval necessary in order to
enable the Supplier to comply with its obligations in terms of this
Agreement is modified or is not granted or is revoked, suspended,
withdrawn or terminated or expires and is not renewed.
10.2 Without in any way limiting or derogating from any other provision of this
Agreement, if the Supplier fails to comply with or breaches any of its obligations
in terms of this Agreement, or fails to adhere to the performance levels under
Annexure B, SAA shall be entitled but not obliged, without prejudice to any other
remedies available to it at law or in terms of this Agreement arising from such
failure or breach, to remedy such failure or breach on behalf of the Supplier and
to recover, on demand, from the Supplier all costs of whatsoever nature and
howsoever arising incurred by SAA by reason of or pursuant to it having
remedied such failure or breach as aforesaid.
11 LIABILITY AND INDEMNITY
11.1 The Supplier hereby indemnifies, defends and holds harmless SAA and its
employees, officers and directors against all and any loss, cost, liability,
damages, costs, expense, injury, death, penalty claim or interest (including
reasonable attorney’s fees) (collectively “Loss”) of whatsoever nature which may
be incurred or sustained by SAA as a result of any claim by a third party against
SAA by reason of or pursuant to the Supplier’s performance, non-performance or
failure or refusal to comply strictly with all or any of its obligations in accordance
with the provisions of this Agreement or as a result of any negligent act or 14
omission on the part of the Supplier. Any claim by SAA under such indemnity
shall be reduced to the extent any such Loss arose due to the gross negligence
or willful misconduct of SAA. SAA shall provide the Supplier with prompt written
notice of any claim for which indemnification is sought hereunder and shall
cooperate in all reasonable respects (provided that the Supplier shall cover
SAA's reasonable out-of-pocket expenses associated therewith) with the
Supplier in connection with any such claim. The Supplier shall be entitled to
control the handling of any such claim and to defend or settle any such claim, in
its sole discretion, with counsel of its own choosing. The Supplier shall be
obliged to make payment under this indemnity as soon as any such Loss has
been suffered by SAA.
11.2 Except where expressly prohibited by applicable law, in no event shall either
Party be liable for any consequential, incidental, indirect, special or exemplary
damages arising in connection with this Agreement and/or its subject matter.
11.3 Neither Party excludes or limits liability to the other Party for breach of
confidentially undertakings (contemplated in clause 8), death or personal injury
caused by its negligence or the negligence of its employees, directors, partners
or authorized agents.
12 DOMICILIUM CITANDI ET EXECUTANDI
12.1 The Parties choose as their domicilia citandi et executandi, for all purposes
under this Agreement, whether in respect of court process, notices or other
documents or communications of whatsoever nature (including the exercise of
any option), the following addresses:
SAA SupplierPhysical PhysicalSouth African Airways SOC Limited [INSERT]Airways ParkJones StreetKempton Park1619PostalPrivate Bag X13OR Tambo International Airport1627Fax: 011 978 6204
15
12.2 Any notice or communication required or permitted to be given in terms if this
Agreement shall be valid and effective only if in writing but it shall be competent
to give notice by telefax.
12.3 Either Party may by notice to the other Party change the physical address
chosen as its domicilium citandi et executandi to another physical address where
postal delivery occurs in South Africa or its postal address or its telefax number,
provided that the change shall become effective on the 14th (fourteenth)
Business Day from the deemed receipt of the notice by the other Party.
12.4 Any notice to a Party –
12.4.1 sent by prepaid registered post (by airmail if appropriate) in a correctly
addressed envelope to it at an address chosen as its domicilium citandi
et executandi to which post is delivered shall be deemed to have been
received on the 14th (fourteenth) Business Day after posting (unless the
contrary is proved);
12.4.2 delivered by hand to a responsible person during ordinary business
hours at the physical address chosen as its domicilium citandi et
execitandi shall be deemed to have been received on the day of
delivery; or
12.4.3 sent by telefax to its chosen telefax number stipulated in clause 12.1,
shall be deemed to have been received on the date of despatch (unless
the contrary is proved).
12.5 Notwithstanding anything to the contrary herein contained a written notice or
communication actually received by a Party shall be an adequate written notice
or communication to it notwithstanding that it was not sent to or delivered at its
chosen domicilium citandi et executandi.
