06000-form-020 general terms and conditions applicable to orders ...

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06000-form-020 general terms and conditions applicable to orders ...

3 SOLE AGREEMENT3.1 This AGREEMENT constitutes the sole agreement between ARMSCOR DEFENCEINSTITUTES (PTY) LTD and the CONTRACTOR with reference to the PROJECT defined inthe ORDER and no other document not contained in the AGREEMENT or originating therefrom shall be of any force between the parties.4 APPOINTMENT AND DURATION OF AGREEMENT4.1 Should there be any discrepancy or uncertainty regarding any aspect of the ORDER or shouldARMSCOR DEFENCE INSTITUTES (PTY) LTD make a counteroffer to the CONTRACTOR,the CONTRACTOR shall within 14 (fourteen) days after the receipt of the ORDER refer thematter to ARMSCOR DEFENCE INSTITUTES (PTY) LTD in writing for a decision beforecommencing with the execution of the ORDER. Failure by the CONTRACTOR to do so shallabsolve ARMSCOR DEFENCE INSTITUTES (PTY) LTD from all liability resulting from anyincorrect interpretation of the ORDER and the CONTRACTOR shall be responsible for anydeviation from the ORDER resulting from any misunderstanding. Should the CONTRACTORfail to object in writing to a counteroffer made by ARMSCOR DEFENCE INSTITUTES (PTY)LTD within 14 (fourteen) days of receipt of such counteroffer, the CONTRACTOR shall bedeemed to have accepted the counteroffer.4.2 The AGREEMENT shall commence on date of acceptance thereof in terms of 4.1 and shallremain in force until the PROJECT has been completed or until this AGREEMENT has beenterminated or cancelled in terms hereof.4.3 Notwithstanding the provisions of 4.2 above, ARMSCOR DEFENCE INSTITUTES (PTY) LTDis entitled to terminate the AGREEMENT, at any time during the existence hereof, or to cancelor suspend any part of the PROJECT or the DELIVERABLES during the duration of theAGREEMENT, by giving 60 (SIXTY) days prior written notice thereof.4.4 This AGREEMENT is subject to the successful application for a security clearance on the levelas applicable to the PROJECT.4.5 It is expressly agreed that any renewals of this ORDER will not create any expectations ofrights to further renewals or any right to permanent employment.5 OBLIGATIONS OF the CONTRACTOR the CONTRACTOR shall -5.1 Deliver DELIVERABLES to ARMSCOR DEFENCE INSTITUTES (PTY) LTD in accordancewith the AGREEMENT;5.2 Exercise all reasonable skill, care and diligence in the fulfilment of its obligations in termshereof;5.3 Upon demand by ARMSCOR DEFENCE INSTITUTES (PTY) LTD demonstrate to ARMSCORDEFENCE INSTITUTES (PTY) LTD that its obligations under the AGREEMENT have beenproperly fulfilled;5.4 In an orderly manner, take all reasonable steps as may be necessary to bring all activities (orpart thereof) concerned, to an end should the AGREEMENT be cancelled or terminated or thePROJECT or any DELIVERABLES be suspended or abandoned in whole or in part byARMSCOR DEFENCE INSTITUTES (PTY) LTD;5.5 Designate an individual to represent it in respect of the PROJECT and to whom all enquires,notices or communications shall be addressed to and consents be obtained from.6 PAYMENT6.1 ARMSCOR DEFENCE INSTITUTES (PTY) LTD shall pay the CONTRACTOR for the deliveryof the DELIVERABLES and for all disbursements and expenses actually and necessarilyincurred by the CONTRACTOR or its subcontractors in accordance with the provisions setforth in the ORDER and any appendices thereto.6.2 If any of the provisions referred to in 6.1 are revised during the course of the AGREEMENT,then the revised provisions shall be applicable to those DELIVERABLES not yet rendered onthe date of implementation of the revision. The ruling before such revision, shall be applicableto all DELIVERABLES which have been commenced with prior to the implementation of therevision but which have not yet completed at the time of the revision.06000-FORM-020 ISSUE 2 Page 2 of 6


