TF18C0416 (Generator)
DRAFT
MEMORANDUM OF AGREEMENT
RE: SUPPLY,INSTALLATION AND COMMISSIONING OF A GENERATOR AT SAA’S CARGO FACILITY (PORT ELIZABETH)
BETWEEN
SOUTH AFRICAN AIRWAYS SOC LIMITED
Registration No.: 1997/022444/30
A company registered in accordance with the company laws of South Africa
(hereinafter referred to as “SAA”)
AND
______
Registration No.: ______
A company registered in accordance with the company laws of South Africa
(hereinafter referred to as “the Contractor”)
1
TABLE OF CONTENTS
Preamble
1DEFINITIONS AND INTERPRETATION
2TERM
3SERVICE
4REPRESENTATIONS AND WARRANTIES
5CONDITIONS
6COST/CHARGES
7SETTLEMENT OF ACCOUNTS
8INDEMNIFICATION and insurance
9FORCE MAJEURE
10BREACH
11TERMINATION
12NOTICES AND CORRESPONDENCE
13GENERAL
Annexure 1 - Services, Charges and Penalties
Annexure 2 – Performance Programme and Payments
Annexure 3 – Performance Guarantee
Annexure 4 – Health and Safety Agreement
Annexure 5 – Insurance
1
This Agreement is made and entered into on the ____ day of ______2016 (the “Effective Date”)
BETWEEN
SOUTH AFRICAN AIRWAYS SOC LIMITED
a company (registration number 1997/022444/30) with limited liability and duly incorporated under the Company Laws of the Republic of South Africa with offices at Airways Park, Jones Road, OR Tambo International Airport, Republic of South Africa (hereinafter referred to as "SAA"),
AND
______
A company (registration number ______) duly registered under the Company Laws of the Republic of South Africa with offices at ______(hereinafter referred to as the "the Contractor").
WHEREAS:
ASAA called for tenders for the supply and installation of a generator at SAA’s Cargo Facility (Port Elizabeth),tender GSM RFP100/2015 (“the Tender”), and
BThe Contractor submitted a bid for the Tender, and
CSAA has awarded the Tender to the Contractor, and
DThe start date of the project will be ______2016 and the final completion date will be ______20__.
NOW THEREFORE it is agreed as follows:-
1DEFINITIONS AND INTERPRETATION
1.1In this Agreement, unless inconsistent with or otherwise indicated by the context the following terms shall have the meanings assigned to them hereunder and cognitive expressions shall have corresponding meanings, namely-
1.1.1“Act/s” means the Machinery and Occupational Safety Act, 1983 (Act 6 of 1983) and the Occupational Health and Safety Act, 1993 (Act 85 of 1993), as amended form time to time, and any expression/s to which a meaning/s has been assigned in the Act/s shall have the meaning/s so assigned;
1.1.2“business day” means each day other than a Saturday, Sunday or a proclaimed public holiday in the Republic of South Africa;
1.1.3“Cost of Service fee” means cost of the Service as specified in Annexure 1 hereto, to be charged by the Contractor to SAA in accordance with the provisions of this Agreement, exclusive of VAT;
1.1.4“Effective Date” means the date of the Agreement as first written above subject to signature by both parties;
1.1.5“Equipment” means the related items to be supplied installed and commissioned by the Contractor in terms of Tender GSM RFP100/2015;
1.1.6“Intellectual Property” means any copyright, designs, design rights, patent applications and any rights to inventions, knowhow, trade and business names, documents, and all also include any trade secrets, logos and devices, data bases, software, websites, trade and service marks whether registered or unregistered and any application therefore and all rights in confidential information which relate in any way to this Agreement;
1.1.7“Interest” means Standard Bank’s prime lending rate from time to time.