13 DETERMINATION OF DISPUTES
13.1 Save in respect of those provisions of this Agreement which provide for their own
remedies and which would be incompatible with the provisions of this clause 13,
any dispute which arises between the Parties in regard to –
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13.1.1 the interpretation of; or
13.1.2 the carrying into effect of; or
13.1.3 any of the Parties' rights and obligations arising from; or
13.1.4 the termination or purported termination of or arising from the
termination of;
13.1.5 the rectification or proposed rectification of this Agreement, or out of or
pursuant to this Agreement or on any matter which in terms of this
Agreement required agreement by the Parties (other than where an
interdict is sought or urgent relief may be obtained from a court of
competent jurisdiction), shall be submitted to and decided by a single
expert ("the Expert") appointed by agreement by the Parties within 7
(seven) days of the date on which the dispute in question has arisen.
13.2 The Expert shall be, if the matter in dispute is principally –
13.2.1 an accounting matter, an independent practising chartered accountant
of not less than 15 (fifteen) years standing; or
13.2.2 a legal or any other matter, an independent practising attorney or senior
counsel of not less than 15 (fifteen) years standing.
13.3 If the Parties fail to agree on who the Expert shall be within the period provided
for in clause 13.1 and/or to the nature of the dispute for the purposes of clause
13.2 then, save as may otherwise be agreed in writing by the Parties, the Expert
shall be appointed, at the request of either Party, by the President for the time
being of the Gauteng Law Council (or its successor body in Gauteng).
13.4 The Parties reciprocally undertake to do all things possible in the circumstances
in order to ensure that the Expert is in a position to deliver his determination as
soon as possible after the date on which the proceedings in respect thereof have
commenced.
13.5 The Expert shall act as such and not as an arbitrator. The Expert shall have the
fullest and freest discretion to determine the procedures to be adopted in the
17
resolution of the dispute, provided that it is the intention of the Parties that any
resultant proceedings be conducted on the most informal basis possible in the
circumstances.
13.6 The Expert's determination shall be final and binding on the Parties.
13.7 The Expert shall be entitled to make a determination as to his charges which
shall be borne and paid accordingly.
14 INSURANCE
14.1 The Supplier shall take out the insurance specified in clause 14.5 and keep such
insurance policy(ies) in place for the duration of this Agreement under an
insurance policy issued by an insurer approved of by SAA from time to time
(which approval shall not be unreasonably withheld).
14.2 The respective interests of the Supplier and SAA shall be endorsed on the
insurance policy on the basis that SAA shall be recognised by the insurer in
question as the only party entitled to claim compensation under any such
insurance policy.
14.3 If so required by SAA, the Supplier shall cede in writing to SAA all its rights,
titled and interest in and to the insurance policy effected by it in terms hereof.
14.4 The Supplier shall pay all and any premiums failing due under such insurance
policy on or before the due date therefor, failing which SAA shall be entitled, but
not obliged, to pay any such premiums on behalf of the Supplier and to recover
any such amounts so dispersed on demand therefor from the Supplier. Should
any policy of insurance effected by the Supplier in terms of this Agreement
include an excess clause in terms if which the insured thereunder is or will be
obliged to pay the first portion of any claim thereunder, the Supplier shall pay the
amount of any such portion to SAA on demand in respect of each and every
claim under any such insurance policy.
14.5 The Supplier shall at all times comply with all the terms and conditions of any
insurance policy effected by it in terms hereof and shall, without limitation, render
to SAA and/or the insurer in question whatever assistance may be required by it
in connection with any claim under any such insurance policy and the Supplier
18
shall not do, nor permit to be done, any act or other thing which may render any
such insurance policy void or voidable at the instance of any person, nor entitle
the insurers in question to repudiate liability under any such insurance policy. A
copy of the proof of cover is attached herewith marked Annexure E.
DESCRIPTION OF INSURANCEMINIMUM COVER
(any single event)
Professional Indemnity R10 million
Goods under care and custody control R10 million
All risk insurance R10 million
Public liability insurance including Product liability
(including but not limited to liability for death, injury,
loss, damage or destruction arising from the driving of
a motor vehicle)
R10 million
15 RECORDS
15.1 The Supplier shall procure that accurate, complete and current records are kept
of all –
15.1.1 Hygiene Products supplied by the Supplier to SAA pursuant to the
provisions of this Agreement, and
15.1.2 transactions concluded pursuant to the rendering by the Supplier of the
Hygiene Products.
