1: SUPPLIER AUTHORISATIONS, WARRANTIES, CONSENT AND INDEMNITY PROVISIONS
I confirm that I have the requisite
authorisation to provide, submit and/or make available information on behalf of
my company as required in terms of the Vendor Compliance Management System (“VCM”).
I hereby authorise Prochain Best Practice
Supply Chain Solutions Proprietary Limited (“Prochain”), to access all
information provided, submitted and/or made available in VCM or otherwise,
including Personal Information as defined in the Protection of Personal
Information Act 4 of 2013 and to conduct verification and vetting checks on
I furthermore expressly provide consent for
the vetting results of my company’s compliance status to be displayed and made accessible
to Prochain and the VCM clients, which include but is not limited to Petra
Diamonds Southern Africa Proprietary Limited (“Clients”).
By submitting any information in any form,
including Personal Information in VCM, I acknowledge that such conduct
constitutes a reasonable unconditional, specific and voluntary consent to the
processing, verification and vetting of such information by Prochain.
I warrant that all information and
documentation, including Personal Information, supplied in VCM is accurate and
current and agree to maintain and my company’s compliance information and
documentation at all times.
I unconditionally agree to indemnify Prochain
and/or its Client(s), acting in good faith in taking reasonable steps to
process my information lawfully, against any liability that may result from the
processing of information provided in VCM. This includes unintentional
disclosures of such information to, or access by unauthorised persons, and/or
any reliance which may inadvertently be placed on inaccurate, misleading, or
outdated information and documentation, provided by myself or by a third party.
It is recorded that the purposes of VCM is to:
promote legal compliance provide reporting as required by the Department of
Mineral Resources and or the Department of Trade and Industry amongst others establish
a central supplier database, known as VCM conduct verification and vetting of supplier’s
company legal compliance documentation and/or information enable participating Clients
to issue requests for quotations, tenders and purchase orders to enable and
promote competitive sourcing through the VCM platform provide information to
Clients to affect payments and to complete commercial agreement details where
Applicable documentation and information as
mentioned above includes but is not limited to:
Company registration information and
documentation, addresses and contact details
Names, surnames, telephone- and cell phone numbers
and e-mail addresses of the company’s contact persons or company representatives
and/or shareholder information including nationality, race, gender, age,
contact details and identity or passport numbers.
7.1.4. tax compliance
status pin document and related information such as VAT, income tax and PAYE numbers
7.1.6. Letter of
Good Standing for the purposes of workman’s compensation
certificate or Affidavit and related BEE information such as ownership
structures, ownership / shareholding percentages, BEE level and so forth and
I acknowledge that I am entitled to change or
revoke my consent at any time. When I revoke my consent, Prochain, and
participating Clients will no longer be able to access my information from that
The consent I give (as set out herein) is
valid from the date and time when I give consent and will continue until I
change or revoke my consent as set out in the above-mentioned clause.
10. I declare
that I have had the opportunity to read (or have had read to me) and I am aware
of and fully understand all the terms, conditions and consequences of giving my
consent. My consent to all the terms and conditions herein is provided of my
own free will without any undue influence from any person.
PART 2: GENERAL TERMS AND CONDITIONS
These General Terms and Conditions (“Terms
and Conditions”) shall apply to all suppliers that register on VCM.
By accepting these Terms and Conditions, the
supplier acknowledges, accepts and agrees, in light of the purpose of VCM, if a
supplier is found to have provided fraudulent information and/or documentation such
supplier profile will be classified as being non-compliant and be flagged with
an indicator to inform participating Clients thereof.
Suppliers should take specific note that the
main purpose of VCM is to promote legal compliance. In this regard the supplier
acknowledges and agrees that Prochain does not in
any way guarantee or warrant that the supplier will obtain any opportunities or
new business by virtue of registering on VCM.
Suppliers should take specific note that it
will be required to submit all its company compliance documentation for vetting
before becoming eligible to respond to any available opportunities.
The law which is to apply to these Terms and
Conditions, and according to which these Terms and Conditions are to be
interpreted, shall be the law of the Republic of South Africa.
Terms of Payment
In order to register and make use of VCM, a supplier
will be required to pay an annual licence fee per user as well as purchase
tokens for the purpose of vetting its legal compliance documentation and/or
The licence fee will be payable each year on
the birthday of the initial registration date.