1.1.8“law” means any present or future law, and includes statutes, regulations, ordinances, rules and directives of any government entity or other relevant, applicable authority and the term “applicable law” shall bear a corresponding meaning;
1.1.9“parties” means SAA and ______;
1.1.10“premises” means the premises of SAA identified in Annexure 1 hereto;
1.1.11“Regulations” means the General Safety Regulations, 1986, issued by the Minister of Manpower in terms of section 35 of the Act as would more fully appear from Government Notice No: R:1031 dated 30 May 1986, read with the Incorporation of Safety Standards, incorporatedby the Minister of Manpower in terms of section 36(1) of the Act as would more fully appear from General Notice No: R:283 dated 28 March 1988;
1.1.12“Safety Standards” means all applicable SABS Codes;
1.1.13“Services” means collectively the services required by SAA in terms of the Tender including but not limited to the supply, installation and commissioning of the Equipment, all ancillary or related activities and any other requirements as indicated in the referenced tender and as further detailed in this Agreement and any Annexures hereto;
1.1.14“Tax Invoice/invoice” means an invoice as per the Value Added Tax act, Act Number 39 of 1991, as amended;
1.1.15“Tender” means the tender GSMRFP100/2015 as published by SAA and awarded to the Contractor on the basis of their bid incorporated herein by reference;
1.1.16“Term” means the period commencing on the Effective Date and terminating on full performance by all parties in terms of the provisions of the Tender and any warranties or support services required pursuant to this Agreement have been fully discharged to the satisfaction of SAA or upon the earlier termination of this Agreement (as provided for herein) plus an additional period of twelve(12) months after satisfactory completion and commissioning of the project programme to allow for close out of the project;
1.1.17"the/this Agreement" means the agreement as set out in this document and all annexures thereto;
1.1.18“VAT” means Value-Added Tax levied on the monthly service fee in accordance with the Value Added Tax Act, No 89 of 1991, as amended.
1.2Any reference tothe masculine gender shall include the other two genders, the singular shall include the plural, natural persons shall include legal persons, and vice versa;
1.3Any provision of a statue, rule or regulation or enactmentshall be construed as a reference to that provision as from time to time amended or extended;
1.4SAA or the Contractor shall include their respective directors, officers, employees, agents and sub-contractors;
1.5The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof unless a contrary intention clearly appears.
1.6If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, effect shall be given to it as if it were a substantive clause in the body of this Agreement, notwithstanding that it is only contained in the Interpretation and Definitions Clause.
1.7If any period is referred to in this Agreement by way of reference to a number of days, the days shall be reckoned exclusively of first and inclusively of the last day unless the last day falls on a day which is not a business day, in which case the last day shall be this next succeeding business day.
1.8Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.9Expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own definitions.
1.10Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.
1.11In the event of any conflict between the provisions of the Tender and the provisions of this Agreement and any annexures to this Agreement this Agreement and the annexures shall prevail.
1.12The rule of construction that the contract shall be interpreted against the party responsible for the drafting or preparation of the Agreement, shall not apply.
2TERM
Without in any way limiting or derogating from any other provision of this Agreement providing for its termination in certain circumstances, this Agreement shall be deemed to have commenced on and with effect from the Effective Date and shall, save as otherwise provided for or agreed in writing endure for the Term but without prejudice to such provisions of this Agreement which by their nature shall survive the Term, such as but not limited to the warranties.
3SERVICE
In terms of the Tender GSMRFP100/2015, SAA required the supply, installation and commissioning of a generator at SAA’s Cargo facility in Port Elizabeth, and the Contractor tendered for and was awarded the Tender to supply, install and commission the generator and provide the Services as per the Tender and further detailed in this Agreement and any annexures hereto.
4REPRESENTATIONS AND WARRANTIES
The Contractor hereby represent and warrant in favour of SAA (and acknowledges that SAA would not have entered into this Agreement but for the representations and warranties set out in the Tender and below) that-
4.1it has the necessary skills, manpower, permits, corporate power authorization and certification to enter into and perform all its obligations contemplated by this Agreement and that the person executing this Agreement has been duly authorised to sign it;
4.2this Agreement constitutes its legal, valid and binding obligations.