15.2 SAA shall be entitled at all reasonable times and upon reasonable notice, either
through its representatives or its professional advisors, to inspect and make
copies of those portions of the Supplier’s books and records which relate to the
rendering of the Hygiene Products to SAA in accordance with the provisions of
this Agreement. The Supplier shall procure that SAA's representatives and
professional advisors shall be afforded access to all such books and records at
all reasonable times.
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16 ASSIGNABILITY AND SUBCONTRACT
16.1 The Supplier shall not have the right to cede or assign or sub-contract all or any
of its rights and/or obligations in terms of this Agreement to any third party
whomsoever without the express prior written consent thereto of SAA which
consent shall not be unreasonably withheld. Any consent of SAA as aforesaid
shall not relieve the Supplier from its obligations to SAA under this Agreement.
Without in any way limiting or derogating from foregoing, the Supplier shall be
responsible for any and all of the acts, defaults and omissions of any cessionary,
assignee o sub-contractor appointed by it, its agents, employees and any other
persons whomsoever for whom the cessionary, assignee or sub-contractor may
be liable in law.
16.2 SAA shall be entitled to cede or assign or sub-contract all or any of its rights
and/or obligations in terms of this Agreement to any third party whomsoever
without the prior consent thereto of the Supplier.
16.3 This Agreement shall be binding on and ensure to the risk and benefit of each of
the parties' respective permitted assigns and successors-in-title and businesses.
17 NO BUSINESS RELATIONSHIP, AGENCY OR PARTNERSHIP
17.1 By virtue of its signature hereof, the Supplier hereby represents and warrants in
favour of SAA that it does not at the signature date and will not, at any time
during the currency of the term, have any business relationship of whatsoever
nature with any individual whomsoever employed by or contracted to SAA, nor
does it nor will it make payments of any nature whatsoever to any such persons.
17.2 Nothing in this Agreement shall be construed as constituting the Supplier as the
agent of SAA or granting any authority to the Supplier to represent SAA or to
give any warranties or representations of whatsoever nature on behalf of SAA
and constituting a partnership between SAA and the Supplier .
18 FORCE MAJEURE
If vis majore or force majeure or casus fortuitous ("the interrupting circumstances")
cause delays in or failure or partial failure of performance by a Party of all or any of its
obligations hereunder, this Agreement or as the case may be, the affected portion
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thereof shall be suspended for the period during which the interrupting circumstances
prevail, but if they affect any material part of the Agreement for a maximum period of
30 (thirty) days any affected Party shall thereafter be entitled on 7 (seven) days' written
notice to terminate this Agreement. Written notice of the interrupting circumstances
specifying the nature and date of commencement thereof shall be despatched by the
Party seeking to rely thereon (on whom the onus shall rest) to the other(s) as soon as
reasonably possible after the commencement thereof. Written notice of the cessation
of the interrupting circumstances shall be given by the Party who relied thereon within
7 (seven) days after cessation. No Party shall subsequently be obliged to comply with
the obligations suspended during such period. For the purposes hereof vis majore and
force majeure include acts or omissions of any government, government agency,
provincial or local authority or similar authority, any laws or regulations having the
force of law, civil strife, riots, insurrection, sabotage, acts or war or public enemy,
interruption of transport, strikes or lockouts (but excluding strikes or protected lockouts
of the Supplier’s employees), inability on the part of any Party as a result of force
majeure of the nature contemplated in this clause to obtain the goods or Hygiene
Products from the Supplier or contemplated Supplier thereof or combination of
workmen, prohibition of exports, rationing of supplies, flood, storm, fire or (without
limitation eiusdem generis) any other circumstances beyond the reasonable control of
the Party claiming force majeure or vis majore and comprehended in the terms force
majeure or vis majore.
19 GOVERNING LAW
19.1 This Agreement will in all respects be governed by and construed in accordance
with the laws of the Republic of South Africa, and all disputes, actions and other
matters in connection therewith shall be determined in accordance with such law.