6.3 The CONTRACTOR shall submit invoices to ARMSCOR DEFENCE INSTITUTES (PTY) LTDwhich shall contain, in addition to the requirements relating to value added tax invoices, alsothe ORDER number, project name and number, payment milestone number and isaccompanied by a description of the DELIVERABLES delivered by the CONTRACTOR underthe AGREEMENT, and a description of disbursements and expenses incurred.7 NON-COMPLIANCE WITH CONDITIONS OF CONTRACT AND DAMAGES7.1 Subject to the provisions in paragraph 12, should, all or any of the DELIVERABLES not bedelivered within the time period stipulated in the ORDER; or the CONTRACTOR refuses orfails to carry out the order in accordance with the instructions of ARMSCOR DEFENCEINSTITUTES (PTY) LTD; or the CONTRACTOR goes into provisional or finalsequestration/liquidation; or the CONTRACTOR goes into voluntary liquidation or surrendershis estate; or the CONTRACTOR is dissolved in the case of partnership; or theCONTRACTOR makes an offer of compromise or composition to his creditors, or attempts todo so; or the CONTRACTORS fails to take any steps to have judgement set aside within 7(seven) days after sentence was passed against him; or the CONTRACTOR permits theattachment of any of his assets and fails to uplift such attachment within 14 (fourteen) daysafter the date of attachment; or the CONTRACTOR, where he is a natural person, no longerqualifies to be director of a company in terms of the provisions of the Companies Act 1973; orshould there be any change with regards to the controlling shareholding in the Contractor,where the CONTRACTOR is a company, or the members, where the CONTRACTOR is aclose corporation, or the CONTRACTOR’s form of business without any former notice andapproval, ARMSCOR DEFENCE INSTITUTES (PTY) LTD may in any such event, withoutprejudice to any of its rights under the ORDER, allow the CONTRACTOR to proceed with theORDER in whole or in part, or cancel the ORDER in whole or in part and shall be entitled butnot obliged to reduce the amount of payment to the CONTRACTOR in accordance with themethods stipulated in the ORDER or claim damages from the CONTRACTOR.7.2 In case of non-compliance to the ORDER the following damages may be claimed from theCONTRACTOR : an amount equals to 1/14% (one fourteenth percent) of the price of theitem/s delivered late for every day, including Sunday and public holidays, that such work orsupplies are delayed but up to a maximum of 10% of the order, or the difference between thecost of completing the order, whether by executing the order itself or by concluding a contractwith any other person (if the latter is higher), and any other damages that may have beensuffered by ARMSCOR DEFENCE INSTITUTES (PTY) LTD as a result of theCONTRACTOR’s failure or default.8 CHANGES IN THE PROJECT OR THE DELIVERABLES8.1 In the event of ARMSCOR DEFENCE INSTITUTES (PTY) LTD terminating the AGREEMENTor altering the scope of the PROJECT or DELIVERABLES in accordance with 4.3, whether torectify any errors in the information and/or requirements referred to in 8.1 and 8.2 or for anyother cause whatsoever, which alteration may necessitate alterations to complete parts of thePROJECT or to parts of the PROJECT still in progress of completion and/or which may causea material increase or decrease in the cost of delivering the DELIVERABLES and/or the timeof performance thereof, an equitable adjustment in the remuneration and/or time ofperformance, as the case may be, shall be made.8.2 If the parties cannot agree on an equitable adjustment as aforesaid or on a way to resolvetheir differences, any party may refer the dispute to an arbitrator for determination in terms of13 below.9 OBLIGATIONS OF ARMSCOR DEFENCE INSTITUTES (PTY) LTDARMSCOR DEFENCE INSTITUTES (PTY) LTD shall -9.1 Make available to the CONTRACTOR all information or data which it deems relevant to thePROJECT and DELIVERABLES and which may reasonably be required by theCONTRACTOR;9.2 Advise the CONTRACTOR in writing of its requirements in connection with the PROJECT andDELIVERABLES;9.3 Give consideration to all proposals, reports, sketches, drawings and other documents,software or models relating to the PROJECT and which are laid before it by the06000-FORM-020 ISSUE 2 Page 3 of 6