The representations and warranties set out in this clause and elsewhere in this Agreement and the Tender shall survive the execution of this Agreement.
5CONDITIONS
The Contractor undertakes that it shall render the Services to SAAstrictly in accordance with the provisions of the Tender and such other terms, conditions and any service level requirements set out in this Agreement and any annexure hereto to the absolute satisfaction of SAA and in addition thereto, the following and highlighted:
5.1The Contractor shall supply, install and commission the Equipment as required by SAA.
5.2The Contractor shall ensure that all personnel utilised to install andcommission the Equipment and to render the Services are appropriately qualified, registered and accredited in terms of the relevant applicable legislation at all times during the operation of this Agreement.
5.3The Contractor shall provide SAA with contact details of the supervisor or project manager and ensure that SAA has access to the supervisor or project manager at all hours.
5.4Delivery of Equipment and Services -
5.4.1Dates for delivery and/or performance are fixed for the benefit of SAA and have been accepted by the Contractor as set out in this Agreement and annexures hereto and time will be of the essence;
5.4.2SAA shall procure, during normal working hours, that the Contractor shall have access to the location and facilities of SAA, for the purpose of delivering the Equipment and/or performing the required Services. Such access shall be in accordance with and subject to SAA’s terms, conditions and policy as applicable thereto.
5.5Risk and Title of Equipment -
5.5.1Risk in the Equipment shall pass to SAA at the time of written acceptance by SAA after installation and successful commissioning;
5.5.2The Contractor shall replace free of charge any Equipment in which risk has passed to SAA if it is damaged or lost due to the neglect or default of the Contractor and/or the Contractor’s employees, agents or representatives;
5.5.3The Contractor shall retain title and ownership of the Equipment until the Contractor has received payment of all amounts due and payable by SAA in respect of the specific Equipment concerned under this Agreement.
5.6Warranties
5.6.1The Contractor agrees that SAA and any original manufacturer of the Equipment (OEM) supplied by the Contractor by virtue of this Agreement may, at SAA’s discretion, audit the Equipment sold and/or installed under this Agreement to verify compliance with the provisions of this Agreement. The Contractor shall co-operate with SAA and/or the relevant OEM in conducting such audit.
5.6.2Where manufacturers’ installation instructions are given for any Equipment, the Contractor shall strictly adhere to such and shall ensure the benefit of any guarantee is in no way compromised or prejudiced. The following shall also apply with regard to warranties:
5.6.2.1in the case of Services, ___ months from the date of completion of the performance of the Services; and/or
5.6.2.2in the case of Equipment, for the validity period of the OEM’swarranty and shall ensure all such warrantees are in favour of SAA and/or are assigned to SAA (a copy of the warranty documents shall be provided to SAA at delivery of the Equipment);
5.6.2.3if the Services and/or the Equipment are defective and therefore do not conform with the warranty, SAA shall notify the Contractor in writing of it becoming apparent to SAA that the Equipment and/or Services do not so conform, describing in reasonable detail how the Services and/or Equipment failed to be in conformance and including evidence that the Services and/or Equipment are under warranty. The Contractor shall at its option repair or replace or re-perform the non-conforming Services and/or Equipment, or in the case of the Equipment and at SAA’s election, refund to SAA the purchase price and any other costs paid to the Contractor by SAA in respect of the non-conforming Equipment,including and damages suffered by SAA as a result thereof.
5.7Penalties
Where the Contractor fails to bring the works or sections thereof to completion on the date or dates stated in the project programme, the Contractor shall be liable to SAA for the penalties as contained in the Service Level provisions contained in Annexure 1.
Where SAA is proven to be the sole and direct cause of the Contractor not being able to meet the project programme, no penalties shall apply to the Contractor in respect of such delay.
5.8SAA and the Contractor shall comply with the provisions of inter alia, but not limited to Section 9 of the Occupational Health and Safety Act, No. 85 of 1993 (as amended), and shall ensure that the personnel are not exposed to hazards to their health or safety at the premises of SAA, or in the conduct of any services rendered in terms of this Agreement. In addition hereto the Contractor shall complete and comply with the provisions of Annexure 4.
