PART B: GENERAL CONDITIONS TABLE OF CONTENTS

Transcription

1 PART B: GENERAL CONDITIONS TABLE OF CONTENTS DEFINITIONS AND INTERPRETATION... 2 B 1 Definitions...2 B 2 Interpretation...4 OBLIGATIONS OF THE CONSULTING FIRM... 5 B 3 Scope of services...5 B 4 Conformity with current requirements...5 B 5 Duty of Care...5 B 6 Exercise of Authority...5 B 7 Safeguarding SANRAL s data...6 B 8 Designated representative of Consulting Firm...6 B 9 Co-operation with others...7 B 10 Notice of change...7 OBLIGATIONS OF SANRAL... 7 B 11 Information...7 B 12 Decisions...7 B 13 Assistance...7 B 14 Services of others...7 B 15 Designated representative by SANRAL...7 B 16 Notice of change...7 B 17 Issue of instructions...8 LIABILITY AND INSURANCE... 8 B18 Liability of Consulting Firm to SANRAL and Third Parties...8 B 19 Liability of SANRAL to Consulting Firm...8 COMMENCEMENT COMPLETION ALTERATION AND TERMINATION OF AGREEMENT... 8 B 20 Agreement effective...8 B 21 Commencement and completion of Services...8 B 22 Project control...9 B 23 Variations...9 B 24 Further proposals...9 B 25 Delays by SANRAL...9 B 26 Changed Circumstances B 27 Abandonment, suspension or termination B 28 Payment in the event of termination B 29 Rights and Liabilities of parties i

2 PAYMENT B 30 Payment to the Consulting Firm B 31 Disputed invoices B 32 Penalties B 33 Damages OTHER PROVISIONS B 34 Law and Jurisdiction B 35 Changes in legislation B 36 Succession B 37 Assignment and sub-contract B 38 Ownership, copyright, intellectual property & indemnity in use of drawings and other data B 39 Indemnity in use B 40 Copyright B 41 Intellectual property rights B 42 Intellectual property rights indemnity B 43 Conflict of interest/corruption and fraud B 44 Notices and Domicilia B 45 Publicity and publication B 46 Confidentiality B 47 Sole Agreement B 48 Severability B 49 Waiver B 50 Non renouncement of statutory powers SETTLEMENT OF DISPUTES B 51 Process of resolution ii

3 2 PART B: GENERAL CONDITIONS DEFINITIONS AND INTERPRETATION B 1 (v) (vi) (vii) (viii) (ix) (x) Definitions The following words and expressions shall have the meanings assigned to them except where the context otherwise requires: "SANRAL" means the South African National Roads Agency SOC Limited established in terms of section 2 of the South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998), including any delegate of SANRAL in respect of delegated authority of SANRAL and in terms of SANRAL s standard delegations of power. Agreement means the Agreement for Consulting Engineering Services, the constituent documents of which are set out in A2.2 of Part A of this Agreement. Annexures to this Agreement means Standard Annexure 1 (percentage fees appointments), Standard Annexure 2 (time and cost appointments) and Standard Annexure 3 (remuneration tables) for the applicable financial year and will form part of this Agreement. Consulting Firm means the contracting party named in Part A of this Agreement employed by SANRAL to perform the Services, and legal successors to the Consulting Firm. Agent means the Consulting Firm as described in these definitions or the Engineer as described in these definitions in so far as the Occupational Health and Safety Act is concerned. Contractor means any person or legal entity under contract to SANRAL to perform the Construction Engineering Works or part thereof and includes any sub-contractor to whom any part of the Works has been subcontracted by a contractor. Day means the period between any one midnight and the next. Engineer means the natural or juristic person, partnership, Incorporated Company, Propriety Limited Company or Close Corporation appointed from time to time in writing by SANRAL for the construction monitoring and management of the Engineering Works undertaken by the Contractor. Engineer s Representative means the person appointed from time to time by the Engineer to undertake duties in terms of construction monitoring. Construction Monitoring means the process of managing and co-ordinating the contract and over-seeing and/or inspecting the works, to the extent of the consulting firms engagement, for the purpose of verification that the works are completed in accordance with the requirements of the contract, that the designs are being correctly interpreted and that appropriate construction techniques are being utilized. Construction monitoring, to whatever extent, shall not diminish the contractor s responsibility for executing and completing the works in accordance with his contract.

