Terms and Conditions


Tshipi é Ntle Manganese Mining (PTY) Ltd


General terms and conditions – applicable to service provider(s) as referred to in the purchase order where there is no contract agreement in place

  • 1.1
    In theseterms and conditions, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
    • 1.1.1
      "Additional Services" means the additional services to be provided by the Service Provider to Tshipi as and when requested by Tshipi;
    • 1.1.2
      "AFSA" means the Arbitration Foundation of South Africa;
    • 1.1.3
      "Applicable Law" means any applicable South African law, including inter alia, Environmental Laws, Health and Safety Laws, the common law, statute, subordinate legislation, treaty, guideline, instruction, directive, rule, by-law, regulation, ordinance, protocol, code, standard6, requirement, order, judgment, injunction, award or decree of any applicable Governmental Authority having the force of law;
    • 1.1.4
      "Commencement Date" means the date which the Service Provider is appointed to provide services to Tshipi in terms of the letter of award;
    • 1.1.5
      "Companies Act" means the Companies Act, No. 71 of 2008 as may be amended from time to time;
    • 1.1.6
      "Contract Period" shall have the meaning set out in clause 4.1;
    • 1.1.7
      "Environment" shall have the meaning ascribed to it in section 1 of the National Environmental Management Act, No. 107 of 1998;
    • 1.1.8
      "Environmental Laws" means all applicable laws including, for the avoidance of doubt, common law, statutes, regulations, statutory guidance notes, duties of care and final and binding court and other tribunal decisions of any relevant jurisdiction which is capable of enforcement by legal process in South Africa, whose purpose is to protect, or prevent pollution or degradation of the Environment, promote sustainable development practices, protect human health or to regulate emissions, discharges, or releases of hazardous substances into the Environment, or to regulate the use, treatment, storage, burial, disposal, transport or handling of waste and/or substances, and all by-laws, codes, regulations, permit conditions, notices, directives or orders issued or promulgated or approved thereunder to the extent that the same have force of law;
    • 1.1.9
      "Fees" means the fees payable by Tshipi to the Service Provider for the provision of Services;
    • 1.1.10
      "Force Majeure" has the meaning ascribed to it in clause 16.1 below;
    • 1.1.11
      "Good Industry Practice" means adherence to the standards, practices or methods and procedures and the exercise of that degree of skill, diligence, judgement, prudence and foresight which would reasonably and ordinarily be expected from time to time from an international skilled and experienced contractor or professional conducting any activity or any obligation of a Party in these terms and conditions and complying with all Applicable Law;
    • 1.1.12
      "Governmental Authority" means any government or governmental (national, provincial, regional, district, municipal or local), administrative, regulatory, fiscal or judicial authority, agency, body, court, department, commission, tribunal, registry or any state-owned, state-controlled or legislatively constituted authority, agency or commission which principally performs public, governmental or regulatory functions;
    • 1.1.13
      "Health and Safety Laws" means all applicable South African health and safety laws, legislation, statutes, ordinances, by-laws and regulations, including but not limited to the MHSA and the OHSA (whichever may be applicable in the circumstances), as well as any instructions, directives and guidelines issued by the appropriate regulator;
    • 1.1.14
      "Insolvency Act" means the Insolvency Act, No. 24 of 1936;
    • 1.1.15
      "Loss" means without limitation, all claims, losses, damages, costs, charges, liabilities, penalties, interest, fines and expenses of whatsoever nature (including legal and other professional charges and expenses on an attorney and own client scale) together with any VAT thereon;
    • 1.1.16
      "MHSA" means the Mine Health and Safety Act, No. 29 of 1996;
    • 1.1.17
      "Mine" means Tshipi's Manganese mine, known as the Tshipi Borwa mine, located on the farm Mamatwan 331 in the Kuruman Magisterial District near Kathu in the Northern Cape Province of South Africa;
    • 1.1.18
      "OHSA" means the Occupational Health and Safety Act, No. 85 of 1993;
    • 1.1.19
      "Parties" means the parties to these terms and conditions, being individually and collectively Tshipi and the Service Provider;
    • 1.1.20
      "Permits" means all permits, authorisations, exemptions, permissions, licences and/or entitlements issued by any Governmental Authority to the Service Provider or Tshipi, pursuant to any Applicable Law, including Environmental and Health and Safety Laws, and any amendment, variation, modification or transfer thereof;
    • 1.1.21
      "Insolvency Act" means the Insolvency Act, No. 24 of 1936;
    • 1.1.22
      "Rand" or "R" means South African Rand, the lawful currency or legal tender, from time to time, of South Africa;
    • 1.1.23