Token fees which are utilised for vetting shall
be payable in advance to vet each document required within VCM.
Vetting fees become payable upon the renewal
and/or new submission of documents and/or information on VCM as vetting needs
to be repeated each time the said documents expire or are updated.
No refunds shall be made in the instance where
a supplier submits and/or provides incorrect documentation and/or information.
Should a supplier fail to pay the required licence
fee, such a supplier’s access will be revoked.
Regardless of whether a supplier is found to
be compliant or not, fees paid will not be refundable under any circumstances.
Where a supplier wishes to remove or delete
its profile from VCM and no longer wishes to make use thereof, any amounts paid
by such supplier will not be refundable.
Should a supplier wish to make payment into
Prochain’s bank account and therefore not make use of the payment gateway
within VCM, Prochain will only provide access to VCM or commence with vetting
once the applicable amounts reflect in Prochain’s bank account. Prochain shall
not be held liable for any delays caused in this regard.
Protection of Personal Information
To comply with the Protection of Private
Information Act 4 of 2013 (“POPI Act”), the following provisions are
specifically brought to the attention of the supplier.
The term “Personal Information” is
defined in the POPI Act as follows:
relating to an identifiable, living, natural person, and where it is
applicable, an identifiable, existing juristic person, including, but not
limited to –
information relating to the race, gender, sex,
pregnancy, marital status, national, ethnic or social origin, colour, sexual
orientation, age, physical or mental health, well-being, disability, religion,
conscience, belief, culture, language and birth of the person
information relating to the education or the
medical, financial, criminal or employment history of the person
any identifying number, symbol, e-mail
address, physical address, telephone number, location information, online
identifier or other particular assignment to the person
the biometric information of the person
the personal opinions, views or preferences of
correspondence sent by the person that is
implicitly or explicitly of a private or confidential nature or further
correspondence that would reveal the contents of the original correspondence
the views or opinions of another individual
about the person and
the name of the person if it appears with
other personal information relating to the person or if the disclosure of the
name itself would reveal information about the person.
Prochain will collect such Personal
Information from the supplier (or otherwise known as the Data Subject), which
shall specifically include but not be limited to:
documentation and information, including BEE certificates or affidavits, letter
from the supplier’s accountant confirming turnover, ownership and shareholding
distribution percentages in accordance with race and age
information, banking details, tax pin document, income tax-, VAT and PAYE
numbers, turnover, name of accountant/auditor and confirmation of turnover
details such as first names, surnames, identity numbers and title of all
directors, members, trustees, shareholders and/or representatives of the
3.3.4. The names,
surnames, gender, race, age, identity numbers, registration number (if
applicable), shareholder percentages, entity type (if applicable), registered
entity name (if applicable) of the supplier’s shareholders, members or trustees.
details, including telephone numbers, cell phone numbers, physical addresses, proof
of address, e-mail addresses of the supplier and its employees, directors,
members, trustees and/or any other company representatives.
registration documentation, company structure information, business sector
category as well as joint venture agreements between the supplier and a third
party (if applicable).
3.3.7. Letter of
Good Standing issued by the Department of Labour, The Federated Employers
Mutual Assurance Company or Rand Mutual Assurance.
capability and traceability information, including supplier’s technical
assessment scorecard (if applicable).
3.3.9. Any other Personal
Information as provided by the supplier.
The source(s) from which the Personal
Information will be collected include:
3.4.1. The supplier
3.4.2. Publicly accessible
to whom the supplier previously made such Personal Information available.
The Personal Information will be collected by
Prochain by way of direct submission thereof to VCM by the supplier.
Prochain’s offices are situated at:
Route 21 Corporate Park
5 Regency Drive
The purposes for which the supplier’s Personal
Information will be collected and processed are as follows:
3.7.1. To enable
the establishment of a central supplier database, known as VCM
3.7.2. To ensure
that the Personal Information and documentation of all suppliers on VCM are
verified and vetted to promote compliance and thus prevent corrupt business
3.7.3. To enable
Prochain’s Clients to issue requests for quotations and tenders to vetted
3.7.4. To issue
purchase orders and make payments to suppliers by using the banking and company
information supplied by the supplier in VCM
3.7.5. To create
a database, known as VCM, which various Clients can use to promote competitive
collection for the purpose of legislative reporting.