4 3 (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) Joint Venture means that entity formed, by two or more separate entities, for the purpose of contracting to the Agreement and performing the Services specified in the Agreement in the capacity of the Consulting Firm. Month means a period of one month according to the Gregorian calendar commencing with any day of the month. Party and parties mean SANRAL and the Consulting Firm and third party means any other person or entity as the context requires. Products of the Services or Products means those things that convey the intention of what is to comprise the Project and include, but are not limited to: reports; drawings; specifications; schedules of quantities; computer programs. "Project" means a scheme for all or part of which the Consulting Firm is appointed to perform the Services as described in Part A of this Agreement. Services means the Services to be performed by the Consulting Firm in accordance with the Agreement and comprise of engineering services, normal services, additional services, special services and specialist advice, special appointments and diverse other services as called for by SANRAL. Normal services means the services set out in sub-section 2.1 of Standard Annexure 1. (xviii) "Stage" means, a stage of normal services as per sub-section 2.1 of Standard Annexure 1 as follows: New works: the preliminary investigation and/or route location stage; the preliminary design stage; the detailed design and documentation stage; and/or the tender and construction stage of the Services to be performed by the Consulting Firm; for green fields projects. Rehabilitation: the initial assessment; the detailed assessment; the detail design and documentation stage; and/or the tender and construction stage of the Services to be performed by the Consulting Firm for projects of a periodic maintenance, special maintenance, upgrading or rehabilitation nature. Routine maintenance: the initial and/or detailed assessment, the detail design and documentation stage; and/or the tender and construction stage of the Services to be performed by the Consulting Firm for projects of a predominantly routine maintenance nature. (xix) (xx) (xxi) (xxii) Sub-designer shall be such engineering firm/entity appointed by the Consulting Firm with the approval of SANRAL to undertake part of the design or other technical work in cases when the Consulting Firm does not have the necessary in-house capacity. "Total fee" means the fee prescribed for a Full or Partial Service allowing for any adjustments as provided for in Annexure 1 to this Agreement. Total annual cost of employment means the total annual cost of employment as defined in sub-section 1.2 of Annexure 2. "Works" or "Engineering Works" means that project or part of a project that SANRAL wishes to have delivered and for which the Consulting Firm has been appointed for the performance of the Services specified in this Agreement.

5 4 (xxiii) Cost of the Works for fee purposes means that amount as defined in sub-section 3.1 of Standard Annexure 1. B 2 Interpretation The headings in the Agreement shall not be used in its interpretation. Words importing the male gender only, also include the female gender or vice versa where the context requires. Words importing the singular only, also include the plural and vice versa where the context requires. If there is a conflict between provisions within the Agreement, the provision written last will rule, unless otherwise specified in the Particular Conditions.

6 5 OBLIGATIONS OF THE CONSULTING FIRM B 3 Scope of services The Consulting Firm shall perform Services relating to the Project. The Scope of the Services is stated in Part A: Particular Conditions and detailed in Annexures 1, 2 and 3. B 4 (v) B 5 B 6 B 6.1 Conformity with current requirements Any normal duty or additional service undertaken for, or on behalf of SANRAL shall be in accordance with the current specifications of SANRAL for such work. Similarly the geometric design, structural design, pavement design, rehabilitation investigation and design, road materials investigation, contract administration shall be in accordance with SANRAL's current standards, specifications, criteria, manuals, codes, guide-lines and/or industry accepted best practice. If the nature of the Project is such that all or some of SANRAL s current requirements referred to in B4 are not appropriate the Consulting Firm shall propose to SANRAL products fit for the intended purposes and shall perform the Services in accordance with such proposals as are accepted by SANRAL. Where the appointment includes Works that are under the control of another authority or controlling body (e.g. Transnet) the design of these Works must take due account of the requirements, standards and procedures of the controlling authority. The Consulting Firm shall in the undertaking of the Services in terms of this Agreement comply with all applicable laws, regulations, statutory provisions and agreements. Furthermore the Consulting Firm shall as and when applicable in relevance to its duties, be specifically delegated as SANRAL s Mandatory in terms of the Occupational Health and Safety Act (Act no. 85 of 1993) and as SANRAL s Agent of Construction Regulations 4 (2) (5) and (6) of the herein mentioned Act. Duty of Care The Consulting Firm shall exercise all reasonable skill, care and diligence in the discharge of the Services agreed to be performed by it in terms of this Agreement. The Consulting Firm shall be responsible for breach of professional duty by reason of any error, omission or neglect by the Consulting Firm in connection with the work performed by it or done under its auspices by Sub-designers and/or additional service providers. SANRAL reserves the right to request all calculations and to have any plans and calculations submitted by the Consulting Firm checked and inspected with the knowledge of the Consulting Firm, by another consulting firm or any other person or firm. All design calculations shall be kept and safeguarded for the duration of the insurance(s). Exercise of Authority Entering Upon Land For the purpose of entering upon land for surveying for the Works, or for materials investigations, which may include roadbed investigations, borrow pit investigations, drilling operations etc, the Consulting Firm and its staff shall be considered to have been duly authorised in writing by SANRAL in terms of section 43 of Act 7 of 1998 to enter upon land, in such a manner as may be necessary for the said survey and/or investigation. Should the Consulting Firm or its staff transgress the laws, or rules, governing the