      "Related Persons" means in relation to a Party, that Party's shareholders, representatives, officers, directors, advisers and Personnel and, in the case of contractors and/or sub-contractors or agents of the Service Provider, those contractors' and/or sub-contractors' or agents' shareholders, employees, representatives, directors, officers, consultants, agents, advisers, contractors and sub-contractors;
    • 1.1.24
      "Service Provider" means a juristic person who is contracted to provide services to Tshipi in terms of these terms and conditions;
    • 1.1.25
      "Service Provider Representative" means the person authorised andappointed to represent the Service provider;
    • 1.1.26
      "Services" means the services to be provided by the Service Provider to Tshipi;
    • 1.1.27
      "South Africa" means the Republic of South Africa;
    • 1.1.28
      "Specifications" means the specifications upon which the Services will be provided by the Service Provider;
    • 1.1.29
      "Tax Invoice" shall have the meaning ascribed to it in section 1 of the VAT Act;
    • 1.1.30
      "Termination Date" means the date on which the Service Provider’s services are completed or terminatedby Tshipi;
    • 1.1.31
      "Tshipi" means Tshipi é Ntle Manganese Mining Proprietary Limited, registration number 2008/003117/07, a private company incorporated in accordance with the laws of South Africa;
    • 1.1.32
      "Tshipi Representative" means the person authorised and appointed to represent Tshipi;
    • 1.1.33
      "VAT" means the value-added tax levied in terms of the VAT Act; and
    • 1.1.34
      "VAT Act" means the Value-Added Tax Act, No. 89 of 1991.
  • 1.2
    In these Terms and Conditions:
    • 1.2.1
      clause headings and the heading of the Terms and conditions are for convenience only and are not to be used in its interpretation;
    • 1.2.2
      an expression which denotes:
        any gender includes the other genders;
        a natural person includes a juristic person and vice versa;
        the singular includes the plural and vice versa;
        a Party includes a reference to that Party's successors in title and assigns allowed at law; and
        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 the Terms and Conditions to:
    • 1.3.1
      "business hours" shall be construed as being the hours between 08h00 and 17h00 on any business day. Any reference to time shall be based upon South African Standard Time;
    • 1.3.2
      "days" shall be construed as calendar days unless qualified by the word "business", in which instance a "business day" will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;
    • 1.3.3
      "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;requirements of, or instructions by any Governmental Body; and the common law, and "law" shall have a similar meaning; and
    • 1.3.4
      "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
    Unless otherwise provided, defined terms appearing in the terms and conditions 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.
  • 1.6
    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.
  • 1.7
    1.7 Except to the extent that any provision of the terms and conditions expressly provides otherwise, if the only day or the last day for the exercise of any right, performance of any obligation or taking (or procuring the taking of) any actions and provision of the terms and conditions falls on a day which is not a business day, such right shall be capable of being exercised, or such obligation performed, or action taken on the immediately succeeding business day.
  • 1.8
    1.8 The rule of construction that the terms and conditions shall be interpreted against the Party responsible for the drafting of the terms and conditions, shall not apply.
  • 1.9
    1.9 No provision of the terms and conditions shall (unless otherwise stipulated) constitute a stipulation for the benefit of any person (stipulatio alteri) who is not a Party to the terms and conditions.
  • 1.10
    In the terms and conditions, the words "clause" and "clausesrefer" to clauses of the Terms and conditions.
Tshipi wishes to appoint the Service Provider to undertake the Services and the Service Provider wishes to provide such Services in line withthese terms and conditions.
Tshipi appoints the Service Provider with effect from the Commencement Date, which appointment the Service Provider accepts, to provide the Services.
  • 4.1
    Theterms and conditions shall commence on the Commencement Date and shall continue until (and including) the Termination Date, unless terminated earlier in accordance with the provisions of clause 18 or extended in accordance with clause 4.2 ("Contract Period").
  • 4.2
    The Parties may, on or before the Termination Date, extend the term and conditions by further periods agreed by them in accordance with clause 23.2.
  • 5.1
    Theterms and conditions between the Parties is one between the Parties as independent contractors and shall not:
    • 5.1.1
      in any way be held to construe or support the inference of the existence of a relationship of agency, employment, partnership, joint venture or association between Tshipi, on the one hand, and the Service Provider and/or its Related Persons, on the other; or
    • 5.1.2
      entitle either Party to bind or attempt to bind the other Party, or to represent to any third person that it has the authority to bind the other Party or to confer any obligation on the other Party, unless specifically mandated to do so in writing by the other Party.