6COST/CHARGES
6.1Charges and payment for providing the Equipment and Services shall be in accordance with the provisions of Annexure 1 hereto. Should the Contractor fail to provide the Services to the required standards and within the time periods contemplated in Annexure3 (Performance Programme) hereto, payment for the Services in question shall be reduced by any applicable penalties or other claims by SAA.
6.2The price for the Equipment and the Services includes but is not limited to the provision of special equipment or work such as cutting away, making good, decoration, ducting, ground work, building work and other similar or required work.
6.3The Contractor shall/has provided a performance guarantee as per Annexure 3 which shall be kept current until performance by the Contractor in terms of this Agreement is complete.
7SETTLEMENT OF ACCOUNTS
Except where SAA disputes in good faith any invoiced amounts SAA shall pay the Contractor within 30 (thirty) days of the statement supported by valid Tax invoices as per the Value added Tax Act (Act No 89 of 1991) as amended in South African Rands to such account in the Republic of South Africa as the Contractor may notify SAA in writing. Payment shall be made based on completed works only less a retention of 10% (ten percent) which shall be paid once commissioning, testing and close out has been satisfactorily completed.
8INDEMNIFICATION and insurance
8.1The Contractor shall indemnify and agrees to hold SAA, its directors, officers and employees or agents harmless against:
8.1.1any loss of or damage to the Equipment and any SAA property, whether movable or immovable;
8.1.2any liability in respect of any loss of or damage to the property whether movable or immovable,of the Contractor or any third party;
8.1.3any liability in respect of the death of or injury to any person;
8.1.4any legal costs or expenses reasonably incurred in connection with claims or actions arising out of the aforegoing
whenever the loss of or damage to, injury, death or legal costs or expenses contemplated in clause 8.1 above is due to or is related to items supplied or services provided by the Contractor in terms of this Agreement, unless such loss, damages, injury or death are due to the gross negligence or wilful misconduct of SAA.
8.2In no event shall either party be liable to the other for special, incidental, consequential or indirect damages in connection with this Agreement.
8.3The Contractor shall have and shall maintain in full force and effect and to the satisfaction of SAA insurance to cover the Contractor’s obligations in terms of this Agreement and shall provide to SAA copies of such insurance as indicated in Annexure 5.
9FORCE MAJEURE
9.1Should any of the obligations of either party become objectively impossible of performance, such party shall be exempted from its obligations under this Agreement if the circumstance that rendered performance impossible was unforeseeable with reasonable foresight at the time of contracting and unavoidable with reasonable care at the time of its occurrence by the party concerned and such party displayed reasonable care and diligence in attempting to avoid the consequences thereof. Such exemption shall, however, operate only to the extent that the performance of the obligations of such party is rendered objectively impossible and only for the period during which the relevant circumstance prevails. Notice of such circumstance shall be conveyed to the other party in writing without delay.
9.2If either party is unable to perform its obligations under the Agreement because of acts beyond its control for a period exceeding 30 (thirty) days, then either party may terminate this Agreement forthwith by giving notice to the other.
10BREACH
Should either party breach or otherwise be in default of any of its obligations under or in terms of this Agreement, and remain in default or fail to remedy such breach where capable of remedy, within 7 (seven) days of receipt of written notice calling upon it to do so, the other party shall be entitled, but not obliged, in addition to any other rights which it may have or remedies which may be available to it at law or in terms of this Agreement to cancel this Agreement forthwith, with or without claiming damages.
11TERMINATION
Without in any way limiting or derogating from any other provision hereof, either party shall be entitled, but not obliged, forthwith to cancel this Agreement at any time by addressing written notice to that effect to the other (without prejudice to any other rights of the other party in law or in terms of this Agreement and in particular, but without limitation, its right to claim damages), if the other party-