7 6 conduct of survey parties, the Consulting Firm hereby undertakes to indemnify SANRAL for all expenditure incurred by SANRAL in legal proceedings or compensation to owners of property. The Consulting Firm is to notify and gain the permission of the proprietor or the person in charge of the land and to inform him of the reason for its presence before entering on any land. Furthermore the Consulting Firm shall not commit SANRAL in any way. Any person entering onto land shall do so in accordance with the provisions of Act 7 of B 6.2 Powers to certify Where the Services include the exercise of powers to certify, decide or exercise discretion in terms of a contract between SANRAL and any third party, then the Consulting Firm shall act in accordance with that contract, but as an independent professional acting with reasonable skill, care and diligence. B 6.3 No authority to relieve from obligations The Consulting Firm shall have no authority to relieve any third party appointed by SANRAL of any of their duties, obligations, or responsibilities under their respective agreements or contract, unless expressly authorized by SANRAL in writing to do so. B 7 Safeguarding SANRAL s data The Consulting Firm and SANRAL shall each take reasonable precautions (having regard to the nature of their other respective obligations under this Agreement) to preserve the integrity of SANRAL s data and to prevent any corruption or loss of SANRAL s data. The Consulting Firm shall ensure that a back-up copy of SANRAL s data is made before it utilises SANRAL s data, and every 2 days thereafter while it is utilising SANRAL s data and that such copy is recorded on media from which SANRAL s data can be re-loaded in the event of any corruption or loss of SANRAL s data. In the event that SANRAL s data is corrupted or lost as a result of any default by the Consulting Firm SANRAL shall have the option, in addition to any other remedies that may be available to it either under this Agreement or otherwise, to elect either of the following remedies: SANRAL may require the Consulting Firm at its own expense to restore or procure the restoration of SANRAL s data using the back-up copy referred to in clause B 7 ; or SANRAL may itself restore or procure restoration of SANRAL s data using the backup copy referred to in clause B 7 and shall be repaid by the Consulting Firm. B 8 Designated Representative/Project Leader(s) of Consulting Firm The Consulting Firm shall designate in writing a person to act as its representative and such person shall have complete authority to receive instructions and to give information to SANRAL on behalf of the Consulting Firm and shall act generally so as to facilitate communication between the Consulting Firm and SANRAL. The designated representative shall be registered with the Engineering Council of South Africa or any competent international body recognised by SANRAL and must be a director or a partner of the Consulting Firm

8 7 B 9 Co-operation with others The Consulting Firm shall perform the Services in conjunction with other consultants or specialists who are providing services to the Project and may make recommendations to SANRAL in respect of such appointments for certain parts of the Project. The Consulting Firm shall only be responsible for its own performance and the performance of its Subdesigners. B 10 Notice of change On becoming aware of any matter which shall materially change or has changed the scope, cost or timeous delivery of the Services the Consulting Firm shall forthwith give notice thereof to SANRAL. OBLIGATIONS OF SANRAL B 11 Information SANRAL shall furnish with reasonable speed and dispatch all pertinent data and information in its possession needed for the carrying out by the Consulting Firm of its Services under this Agreement. B 12 Decisions SANRAL shall give its decision on all matters properly referred to it in writing by the Consulting Firm within a reasonable time so as not to impede the delivery of the Services. B 13 Assistance SANRAL shall, with reasonable speed and dispatch, give such assistance as shall reasonably be required for the carrying out by the Consulting Firm of its Services under this Agreement. B 14 Services of others SANRAL may at its cost engage such other consultants and specialists as deemed necessary for the proper completion of the Project. B 15 Designated representative by SANRAL SANRAL shall designate in writing a person to act as its representative for the execution of this Agreement and such person shall receive requests and submissions from the Consulting Firm and shall ensure the timely response of SANRAL and the conveying of instructions from SANRAL and shall act generally so as to facilitate communication between SANRAL and the Consulting Firm. B 16 Notice of change On becoming aware of any matter which shall materially change or has changed the scope, cost or timing of the Services SANRAL shall forthwith give notice thereof to the Consulting Firm.

9 8 B 17 Issue of instructions If the Consulting Firm is required to administer the work of others or of any contract on behalf of SANRAL, SANRAL shall only issue instructions related to such work or contract through the Consulting Firm. Furthermore SANRAL shall not enter into any agreement or contract which describes the duties of the Consulting Firm or imposes obligations on it without the Consulting Firm s prior written agreement thereto. LIABILITY AND INSURANCE B18 Liability of Consulting Firm to SANRAL and Third Parties The Consulting Firm shall satisfy SANRAL that it is insured with an insurance company registered in the Republic of South Africa or as otherwise approved by SANRAL providing cover as requested. In the event of the Consulting Firm being dissolved or there being a change in ownership, the insurances shall be maintained to the satisfaction of SANRAL. The Consulting Firm shall be liable for and indemnify SANRAL against any loss, damage, liability suffered by SANRAL or any other party from any negligence, willfull or intentional act, error, omission or neglect arising in connection with any of the Services rendered by the Consulting Firm or any other party for whom the Consulting Firm is responsible including anything amounting to a breach of professional duty. SANRAL shall have no claim against the Consulting Firm arising, later than (a) 25 years for all structures (reinforced concrete, steel and other) and (b) 10 years for all other Services after the issue of the relevant certificates of completion of the Works. B 19 Liability of SANRAL to Consulting Firm SANRAL shall be liable to the Consulting Firm arising out of or in connection with this Agreement if a breach of an obligation in terms of this Agreement is established against SANRAL. The Consulting Firm shall have no separate delictual right of action against SANRAL. COMMENCEMENT COMPLETION ALTERATION AND TERMINATION OF AGREEMENT B 20 Agreement effective The Agreement is effective from the date stated in the letter of appointment by SANRAL. B 21 Commencement and completion of Services The Start dates and dates for submission at the completion of Services shall be as stated in the Particular Conditions of the Agreement (Part A of the Agreement). SANRAL may in its discretion or as mutually agreed with the Consulting Firm grant an extension of time for the completion of the Services, provided that the Consulting Firm shall submit a fully substantiated request for such extension at least one month prior to the date(s) referred to in clause B 21 and there will be no additional cost to SANRAL.