  • 5.2
    A Party shall be entitled to revoke the appointment of its Representative and appoint a replacement by written notice to the other Party.
  • 6.1
    The Service Provider shall submit Tax Invoices to Tshipi, accompanied by appropriate supporting documentation, in respect of the Services provided by the Service Provider in each relevant month by no later than the 5th Business Day of the month immediately following the month in which the Services were so rendered.
  • 6.2
    Each Tax Invoice shall be in a format approved by the Tshipi Representative from time to time and shall include, as a minimum:
    • 6.2.1
      the Fees payable;
    • 6.2.2
      the total VAT amount in Rands or if payment is required in any currency other than Rand, the equivalent amount excluding the VAT amount as the case may be; and
    • 6.2.3
      the Service Provider's registered company name (if a juristic entity), registered address and VAT number or the equivalent of a VAT number, as the case may be, failing which Tshipi shall be entitled to withhold payment of the relevant Tax Invoice until such time as it has received a replacement Tax Invoice.
  • 6.3
    The Service Provider shall promptly provide any information reasonably required by Tshipi to substantiate a Tax Invoice. In the event that a Tax Invoice and any supporting documentation are incomplete or incorrect, payment of such Tax Invoices will only be effected not later than 20business days following the date of receipt of a correct Tax Invoice and the relevant supporting documentation (if any) by Tshipi.
  • 7.1
    In consideration for the Service Provider providing the Services in accordance with the terms and conditions, Tshipi shall pay the Service Provider the Fees, as evidenced by valid Tax Invoices and Statements.
  • 7.2
    Subject to clauses 6.3and 7.3, all Tax Invoices shall be paid by Tshipi to the Service Provider within 30 days from the date on which Tshipi received the relevant Statement from the Service Provider. Tshipi shall at all times be entitled to the Service Provider's standard discount for prompt payment, if any.
  • 7.3
    Should Tshipi, at any time, during the Contract Period be dissatisfied with the Services rendered or any part thereof, it may, on written notification to the Service Provider, withhold payment of the Fees or any part thereof to the Service Provider until the dispute in relation thereto is resolved. Should the Parties be unable to resolve the dispute within 10 business days, then the Parties shall refer such matter to be settled in accordance with the dispute resolution procedure set out in clause 20.
  • 7.4
    Notwithstanding the provisions of any Applicable Law to the contrary, the Service Provider shall not be entitled to recover in addition to the Fees any sum in consequence of or arising from any duty or increase thereon imposed in terms of any legislation, whether South African or otherwise, relating to customs and excise, VAT, royalties, any taxes, including withholding taxes and the like.
  • 7.5
    Any dispute arising out of or in connection with the Fees shall be subject to the dispute resolution procedure set out in clause 20.
  • 8.1
    Compliance The Service Provider shall render the Services to Tshipi with effect from the Commencement Date to the satisfaction of Tshipi, in strict compliance with:
    • 8.1.1
      the Specifications;
    • 8.1.2
      Good Industry Practice;
    • 8.1.3
      all Applicable Law; and
    • 8.1.4
      any other reasonable requirements of Tshipi notified to the Service Provider from time to time, and shall, at all times, ensure that inferior or defective Equipment is not used in the performance of the Services.
  • 8.2
    • 8.2.1
      Documentation which may require approval of the Tshipi Representative pursuant to the performance of the Services shall be submitted to the Tshipi Representative as and when required by Tshipi.
    • 8.2.2
      Upon completion of the Services, the Service Provider shall provide to the Tshipi Representative all such documentation which may be required for purposes of operating and/or maintenance purposes in respect of the Services, if any. Such documentation shall be provided to Tshipi by the Service Provider in such form and manner as agreed between the Tshipi Representative and the Service Provider Representative.
    • 8.2.3
      Ownership of all documentation arising out of the performance of the Services shall vest in Tshipi. Tshipi shall have full right of disposal of such documentation without payment of any further consideration to the Service Provider.
  • 8.3
    • 8.3.1
      Upon completion of the Services, the Service Provider Representative shall notify the Tshipi Representative accordingly.
    • 8.3.2
      The Tshipi Representative shall promptly test and inspect the Services performed. If the Services rendered by the Service Provider do not comply with:
        the Specifications; or
        the requirements of theterms and conditions generally (collectively, "Service Standards"), Tshipi may at its option and without prejudice to its rights under the terms and conditions or at law (including without limitation the right to termination under clause 18), require the Service Provider, at its own cost, to re-perform the Services or make good any non-compliance.
  • 9.1