19.2 ......Either Party may institute all or any proceedings against the other party in
connection with this Agreement in the South Gauteng High Court of South Africa,
Johannesburg, or the Parties hereby consent and submit to the non-exclusive
jurisdiction of that court subject to clause 13.
20 GENERAL
20.1 No relaxation or indulgence granted by any Party (“the grantor”) from time to
time shall be deemed to be a waiver of the grantor’s rights in terms hereof, nor
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shall any such relaxation or indulgence be deemed to be a novation or waiver of
the terms and conditions of this Agreement.
20.2 This Agreement constitutes the whole agreement between the Parties in relation
to the subject matter hereof, and no variation, amendment or addition to the
Agreement will be of any force unless reduced to writing and signed by or on
behalf of the Parties.
20.3 No Party may rely on any representation that allegedly induced that Party to
enter into this Agreement, unless that representation is recorded in this
Agreement.
20.4 All provisions and the various clauses of this Agreement are, notwithstanding the
manner in which they have been grouped together or linked grammatically,
severable from each other. Any provision or clause of this Agreement which is
or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity,
illegality, unlawfulness or for any other reason whatever, shall, in such
jurisdiction only and only to the extent that it is so unenforceable, be treated as
pro non scripto and the remaining provisions and clauses of this Agreement shall
remain of full force and effect. The Parties declare that it is their intention that
this Agreement would be executed without such unenforceable provision if they
were aware of such unenforceability at the time of execution hereof.
20.5 In the event of any conflict between the provisions of this Agreement, any
Annexures and the provisions of the RFB and Supplier’s bid, the priority of
interpretation shall be as follows:
20.5.1 the body of this Agreement;
20.5.2 the Annexures of this Agreement;
20.5.3 the Supplier’s Bid, and
20.5.4 the RFB
20.6 This Agreement may be executed in counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
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Agreement as at the date of signature of the Party last signing one of the
counterparts.
SIGNED AT __________________________ ON THIS _____DAY OF ____________ 2015.
WITNESS:-
_______________________________
_______________________________
BY:___________________________________ (duly authorised)
For SOUTH AFRICAN AIRWAYS SOC LTD
Name:
Designation:
SIGNED AT __________________________ ON THIS _____DAY OF ____________ 2015.
WITNESS:-
_______________________________
_______________________________
BY:___________________________________ (duly authorised)
For SOUTH AFRICAN AIRWAYS SOC LTD
Name:
Designation:
SIGNED AT __________________________ ON THIS _____DAY OF ____________ 2015.
WITNESS:-
_______________________________
_______________________________
BY:___________________________________ (duly authorised)
For SOUTH AFRICAN AIRWAYS SOC LTD
Name:
Designation:
SIGNED AT __________________________ ON THIS _____DAY OF ____________ 2015.
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WITNESS:-
_______________________________
_______________________________
BY:___________________________________ (duly authorised)
For [INSERT]
Name:
Designation:
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ANNEXURE A - THE HYGIENE PRODUCTS AND FEES
This Annexure A describes the Hygiene Products that the Supplier has to provide and the
service levels that the Supplier must meet, in respect of the supply of the Hygiene Products.
The Service Level Agreement (SLA) is also an effective tool for aligning the performance of
the Supplier to the operational objectives of SAA and the need to procure longer-term
financial savings to SAA.
1 SERVICE REQUIREMENTS
1.1 SAA Service Objectives
SAA expects the following as a minimum;
Objective 1: A Supplier who has the capability and capacity to supply and
deliver the Hygiene Products to SAA.
Objective 2: Quality and safe Hygiene Products fir for SAA’s requirements.
Objective 3: Environmentally friendly Hygiene Products to ensure a safe and
pleasing working environment
1.2 Scope of Product Supply Requirements
The Hygiene Products as defined in this Agreement will be delivered to SAA by
the Supplier in accordance with the provisions of the Agreement.
2 SERVICE DELIVERY
2.1 Scope of service delivery
As per Annexure 6 of RFB
2.2 Service Activation
2.2.1 If request belongs to Facilities Operation (Corrective Maintenance) - Log
a Call – Call Facilities Call Centre.
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3 SERVICE EXCLUSIONS
The Hygiene Products, not specified in Annexure A will be deemed Additional
Products, subject to SAA Facilities approval and supplied by the Supplier.