10 9 Should the Consulting Firm be appointed to undertake the inspection and supervision of the construction Stage, it shall provide the "as built" plans, pavement design certificates, materials data, operational and maintenance manuals (if required), construction report and electronic copies and/or microfilms and submit them to SANRAL within three months after the completion of the construction of the Works. B 22 Project control B 22.1 Budget The Consulting Firm shall in all cases, irrespective of the basis of payment, prepare an estimated budget (including allowance for VAT) for the cost of the Services for the various stages of the Project for approval by SANRAL. Such budgets must be revised and updated quarterly or as instructed by SANRAL and all potential additional expenditure and/or over-expenditure must be with the consent and approval of SANRAL. B 22.2 Progress meetings and reports B 23 The parties agree that they will meet as instructed by SANRAL between the commencement date and the completion date to discuss and minute the progress of the Services. Where progress reports are to be submitted under this Agreement, the Consulting Firm shall render such reports as to the progress of the Services under this Agreement at the frequency and in such form as may be specified or as otherwise agreed between SANRAL and the Consulting Firm. Submission and receipt of these reports shall not prejudice the rights of either party under this Agreement. The Consulting Firm shall also submit reports regarding training, empowerment, capacity building, small contractor development, labour and staff returns and such other aspects as required by SANRAL. Variations This Agreement shall not be varied or amended unless such variation or amendment is agreed in writing and signed by a duly authorised representative of SANRAL on behalf of SANRAL and by a duly authorised representative of the Consulting Firm on behalf of the Consulting Firm. B 24 Further proposals If requested by SANRAL in writing the Consulting Firm shall submit proposals for altering the Services. The preparation and submission of such proposals shall be a Diverse Other Service and the fee therefore shall be agreed between the parties. B 25 Delays by SANRAL Should there be a delay in furnishing any data, information or assistance as provided for in this Agreement, SANRAL may in its discretion extend the date(s) referred to in clause B 21 above for such a period as mutually agreed between the parties. If SANRAL by reason of any act or omission, other than a delay caused by SANRAL for which it is excused in terms of this Agreement, prevents the Consulting Firm from performing its functions under this Agreement, then, notwithstanding anything else

11 10 contained in this Agreement, SANRAL shall, if as a result any Stage is not completed by the date specified in the Particular Conditions (or by any extended date granted pursuant to any provision of this Agreement) make the part payment due to be paid for the progress of that Stage on the scheduled date for such completion taking into account any extension of time granted pursuant to any provision of this Agreement as distinct from the actual date of completion. B 26 (v) (vi) (vii) B 27 Changed Circumstances If circumstances arise for which the Consulting Firm is not responsible and which make it irresponsible or impossible for it to perform in whole or in part the Services in accordance with the Agreement the Consulting Firm shall promptly dispatch a notice to SANRAL. In these circumstances if certain Services have to be suspended, the time allowed for their completion shall be extended until the circumstances no longer apply plus a reasonable period as mutually agreed between the parties but not exceeding 42 days for resumption of them. If the speed of performing the Services has to be reduced, the time for their completion shall be extended as may be made necessary by the circumstances. Neither party shall be liable to the other for loss of any kind whatsoever incurred by the other party by reason of any failure or delay in the performance of its obligations due to the circumstances. Notwithstanding the foregoing, each party shall use all reasonable endeavours to continue to perform, or resume performance of such obligations for the duration of the circumstances. If a party fails to inform the other party of the circumstances concerned then such party shall thereafter not be entitled to refer to or rely on such circumstances as a reason for non-fulfilment of any obligation in terms of this Agreement. In the event of circumstances arising which could not reasonably have been foreseen, or in the event of SANRAL ordering modifications to completed designs or alterations to designs in progress, which require the alteration or remaking of any specifications, and /or drawings, the whole of the cost of revising, amending or reproducing such drawings or documents to bring the work up to the stage at which it was modified shall be the subject of additional payment and such remuneration shall be determined on a time and cost basis or as mutually agreed upon between the parties (see subsection of Annexure 1 to this Agreement). Abandonment, suspension or termination B 27.1 By notice of SANRAL SANRAL reserves the right to postpone, cancel or abandon the whole of the Services or any part thereof and may terminate the Services of the Consulting Firm on giving 56 days written notification. SANRAL reserves the right to cancel this Agreement and to terminate the Services of the Consulting Firm if, in the opinion of SANRAL the Consulting Firm becomes unable for any reason whatsoever to implement any of the terms of the Agreement due to causes within its control or should it delay the carrying out of any of the provisions of the Agreement. SANRAL shall inform the Consulting Firm of the intention to terminate in terms of clause B 27.1 by way of a notice stating the grounds for the notice. If a satisfactory reply is not