    The Tshipi Representative shall be entitled to inspect the Services being performed at any time to determine whether the Services are being performed in accordance with the Service Standards.

    If the results of an inspection reveal that the Services are not being performed in accordance with the Service Standards, the Tshipi Representative shall notify the Service Provider Representative of such defect and/or failure and direct the Service Provider to take such measures as may be required to remedy the defect and/or failure to ensure that the Services are performed in accordance with the Service Standards, at the Service Provider's cost and expense.

  • 10.1
    In addition to any other provision of the terms and conditions, in providing the Services, the Service Provider must (without limiting any other obligation under the terms and conditions):
    • 10.1.1
      not unduly interfere with Tshipi's business;
    • 10.1.2
      ensure that any goods supplied as part of the Services, if applicable, are fit for the purpose for which such goods are intended and of merchantable quality and that such goods comply with the provisions of section 21 of the MHSA or section 10 of the OHSA, whichever may be applicable in the circumstances; and
    • 10.1.3
      insofar as the Services are performed on Tshipi's premises, comply with any requirements of Tshipi, including any environmental, health and safety and management plans, and ensure that any area occupied by the Service Provider is left in a clean, safe and secure condition.
  • 10.2
    The Service Provider is responsible for providing all superintendence, labour, Equipment and all other things at its own cost, whether of a temporary or permanent nature, and obtaining all Permits, consents, accreditations, certifications and/or notices required to provide the Services.
  • 10.3
    The Service Provider assumes full responsibility for the actions of its Personnel in performing the Services and shall be solely responsible for their supervision, direction and control, payment of salary, workers' compensation, disability benefits and the like.
  • 10.4
    The Service Provider undertakes to co-operate fully with Tshipi in respect of all matters associated with health and safety including in relation to the provision of information to Tshipi in the event of any audits, inspections and investigations related to health and safety.
  • 10.5
    The Service Provider must ensure that:
    • 10.5.1
      it has an adequate number of competent Personnel available to render the Services;
    • 10.5.2
      all Personnel are appropriately trained, experienced and have been assessed to be qualified to render the Services and, to this end, that the Personnel have been trained at the Service Provider's expense; and
    • 10.5.3
      to the extent that Tshipi may so require, its personnel accept statutory appointments in terms of the MHSA or OHSA, whichever may be applicable in the circumstances, and that such Personnel comply with all statutory obligations placed upon them in the discharge of the Services, in accordance with the provisions of the terms and conditions.
  • 10.6
    The Service Provider is responsible:
    • 10.6.1
      for the transportation of its Personnel to and from the site where the Services are to be performed. The Service Provider shall ensure that all vehicles and drivers used for this purpose are properly licensed and comply with the requirements of any Applicable Law, including road, safety and traffic laws. Any vehicles belonging to the Service Provider must comply fully with Tshipi's health and safety requirements for trackless mobile machinery including licencing and approval by the responsible engineer before they will be permitted to access the Mine;
    • 10.6.2
      for the training of its Personnel to carry out the Services in compliance with the Applicable Law, including the Environmental Laws and Health and Safety Laws, including that:
        its Personnel attend at any induction or other training that Tshipi may require from time to time at Tshipi’s cost; and
        proof of training and competency of all Personnel is provided to Tshipi and that a record of all training provided to its Personnel is provided to Tshipi 10 days after signing of contract and thereafter within 7days of any additional training being provided;
    • 10.6.3
      for the housing and feeding of its Personnel, if applicable; and
    • 10.6.4
      for the health and safety of its Personnel including, but not limited to, the proper assessment of risk and implementation of control measures to ensure that work can be performed safely.
  • 10.7