CONTRACTOR and, whenever prompt action is necessary, inform the CONTRACTOR of itsdecisions in such reasonable time so as not to delay the delivery of the DELIVERABLES;9.4 Make all reasonable arrangements for the CONTRACTOR's entry and access to any public orprivate property, facilities, personnel as well as information required by the CONTRACTOR inorder to fulfil its obligations in terms hereof;9.5 Designate an individual to represent it in respect of the PROJECT and to whom all enquiries,notices or communications shall be addressed to and consents be obtained from;9.6 Give prompt notice to the CONTRACTOR of any defects or deficiencies in theDELIVERABLES when it or its representatives become aware of it;9.7 Make payment to the CONTRACTOR within 30 (THIRTY) days of receipt of an invoice, oncondition that the invoice has been approved by ARMSCOR DEFENCE INSTITUTES (PTY)LTD's representative.10 LIABILITIES AND INDEMNIFICATION10.1 Both parties to this AGREEMENT hereby indemnify and hold harmless the other party inrespect of any claims resulting from the loss of life, injury, damage or losses caused to thirdparties by its personnel, representatives or sub-contractors during the execution of theAGREEMENT.10.2 The CONTRACTOR shall be solely responsible for and hereby indemnifies and holds free andharmless ARMSCOR DEFENCE INSTITUTES (PTY) LTD from any and all loss, expenses,costs, damages, demands and claims arising out of or in connection with injuries includingdeath to any and all persons, employees, including its own employees and employees of subcontractors,and/or damage to property of any or all such persons, in any way sustained inconnection with or by reasons of the performance or execution of this AGREEMENT by theCONTRACTOR.11 OWNERSHIP AND COPYRIGHT11.1 All the documents or software prepared by either party to the AGREEMENT, or by othersappointed by the parties in connection with the PROJECT, remain the property of ARMSCORDEFENCE INSTITUTES (PTY) LTD and the copyright which subsists therein shall remain withARMSCOR DEFENCE INSTITUTES (PTY) LTD subject to the use of such documents orsoftware for purposes of the PROJECT and the CONTRACTOR shall not be entitled, eitherdirectly or indirectly to use such documents or software for any purpose other than thePROJECT, the AGREEMENT or the DELIVERABLES, except with the prior written consent ofARMSCOR DEFENCE INSTITUTES (PTY) LTD..11.2 Unless there is a co-ownership agreement, where the ORDER calls for the design ordevelopment of any item, process or service, the intellectual property rights arising from suchdevelopment or design as well as any rights which in future arise of any improvements theretoshall be deemed foreground intellectual property and all rights thereto shall be vested inARMSCOR DEFENCE INSTITUTES (PTY) LTD.11.3 ARMSCOR DEFENCE INSTITUTES (PTY) LTD will accept the CONTRACTOR’S rights tobackground intellectual property only if the CONTRACTOR can prove or provide evidence thatthe background intellectual property was established prior to the award of the order.11.4 Should a CONTRACTOR significantly modify, alter, amend and/or enhance backgroundintellectual property as part of an ORDER, the significantly modified, altered, amended and/orenhanced intellectual property shall be deemed to be owned by ARMSCOR DEFENCEINSTITUTES (PTY) LTD and becomes foreground intellectual property. To the extent thatsuch modified, altered, amended and/or enhanced intellectual property rights are owned bythe CONTRACTOR, by operation of law or for any other reason, the CONTRACTOR shallassign such intellectual property rights in writing to ARMSCOR DEFENCE INSTITUTES (PTY)LTD at no cost or remuneration if so required by ARMSCOR DEFENCE INSTITUTES (PTY)LTD.11.5 In the case where jointly owned intellectual property is generated, the rights to the jointlyowned intellectual property are as defined in the ORDER, or as agreed between the parties.06000-FORM-020 ISSUE 2 Page 4 of 6