12 11 received within 21 days SANRAL can by a further notice terminate the Agreement provided such further notice is given within 56 days of SANRAL s former notice. (v) In the event of termination in terms of clause B 27.1 or clause 27.1 the Consulting Firm shall hand over to SANRAL all drawings, documents and papers that relate to the Services in electronic and/or other formats. Should the continuity of the Project be interrupted at any Stage as a consequence of being either fully or partially postponed for a period exceeding five consecutive years, then the work shall be considered abandoned and the appointment of the Consulting Firm shall be considered as terminated unless otherwise agreed. For Construction Stage only the period as defined herein shall be two years. B 27.2 By notice of the Consulting Firm After giving at least 14 days notice to SANRAL, the Consulting Firm can by a further notice of at least 42 days terminate the Agreement or, at its discretion, without prejudice to the right to terminate, can suspend or continue suspension of performance of the whole or part of the Services when 60 days after the due date for payment of a Tax Invoice, payment of that part of it which has not by that time been contested in writing, has not been made by SANRAL or when Services have been suspended under either Clause 26 or Clause 27.1 and the period of suspension has exceeded 182 days. B 27.3 By reason of incapacity of the Consulting Firm Should the Consulting Firm, being an individual or the last survivor of a partnership or body corporate, die or be prevented by illness or any other circumstances beyond its control from performing the obligations implied by the Agreement, the Agreement shall be terminated without prejudice to the accrued rights of either Party against the other. B 28 Payment in the event of termination On termination of the Services of the Consulting Firm in terms of clauses B 27.1, B 27.2 or B27.3 of the Agreement, the remuneration to be paid to the Consulting Firm will be determined in accordance with the provisions of the applicable Annexures to this Agreement or as otherwise mutually agreed upon between the parties. In the event of the services terminated resulting from a breach of contract by the Consulting Firm, no drop-off fees as per the Annexures will be payable. B 29 Rights and Liabilities of parties Termination of the Agreement shall not prejudice or affect the accrued rights or claims or liabilities of the parties.

13 12 PAYMENT B 30 Payment to the Consulting Firm The remuneration of the Consulting Firm for the Services to be performed as set out in the Particular Conditions of this Agreement shall be determined by one of the following methods or a combination thereof as stated in Part A of this Agreement: Percentage fee based on the cost of the Works plus reimbursable expenditure as defined in Annexure 1. Time and costs basis applicable to hourly rates and reimbursable expenditure as is defined in the Annexures. Rates or Lump Sums as per special agreement between SANRAL and Consulting Firm. Value Added Tax (VAT) is not included in the rates and fees reflected in the Annexures of this Agreement. B 31 B 32 It is mutually agreed that the fees and tariffs in the Annexures and Tables except for Table 8 (schedule of Travel Tariffs) are fixed for the tenure of the Agreement save that, if revised fee scales, tariff allowances or Tables are published during the tenure of the Agreement, the revised fee scales, tariff allowances or Tables shall apply to any Stage that on the effective date of the revision has not yet commenced. In the case of Table 8 the latest revision will be applicable for the tenure of the Agreement. Should the commencement or completion of the Services as described, however, be delayed by SANRAL, remuneration of the Consulting Firm for the services or part thereof will be in accordance with the rates, tariffs and fees reflected in the Annexures and Tables applicable in the financial year in which the work is started or restarted due to extension of time caused by delay. Payment shall be made to the Consulting Firm within 30 days of receipt of a properly completed account for remuneration for Services performed. Disputed invoices If any item or part of an item in an account submitted by the Consulting Firm is contested by SANRAL, SANRAL shall give prompt notice with reasons and shall invite the Consulting Firm to submit an amended account for the undisputed portion of the original account. Such amended account shall be paid within the period stipulated in clause B 30. The disputed portion of the original account shall be resolved promptly in discussion between SANRAL and the Consulting Firm. Penalties If the Consulting Firm shall fail to complete the Services as defined in this Agreement by the dates for submission at the completion of Services as stated in the Particular Conditions, or at the accepted extended dates for submission, the Consulting Firm shall pay to SANRAL such penalties as are stipulated in the Particular Conditions.