    The Service Provider shall at all times take all necessary and reasonable precautions to prevent any pollution occurrences or environmental degradation while the Services are being performed.
  • 10.8
    The Service Provider shall at all times take all necessary precautions to ensure that its Personnel comply with any Applicable Law and instructions, to prevent any unlawful, riotous or disorderly conduct by or among its Personnel, and to preserve peace and protection of persons and property at or near the place at which the Services are being performed.
  • 11.1
    Subject to the provisions of this clause 11, Tshipi shall allow the Service Provider and its Personnel access to Tshipi's premises at which the Services are to be provided by the Service Provider for the purpose of fulfilling its obligations in the Terms and conditions, at all reasonable times, for the duration of theterms and conditions.
  • 11.2
    The Service Provider shall procure that it and its Personnel comply with any policies, practices, codes of conduct and procedures, including any Applicable Law (including without limitation, the Environmental Laws and Health and Safety Laws), environmental, health and safety and management plans which may be of general application to Tshipi's staff and any persons granted access to the Mine.
  • 12.1
    The Service Provider shall not be entitled to (i) cede, delegate or assign the terms and conditions or any part thereof or any benefit or interest therein or (ii) sub-contract any part of the Services to any third party without the prior written consent of Tshipi.
  • 12.2
    Tshipi may cede, delegate or assign the terms and conditions to any entity which controls, is controlled by or under common control with Tshipi or which succeeds to all or substantially all of Tshipi's assets and business.
  • 13.1
    The Service Provider acknowledges that Tshipi relies on the Service Provider's specialised knowledge and expertise in the provision of the Services, and accordingly, the Service Provider warrants at the Signature Date and at all times during the Contract Period that:
    • 13.1.1
      it is a company, duly incorporated under the laws of South Africa and that it has the power to own its assets and carry on its business as it is being conducted;
    • 13.1.2
      it has the power and has taken all necessary corporate action to authorise the entry into, performance and delivery of the terms and conditions and the transaction contemplated herein;
    • 13.1.3
      the Service Provider has a comprehensive understanding of, and is compliant with, the regulatory framework relevant to the rendering of the Services;
    • 13.1.4
      all Permits, consents, accreditations, certifications and/or notices required by or under any Applicable Law or any Governmental Authority in order to enable the Service Provider lawfully to enter into and perform the obligations expressed to be assumed by it in this terms and conditions (including the performance of the Services) have been obtained and will be maintained for the duration of Contract Period by the Service Provider at its sole cost and expense (including the payment of all fees and taxes associated with obtaining and/or maintaining such Permits, consents, accreditations, certifications and/or notices);
    • 13.1.5
      the terms and conditionsconstitutes, or when executed in accordance with its terms shall constitute, legal, valid and binding obligations;
    • 13.1.6
      it and each member of its Personnel rendering the Services has the appropriate expertise, experience, qualifications, competency, training and efficiency necessary for the proper performance of the Services and it has an adequate number of Personnel available to perform the Services in accordance with the Specifications and Good Industry Practice;
    • 13.1.7
      it and each member of its Personnel rendering the Services is familiar with the duties and obligations imposed on them by the terms and conditions and all Applicable Law;
    • 13.1.8
      the performance of the Services does not and will not infringe the rights of any third party or cause a third party to suffer Losses;
    • 13.1.9
      the material and equipment necessary for the performance of the Services shall:
        be free of defects (latent and patent) in design, workmanship and material; and
        be fit for their intended purpose; and
  • 13.2
    The Service Provider acknowledges that Tshipi is entering into the terms and conditions in reliance upon each of the warranties set out in clause 13.1 ("Warranties") and that the Warranties are given with the intention of inducing Tshipi (which has been so induced) to enter into the terms and conditions.