4 SERVICE DEPENDENCIES
4.1 SAA Dependencies
4.1.1 SAA shall provide the Supplier’s reasonable access to its facilities
(subject to SAA’s security policy) to enable the Supplier’s to meet their
obligations in terms of their agreements.
4.1.2 Supplier rely heavily on an efficient and reliable approval process to
deliver its Hygiene Products to SAA effectively and efficiently. All
Product Supply requests unduly delayed by the approval process or
being cancelled will not be included in any performance calculation.
4.2 Other dependencies
The Supplier will deliver Hygiene Products in the event of employer bodies and
employee disputes, which might result in, strike action, go-slows or work
stoppages.
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ANNEXURE B – SERVICE LEVEL AGREEMENT
THE PERFORMANCE OF THE SUPPLIER WILL BE MEASURED IN TERMS OF THE FOLLOWING SERVICE LEVEL SPECIFICATIONS
The Supplier agrees that SAA shall, in the course and scope of the Supplier providing
the Hygiene Products, review the Supplier’s performance to assess the Suppliers
commitment, efficiency and effectiveness in supplying the Hygiene Products as
contemplated in its response to the RFB and the information provided therein,
including but not limited to the validity of its tax information and to audit the Supplier's
adherence to BBBEE levels. Any audits shall be conducted at reasonable times, on
reasonable notice and during normal Business Hours.
In the event that any assessment, inspection or audit conducted by SAA reveals any
material failure or inadequacy in providing the Hygiene Products in accordance with
the performance levels described in this Agreement or compliance with the provisions
of its response to the RFB, SAA shall be entitled to provide written demand to the
Supplier to correct such failure or inadequacy within 14 (fourteen) days, or such longer
period as SAA may agree to be reasonable in the circumstances, unless such failure
or inadequacy is caused by SAA. In the event of a failure by the Supplier to rectify the
said failure or inadequacy, notwithstanding written demand, SAA shall be entitled,
without prejudice to any other rights SAA may have, to terminate this Agreement by
providing 30 (thirty) days written notice. In the event of a termination in this regard, the
Supplier shall be required to complete all Hygiene Products that are ongoing at the
time of termination. The Supplier shall be paid for any such Hygiene Products
rendered.
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ANNEXURE C
SAA shall provide premises where applicable to the Supplier solely for purposes of rendering
the Hygiene Products. This will be negotiated with the Supplier within the mobilisation phase
and reduced into writing and form an annexure to this Agreement.
1 PREMISES
As identified in Attachment 1 to Annexure C hereto (SAA’s Standard Terms and
Conditions of Lease of Premises). This will be negotiated with the Supplier within the
first six months.
2 ACCESS PERMITS
Access permits listed in Attachment 3 to Annexure C as necessary for the Supplier to
supply the Hygiene Products. These shall be issued by SAA in accordance with and
subject to SAA’s Security policies and procedures.
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ANNEXURE C – PREMISES – ATTACHMENT 1
SAA shall subject to below provisions make available to the Supplier certain office/storage
space (the premises) at SAA’S facilities at no cost or expense to the Supplier from which the
Supplier shall provide the Hygiene Products.
1 SAA SHALL, AT ITS SOLE DISCRETION:
1.1 provide the Premises with the necessary electricity (including required power
points), water, adequate facilities, suitable air-conditioning, parking for
management, storage facilities and appropriate security;
2 THE SUPPLIER SHALL:
2.1 not make any addition or alteration to the Premises without the prior written
consent of SAA, which consent shall not be unreasonably withheld and/or
delayed;
2.2 subject to the provisions of this clause, keep the Premises in a clean and tidy
state at all times and shall, on termination of the Agreement for any reason
whatsoever, deliver the Premises to SAA in the same condition it was in at the
Commencement Date, fair wear and tear excepted.
2.3 should SAA at any time wish to relocate the Premises, SAA shall notify the
Supplier of the alternative suitable Premises, which shall be similar in size to the
Premises and at SAA’s sole discretion. The Premises shall always be located on
SAA’s facilities unless agreed otherwise between the parties. The cost relating to
any relocation of the site shall be for the account of SAA.
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ANNEXURE C – ACCESS PERMITS
This will be provided by SAA and updated from time to time as necessary and shall be
subject to SAA’s physical security infrastructure policy as amended from time to time.
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