14 13 B 33 The payment of penalties shall not relieve the Consulting Firm from its obligation to complete the Services as defined in this Agreement or from any other liability or obligation under Agreement. SANRAL reserves the right to claim damages in lieu of penalties. Damages If the Consulting Firm shall fail to complete the Services as defined in this Agreement within 2 months after the dates for submission at the completion of Services as stated in the Particular Conditions, or at the accepted extended dates for submission, then notwithstanding anything else contained in this Agreement, SANRAL shall be entitled to: Claim damages, losses and /or specific performance from the Consulting Firm as a result of the delay; Terminate this Agreement forthwith on giving written notice to the Consulting Firm and to recover from the Consulting Firm the amount of all damages and loss suffered by SANRAL resulting from such failure. Upon such termination the Consulting Firm shall (without prejudice to SANRAL s right to recover the amount of such damages and loss as aforesaid) forthwith refund SANRAL all monies already paid for Services of which the Products cannot be used, together with interest, calculated at the maximum prescribed by law. Without prejudice to other remedies available to it SANRAL may claim damages or losses by it as a result of the corruption or loss of SANRAL s data as contemplated in B7. OTHER PROVISIONS B 34 Law and Jurisdiction This Agreement shall be considered as a contract made in the Republic of South Africa and in accordance with South African Law. B 35 Changes in legislation If after the date of the Agreement, the cost or duration of the Services is altered as a result of changes in, or additions to, any statute, regulation or by-law, or the requirements of any authority having jurisdiction over any matter in respect of the Project, then the remuneration and time for completion shall be adjusted in order to reflect the impact of those changes as agreed in writing by both parties. B 36 Succession This Agreement shall be binding on the successors in title, assignees, administrators, executors and heirs of either party. B 37 Assignment and sub-contract B 37.1 Assignment by SANRAL SANRAL shall be entitled to cede, assign, delegate or otherwise dispose of its rights and obligations under this Agreement or any part thereof to any other body after due consultation with the Consulting Firm.

15 14 B 37.2 Assignment and Sub-letting by the Consulting Firm The Consulting Firm shall not assign, cede, subcontract or otherwise dispose of its responsibilities, rights, title or interest under this Agreement or any part thereof nor delegate any of its obligations to any person or firm without the prior written consent of SANRAL. B38 B 39 Ownership, copyright, intellectual property and indemnity in use of drawings and other data On completion of the Services all original drawings and documents received from SANRAL together with all other drawings, including photographic reductions and negatives thereof, computer programs and other data prepared by the Consulting Firm in connection with the Services as defined in this Agreement with prior approval and at the expense of SANRAL, shall be lodged with SANRAL and become the property of SANRAL. The Consulting Firm shall not make any of the data, details, drawings or information available to any other party, for whatever reason, without the prior approval of SANRAL and shall take the necessary steps to safeguard against this happening. The Consulting Firm acknowledges that SANRAL s data is the property of SANRAL. Indemnity in use The Consulting Firm shall not be liable (either in contract or in delict) to SANRAL or any other party whatsoever as a result of the use with the permission of SANRAL of the Consulting Firm's designs, drawings and specifications in any project or works other than those detailed in this Agreement and SANRAL hereby indemnifies the Consulting Firm against any claim which may be made against it by any party whatsoever in any way arising out of the use with the permission of SANRAL of such documentation for such other purpose as the aforesaid. B 40 B 41 Copyright Copyright of all documents prepared by the Consulting Firm in terms of this Agreement shall, after due payment, be vested in SANRAL. The Consulting Firm shall not delete or remove any copyright notices contained within or relating to SANRAL s data. Intellectual property rights Computer programs and other data prepared by the Consulting Firm in connection with the Works with prior approval and at the expense of SANRAL, shall be lodged together with any software and/or intellectual property rights in relation thereto with SANRAL and become the property of SANRAL. Save as otherwise provided for herein, any and/or all software and/or intellectual property rights belonging to the Consulting Firm or any third party prior to the delivery of the Services in terms of this Agreement shall remain the property of the Consulting Firm or such third party and SANRAL shall not in any manner whatsoever be entitled to use such software or intellectual property rights in any other manner not provided for herein without the written consent of the Consulting Firm or the third party.