  • 13.3
    Each Warranty shall be:
    • 13.3.1
      deemed to be material;
    • 13.3.2
      a continuing representation and Warranty and shall survive the termination of the terms and conditions; and
    • 13.3.3
      a separate Warranty and in no way limited or restricted by any reference to, or inference from, the terms of any other Warranty or by any other provision in the terms and conditions.
  • 13.4
    The fact that the Service Provider has given the Warranties listed above shall not in any way be construed as relieving the Service Provider from any liability which it may have at common law arising out of a failure to disclose any fact to Tshipi affecting theterms and conditions or the Services performed thereunder.
  • 14.1
    a negligent, fraudulent or wrongful act or omission by the Service Provider or its Personnel under or in relation to the terms and conditions;
  • 14.2
    the Service Provider or its Personnel breaching or failing to comply (or Tshipi being held liable or deemed to have breached or failed to comply as a direct result of a breach or failure by the Service Provider) with any Applicable Law;
  • 14.3
    any breach by the Service Provider or its Personnel of any of the terms, conditions, representations, or Warranties contained in the terms and conditions, except to the extent that the Loss is directly attributable to the fraud, wilful default or gross negligence of Tshipi.
  • 15.1
    Neither Tshipi nor any of its Related Persons shall in any manner whatsoever be liable to the Service Provider in respect of any Losses which may be suffered and/or incurred by the Service Provider arising from or in connection with the Services or in any other way related to this terms and conditions, except to the extent that such Losses are due to the fraud, wilful default or gross negligence of Tshipi.
  • 15.2
    Under no circumstances will Tshipi and/or any of its Related Persons be liable to the Service Provider for any indirect, consequential, special, incidental or punitive damages or for any loss of profits or loss of business opportunities.
  • 16.1
    In the event of any act of God, acts or omissions of any government or provincial or local or similar authority, war, warlike operation, rebellion, riot, civil commotion, fire, accident, industrial unrest, lawful strike, lockout, combination of workmen, interference of trade unions, suspension of labour or (without regard to the foregoing enumeration) of any circumstances arising or action taken beyond or outside the reasonable control of the Parties hereto preventing them or any of them from the performance of any obligation hereunder (any such event hereinafter called "Force Majeure"), then the Party affected by such Force Majeure will be relieved of its obligations hereunder during the period that such Force Majeure continues, but only to the extent so prevented and will not be liable for any delay or failure in the performance of any obligations hereunder, or loss or damage which the other Party may suffer due to or resulting from the Force Majeure, provided always that written notice will be promptly given of any such inability by the affected Party. Any Party invoking Force Majeure will upon termination of such Force Majeure give prompt written notice thereof to the other Party. Should Force Majeure continue for a period of more than 30 days, then the Party not affected by Force Majeure will without any agreed mechanism in place to overcome or abate the Force Majeure, be entitled forthwith to cancel the terms and conditions.
  • 17.1
    If any Party breaches any material provision or term of the terms and conditions (other than those provisions which contain their own remedies or limit the remedies in the event of a breach thereof) and fails to remedy such breach within 10 business days of receipt of written notice from the aggrieved Party requiring it to do so (or if it is not reasonably possible to remedy the breach within 10 business days, within such further period as may be reasonable in the circumstances, provided that the Party in breach furnishes evidence within the aforementioned period of 10 business days, reasonably satisfactory to the aggrieved Party, that it has taken whatever steps are available to it to commence remedying the breach), then the aggrieved Party shall be entitled without notice, in addition to any other remedy available to it at law or under the terms and conditions (including obtaining an interdict) to claim specific performance without prejudice to the aggrieved Party's rights to claim damages (other than consequential damages which may not be claimed).