11.6 If the background intellectual property becomes indivisible from the foreground intellectualproperty due to the execution of the ORDER, the combined intellectual property shall becomejointly owned intellectual property.12 FORCE MAJEURE12.1 The date of completion for the PROJECT or part thereof will be extended in respect of anyperiod of delay which the CONTRACTOR can prove to the satisfaction of ARMSCORDEFENCE INSTITUTES (PTY) LTD to be directly due to strikes, accidents to machinery, fire,floods, tempest or any other cause which could not be foreseen or overcome by theCONTRACTOR by exercising reasonable care and caution.12.2 The date of completion of the PROJECT or part thereof shall be extended as a consequenceof the occurrences referred to in 11.1 for such period as may be reasonably required toremove the causes of the delay.12.3 The CONTRACTOR shall notify ARMSCOR DEFENCE INSTITUTES (PTY) LTD in writing ofthe causes of the delay within 7 (SEVEN) days after the commencement of the occurrencecausing the delay and indicate the extension required. If the CONTRACTOR fails to givenotice as aforesaid it shall not be entitled to an extension of the completion date.12.4 The CONTRACTOR shall do its utmost to avoid or remove any cause of delay and shallcontinue with its obligations in accordance with the AGREEMENT on those parts of thePROJECT not affected by the delay. The CONTRACTOR shall restart work on any delayedportion of the PROJECT as soon as the causes for the delay have been removed.12.5 If any delay referred to above continues for a total period of 2 (TWO) months, ARMSCORDEFENCE INSTITUTES (PTY) LTD will be entitled to terminate the ORDER, without prejudiceto the CONTRACTOR's right to payment for DELIVERABLES satisfactorily delivered until dateof termination.13 TERMINATION OF THE AGREEMENT13.1 Notwithstanding 4.3 above, ARMSCOR DEFENCE INSTITUTES (PTY) LTD shall be entitledbut not obliged to terminate the AGREEMENT forthwith without prejudice to any other rightswhich it may be entitled to if application is made for the liquidation, judicial management, orsequestration, as the case may be, of the CONTRACTOR; or if the CONTRACTOR breachesa term or condition of the AGREEMENT and fails to rectify such breach within a period of 7(SEVEN) days after receipt of a notice demanding such rectification; or if the Arbitratorsreferred to in 13 decides that this agreement be terminated; or if the CONTRACTOR dies orbecomes permanently disabled, in the event of the CONTRACTOR being a natural person.13.2 In the event of a termination of this AGREEMENT, the CONTRACTOR undertakes to forthwithdeliver to ARMSCOR DEFENCE INSTITUTES (PTY) LTD or its nominee all documents,software and materials which it has been remunerated for and which relate to the PROJECTand the DELIVERABLES and grant all reasonable assistance to ARMSCOR DEFENCEINSTITUTES (PTY) LTD or its nominee, without charge, to take-over and continue with theCONTRACTOR's obligations in terms of the AGREEMENT.13.3 The provisions of this clause 13 shall serve as an irrevocable consent by both parties to any ofthe proceedings in terms hereof and the parties shall not be entitled to withdraw from theproceedings or maintain that they are not bound by such provisions, and the provisions of thisclause are divisible from the rest of this AGREEMENT and shall remain in full force and effectnotwithstanding determination of this AGREEMENT for any reason whatsoever.14 ARBITRATION14.1 Should any difference or dispute arise between the parties hereto as to the meaning or effectof, or as to any matter whatsoever arising out of any of the provisions of the AGREEMENT, itshall upon the written request of any party be referred to arbitration by one arbitrator to beappointed by agreement between the parties hereto or failing such agreement within 7(SEVEN) days, then to arbitration by two arbitrators of which one is to be appointed by each ofthe parties. The award of any such sole arbitrator or of the two arbitrators or failing theiragreement of an umpire, to be appointed by them within 7 (SEVEN) days, shall be final andbinding upon the parties and may be made an order of court on the application of either party.06000-FORM-020 ISSUE 2 Page 5 of 6


The arbitration shall be governed by the provisions of the Arbitration Act, No 41 of 1965, orany amendment thereof.14.2 All costs incurred in the arbitration shall be carried by the party against whom the arbitrationhas been ruled, unless the arbitrator(s) determine(s) otherwise.15 CONFIDENTIALITY15.1 The contents of the AGREEMENT and any DELIVERABLES delivered in pursuance thereofare confidential and neither party shall disclose any information relating thereto to any personwithout the written consent of the other party to the AGREEMENT or unless it is specificallyrequired for purposes of performance in terms of the AGREEMENT.15.2 The CONTRACTOR undertakes not to disclose any information, related to any product orproduct range of ARMSCOR DEFENCE INSTITUTES (PTY) LTD (PTY) LTD and inclusive ofproducts or product ranges forming part of the AGREEMENT, to members or representativesof the media, or to answer any questions put forward by the media and which questions arerelated to such products or product ranges, without obtaining prior written and specificauthorization from ARMSCOR DEFENCE INSTITUTES (PTY) LTD authorizing theCONTRACTOR to disclose such information or answer such questions by the use ofspecifically worded statements or answers.16 CESSION16.1 Neither party shall cede or transfer any of its rights in terms of this AGREEMENT to any party,without the prior written consent of the other party to this AGREEMENT.17 DOMICILIA AND NOTICES17.1 All notices required to be served by one party to another shall be given in writing by prepaidregistered post or delivered by hand to chosen domicilia citandi et executandi of the respectiveparties referred to in 1.17.2 Either party may from time to time change that party's domicilium to any other address in theRepublic of South Africa, by delivery of a written notice to the other party to that effect.17.3 Any notice addressed by any party to the other party shall, if posted by prepaid registered postto the addressee's domicilium be deemed to have been received by the addressee on the fifthday following the date of such posting from a post office in the Republic of South Africa or ifdelivered by hand to the addressee's domicilium, be deemed to have been received by theaddressee on the date of delivery.18 APPLICABLE LAWS18.1 This AGREEMENT is subject to and shall be interpreted and construed in terms of the laws ofthe Republic of South Africa.19 JURISDICTION19.1 If any dispute whatsoever arises from this agreement between the parties, the parties subjectthemselves to the Jurisdiction of the Magistrate's Court, without detracting from either partiesright to institute action in the Supreme Court of S.A.06000-FORM-020 ISSUE 2 Page 6 of 6

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