16 15 B 42 (v) (vi) SANRAL hereby reserves all intellectual property rights, which may subsist in SANRAL s data and the Consulting Firm shall not, without SANRAL s written consent use, copy or communicate to a third party such data. Intellectual property rights indemnity Subject always to SANRAL s proper observance of its obligations under this clause B 42, the Consulting Firm shall indemnify SANRAL against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements on an attorney and own client basis), losses and damages arising from or incurred by reason of any infringement or alleged infringement (including but not limited to the defence of such alleged infringement) in South Africa of any intellectual property right in connection with the receipt of the Services from the Consulting Firm. The Consulting Firm shall promptly notify SANRAL if any claim or demand is made or action brought against the Consulting Firm for infringement or alleged infringement of any intellectual property right. SANRAL shall promptly notify the Consulting Firm if any claim or demand is made or action brought against SANRAL to which clause B 42 may apply. The Consulting Firm shall at its own expense conduct any litigation arising therefrom and all negotiations in connection therewith and SANRAL hereby agrees to grant to the Consulting Firm exclusive control of any such litigation and such negotiations. SANRAL shall at the request of the Consulting Firm afford to the Consulting Firm all reasonable assistance for the purpose of contesting any claim or demand made or action brought against SANRAL to which clause B 42 may apply or any claim or demand made or action brought against the Consulting Firm to which clause B 42 may apply. The Consulting Firm shall reimburse SANRAL of all costs and (including but not limited to legal costs and disbursements on an attorney and own client basis) incurred in so doing. SANRAL shall not make any admissions which may be prejudicial to the defence or settlement of any claim, demand or action for infringement or alleged infringement of any intellectual property right to which clause B 42 may apply or any claim or demand made or action brought against the Consulting Firm to which clause B 42 may apply. If a claim or demand is made or action brought to which clause B 42 may apply or in the reasonable opinion of the Consulting Firm is likely to be made or brought, the Consulting Firm shall at its own expense either: Modify any or all of the products of the Services without reducing performance and functionality, or substitute alternative products of equivalent performance and functionality for any or all of the products, so as to avoid the infringement or the alleged infringement, provided that the terms of this Agreement shall apply mutatis mutandis to such modified or substituted products of Services and such modified or substituted products shall be acceptable to SANRAL, who will not unreasonably withhold such acceptance; or Procure a royalty free licence to use the products of the Services on terms which are acceptable to SANRAL. (vii) The foregoing provisions of this clause B 42 shall not apply insofar as any such claim or demand or action is in respect of: Any use by or on behalf of SANRAL of the products of the Services in combination with any item not supplied or approved by the Consulting Firm where such use of the products directly gives rise to the claim, demand or action; or

17 16 Any modification carried out by SANRAL or on behalf of SANRAL by a third party to any product supplied by the Consulting Firm under this Agreement if such modification is not authorised by the Consulting Firm in writing, or Any use by SANRAL of the products of the Services in a manner not reasonably to be inferred from the specification or requirements of SANRAL. (viii) (ix) B 43 If modification or substitution in accordance with clause B 42 (vi) above is not possible so as to avoid the infringement or the Consulting Firm has been unable to procure a licence in accordance with clause B 42 (vi), the Consulting Firm shall be liable to replace or procure replacement of the products of the Services or part thereof together with additional costs incurred in implementing and maintaining such replacements, including any costs to SANRAL. SANRAL hereby warrants that any instructions given in relation to the Consulting Firm s use of any third party product supplied directly or indirectly by SANRAL shall not cause the Consulting Firm to infringe any third party s intellectual property rights in such product. Conflict of interest/corruption and fraud The Consulting Firm shall neither: Offer or give or agree to give any person of SANRAL any gift or consideration of any kind as an inducement or reward for doing or forbearing to do or for having done or forborne to do any act in relation to the obtaining or performance of this Agreement or any other Agreement with SANRAL or for showing or forbearing to show favour or disfavour to any person in relation to this Agreement; nor Enter into this Agreement if in connection with it commission or a reward of any type has been paid, offered or agreed to be paid to any person of SANRAL by the Consulting Firm or on the Consulting Firm's behalf or to the Consulting Firm s knowledge. In the event that SANRAL comes to the opinion that any breach of clause B 43 has been perpetrated by the Consulting Firm or by anyone employed by the Consulting Firm or acting on the Consulting Firm s behalf in relation to this Agreement or any other contract with SANRAL, SANRAL may summarily terminate this Agreement by notice in writing to the Consulting Firm and withhold all payments due to the Consulting Firm for completed work. Provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to SANRAL and provided always that SANRAL may recover from the Consulting Firm such sum as SANRAL deems equivalent to the amount or value of any such gift, consideration or commission. In the event that SANRAL comes to the opinion that any contract with a Government or Public Sector body has been or was obtained by the Consulting Firm through actions that mutatis mutandis are similar in nature to those barred in terms of clause B 43 by the Consulting Firm or by anyone employed by the Consulting Firm or acting on the Consulting Firm s behalf in relation to such contract, SANRAL may summarily terminate this Agreement by notice in writing to the Consulting Firm and withhold all payments due to the Consulting Firm for completed work. Provided always that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to SANRAL. The Consulting Firm has the obligation to report to SANRAL all instances where employees of SANRAL solicit gifts and/or commission from the Consulting Firm.