Notwithstanding anything to the contrary herein contained:

  • 18.1
    Tshipi may elect to terminate the terms and conditions for its convenience by providing the Service Provider with 30 days' prior written notice stating Tshipi's election to terminate for its convenience and the effective date of such termination; or
  • 18.2
    the Parties may mutually agree in writing to terminate the terms and conditions at any time.

Upon termination or expiry of the terms and conditions in whole or in part for any reason whatsoever:

  • 19.1
    Tshipi shall settle any outstanding Tax Invoices in respect of Services rendered by the Service Provider; and
  • 19.2
    the Service Provider shall, at its sole cost and expense, remove all of its Equipment of whatsoever nature, if applicable, brought onto Tshipi's premises and restore such premises to the condition in which it was when the Service Provider occupied same.
  • 20.1
    • 20.1.1
      All complaints or service issues arising in respect of or relating to the Services will be escalated immediately to the appropriate senior level, resolved as soon as reasonably possible, documented, and kept on file together with details of the cause of the problem and how it will be avoided in the future. Details should be included in a monthly management information report. The senior escalation person for the Service Provider shall be member of the Service Provider’s staff as may be notified to Tshipi in writing from time to time.
    • 20.1.2
      If the Parties have exhausted the dispute resolution mechanism set out in this clause 20.1.1, the provisions of the remainder of this clause 20 shall apply.
  • 20.2
    • 20.2.1
      In the event of there being any dispute (excluding any dispute for which the terms and conditions provides a specific procedure for resolution) between the Parties arising out of the terms and conditions which cannot be resolved by the respective Chief Executive Officers of the Parties within a period of 10 business days from the date on which the dispute arose, the said dispute shall on written demand by either Party be submitted to mediation as set out in clauses 20.2.2 to 20.2.6.
    • 20.2.2
      To initiate mediation a Party must give the other Party notice in writing ("a mediation notice") requesting mediation and briefly setting out the issues which are to be mediated.
    • 20.2.3
      The mediator will be agreed by the Parties and failing terms and conditions within 20 days of receipt of a mediation notice, will be appointed by the AFSA.
    • 20.2.4
      The mediation will start not later than the later of 20 days after the appointment of the mediator or 40 days after a Party has given a mediation notice. The mediation will take place in Johannesburg and the language of the mediation will be English.
    • 20.2.5
      The procedure for the mediation will be determined by the mediator in consultation with the Parties and recorded in a written agreement between the Parties and the mediator. The costs of the mediator will be shared equally by the Parties unless otherwise agreed in writing. Each Party will bear its own costs arising out of or in connection with the mediation.
    • 20.2.6
      If the dispute is not settled by mediation for any reason, or if the mediation has started but is not settled within 21 days of starting, either Party may terminate the mediation by notice in writing to the other Party and the mediator and may, after effecting termination, initiate arbitration proceedings in accordance with the provisions of the terms and conditions.
  • 20.3
    • 20.3.1
      Should the Parties not be able to settle the matter through mediation in terms of clause 20.1, then the said dispute shall on written demand by either Party be submitted to arbitration in Sandton, Johannesburg in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
    • 20.3.2
      Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before three arbitrators appointed as per the said rules, unless the Parties agree to appoint one arbitrator. The arbitral award shall be final and binding upon the Parties and the language of arbitration shall be English.
    • 20.3.3
      Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
    • 20.3.4
      Any arbitration in terms of this clause 20.3 (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.
    • 20.3.5
      The Parties agree that the written demand by a Party to the dispute in terms of clause 20.3 that the dispute be submitted to arbitration, is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No 68 of 1969.
    • 20.3.6
      The arbitrator shall make a determination of the costs award.
  • 20.4
    Application to Court for Urgent Interim Relief

    Nothing contained in this clause 20 shall prohibit a Party from approaching any court of competent jurisdiction for urgent interim relief pending determination of the dispute by arbitration.

  • 21.1
    The Parties select as their respective domiciliacitandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under the terms and conditions, the said physical addresses as well as the following email addresses:
    • 21.1.1

      in the case of Tshipi to:


      Physical Address:

      First Floor, Sable Building
      Fairway Office Park
      52 Grosvenor Road
      Bryanston, 2021

      Email Address: This email address is being protected from spambots. You need JavaScript enabled to view it.

      Marked for the attention of: Legal Counsel

    • 21.1.2
      Provided that a Party may change its domicilium to another physical address in the Republic of South Africa (provided that such physical address is not a post office box or poste restante), or may change its address for the purposes of notices to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective 5 business days after receipt of the notice of the change.
  • 22.1
    The terms and conditions will in all respects be governed by and construed under the laws of the Republic of South Africa.
  • 22.2
    Subject to clause 20, the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa, Gauteng Local Division, in any dispute arising from or in connection with the terms and conditions.
  • 23.1
    Whole terms and Conditions
    • 23.1.1
      The terms and conditions constitutes the whole of the terms and conditions between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of the terms and conditions not incorporated in the terms and conditions shall be binding on either of the Parties.
    • 23.1.2
      The terms and conditions supersedes and replaces any and all terms and conditions between the Parties (and other persons, as may be applicable) and undertakings given to or on behalf of the Parties (and other persons, as may be applicable) in relation to the subject matter hereof.
  • 23.2
    Variations to be in Writing

    No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of the terms and conditions will be of any force or effect unless in writing and signed by the Parties.