18 17 B 44 Notices and Domicilia Except as otherwise expressly provided, no notice from one party to the other shall have any validity under this Agreement unless made in writing by or on behalf of SANRAL or as the case may be by or on behalf of the Consulting Firm. Any notice whatsoever which either party hereto is required or authorised by this agreement to give or make to the other shall be: delivered by hand during the normal business hours of the recipient; or sent by prepaid registered post to the postal address chosen by the addressee; or Any notice in terms of the provisions of this Agreement will be considered to be duly received: if delivered by hand, on the day of delivery, provided it was delivered to the chosen domicillium during normal business hours; if sent by registered post as indicated in clause B 44 above, within 14 days from the date it was posted; For the purpose of clause B 44 above the parties choose as their domicilia citandi et executandi for all purposes arising out or in connection with this Agreement the addresses as indicated in Part A of this Agreement. (v) Either party may change its domicilium citandi et executandi as referred to in clause B 44 to another physical address within the Republic of South Africa by notice as provided in clause B 44. B 45 B 46 Publicity and publication Neither party shall use or disclose the name or any other material and information of the other to third parties, in publicity releases or advertising or for other promotional purposes, or cause publication in any journals, without securing the prior written approval of the other party. Both parties shall take all reasonable steps to ensure the observance of the provisions of clause B 45 by all their employees, agents, and service providers. Notwithstanding the provisions of clause B 45 SANRAL shall be entitled to publicise the Agreement in accordance with any legal or quasi-legal obligation upon SANRAL. Confidentiality SANRAL and the Consulting Firm agree that the terms of this Agreement and all confidential and proprietary information of the parties communicated to them in connection with this Agreement may constitute trade secrets of the parties or financial, commercial or technical information, the disclosure of which would be likely to cause harm to the financial or commercial interests of the parties or which would prejudice the parties in commercial competition. Both SANRAL and the Consulting Firm shall treat the terms and details of this Agreement as private and confidential and shall not divulge such terms and details to any person without the prior written approval of the other party, except to the extent strictly necessary to carry out obligations under this Agreement or to comply with applicable laws.

19 18 B 47 Both parties shall treat all confidential and proprietary information obtained by them in connection with this Agreement or pursuant to the Project as private and confidential and shall not divulge such information to any person without the prior written approval of the other party. SANRAL and the Consulting Firm agree that the disclosure of the terms of this Agreement and any of the confidential or proprietary information will constitute an action for breach of confidence under this Agreement. Sole Agreement This Agreement constitutes the entire understanding between the parties relating to the subject matter of this Agreement and supersedes all prior representations, negotiations or understandings, proposals or prior arrangements, oral or written with respect hereto, except in respect of any fraudulent misrepresentation made by either party. B 48 B 49 B 50 Severability If any provision of this Agreement is held invalid, illegal, unlawful or unenforceable for any reason by any court of competent jurisdiction, such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid, illegal or unenforceable provision eliminated. In the event of a holding of invalidity so fundamental as to prevent the accomplishment of the purpose of this Agreement, SANRAL and the Consulting Firm shall agree to meet and review the matter to adopt valid and enforceable means by mutual agreement by way of variation of this Agreement. Waiver The failure of either party to insist upon strict performance of any provision of this Agreement, or the failure of either party to exercise any right or remedy to which it is entitled hereunder, shall not constitute a waiver thereof and shall not cause a diminution of the obligations established by this Agreement. A waiver of any Default shall not constitute a waiver of any subsequent default. No waiver of any of the provisions of this Agreement shall be effective unless it is expressly stated to be a waiver and communicated to the other party in writing in accordance with the provisions of clause B 44. Non renouncement of statutory powers Notwithstanding any provision contained in this Agreement or any right or obligations arising there from: SANRAL does not renounce any of its statutory powers; and both parties record SANRAL s power to act in accordance with the existing or future acts of Parliament or regulations made by virtue thereof and that this Agreement shall not affect such powers in any way whatsoever; and SANRAL shall have the right to refuse to furnish any information or documentation that the Consulting Firm may request in terms of this Agreement if SANRAL is of the opinion, based on reasonable grounds, that such information or documentation is confidential, or if

20 19 the disclosure of such information or documentation will infringe another party s copyright or any other right or breach a relation of trust between SANRAL and another party. SETTLEMENT OF DISPUTES B 51 Process of resolution B 51.1 Negotiation The parties shall negotiate in good faith with a view to settling any dispute or claim arising out of or relating to the Agreement and may not initiate any further proceedings until either party has, by written notice to the other, declared that such negotiations have failed. B 51.2 Mediation Any dispute or difference of opinion arising out of this Agreement, which cannot be settled between the parties may, with the consent of both parties, be referred without legal representation to the mediation of a person mutually agreed upon, or failing agreement, of a person nominated by the President (officiating at the time) of the South African Institution of Civil Engineering. The parties shall, within 14 days of the appointment of the mediator, or any such period as the parties may subsequently agree, confer with the mediator to agree the structure and programme for the mediation. The costs and fee of the mediator shall be borne equally by the Consulting Firm and SANRAL, and shall be due and payable to the mediator on presentation to them of his written accounts. The mediator shall on conclusion of the agreed process provide his opinion and recommendations on the resolution of the dispute. If notice has not been served in writing within 28 days, by either party on the other disputing the opinion and recommendations of the mediator the opinion(s) of the mediator shall be final and binding on the parties and shall not be subject to further dispute. B 51.3 Litigation After negotiation as referred to in Clause B51.1 has been declared to have failed, if either party is unwilling to agree to mediation or should the mediation fail, or should either party be dissatisfied with the opinion of the mediator, and within 28 days of having received the opinion has notified the other party in writing of its dissatisfaction; either party may serve process instituting action arising out of the dispute in a competent court.