Failure on the part of a supplier to provide its
Personal Information will prevent a Client from carry out the above.
The Personal Information will be received by
Prochain and will be fully visible to the supplier and Prochain. The following Personal
Information will be made visible to participating Clients of VCM:
registration documentation and information, registered company name, trading-as
name, known-as name, registration number and physical-, postal and trading
addresses of the supplier
details, names, surnames, telephone and cell phone numbers and e-mail addresses
of the supplier and its company representatives
3.9.3. tax pin
document, income tax-, VAT and PAYE numbers, bank account details
3.9.4. Letter of
Good Standing issued by the Department of Labour, The Federated Employers
Mutual Assurance Company or Rand Mutual Assurance and
certificate or affidavit, ownership information, shareholding percentages,
levels and any subsequent supplier classifications.
supplier’s Personal Information as collected and vetted by Prochain may at
times leave South Africa due to the reason that Prochain’s Client base is not
limited to the Republic of South Africa alone.
3.10.1. To ensure
that a supplier’s Personal Information is protected to the extent required, all
international Clients who register to become part of VCM will be required to
adhere to the POPI Act’s requirements, irrespective of where such Clients are
3.11. The supplier
has the right to access its Personal Information and has the obligation to
rectify any incorrect details and to maintain and keep such Personal
3.12. The Personal
Information collected by Prochain will be retained by it for up to a maximum of
5 (five) years for the purpose of legislative reporting.
there be a breach of the confidentiality of a supplier’s Personal Information,
Prochain will take all reasonable steps to ensure that the supplier is notified
promptly of such breach. Prochain does not, however, accept any liability for
the unauthorised use of a supplier’s Personal Information by any Client.
3.14. The supplier
has the right to lodge a complaint to the Information Regulator where the supplier
is of the view that its rights in terms of the POPI Act have been breached. The
contact details of the Information Regulator are as follows:
number: 012 406 4818
number: 086 500 3351
3.15. The supplier
acknowledges that it has been made aware of its rights in terms of the POPI Act
and agrees that acceptance of these Terms and Conditions constitutes permission
to collect and process the Personal Information of such supplier as required by
VCM and for the purpose(s) as set out in these Terms and Conditions.
supplier acknowledges and agrees that Prochain or any of its Clients may use
its Personal Information for purposes of requesting quotations, requesting
information, issuing a purchase order, drafting and/or amending a contract and B-BBEE
supplier acknowledges and agrees that should there be a suspicion of fraudulent
representations of the supplier’s BEE status or commitment to black social and
economic upliftment (known as “fronting”), Prochain may evaluate the Personal
Information that has been provided by the supplier and use such Personal
Information to investigate the true value of the supplier’s contribution to the
development and upliftment of historically disadvantaged communities.
outcome of said investigation will be made available to the relevant
authorities or Clients requesting such information. The supplier acknowledges
and agrees that it may affect the supplier’s compliance score and may also be
displayed to Clients participating on VCM.
For the purposes of these Terms and
Conditions, all information furnished by Prochain to the supplier, and vice
versa, shall be deemed confidential information and shall include, but not be
information marked (in any legible form) confidential, restricted or
proprietary by either of the parties or
party’s know-how, data, documentation, sketches or diagrams, reports, systems,
technical specifications, techniques, manufacturing processes, reports and
monitoring results, inventions, patents, tenders and contracts or
4.1.3. any other
commercially sensitive information, such as rates, names of suppliers,
customers, manufacturing processes, business strategies and any other
proprietary information deemed confidential by the disclosing party.
The parties shall hold in confidence all
confidential information received from one another and shall not divulge the
confidential information to any person including employees, save for the
employees or agents directly involved with the execution of the scope of work,
and in such case, the disclosure of the confidential information to such
employees or agents shall only be to the extent required for the execution of
the scope of work.
Each party will ensure that its employees,
agents or other third parties, who may require to be exposed to the
confidential information, will have signed a confidentiality agreement which
contains no less favourable terms than those set out herein.
With respect to all confidential information
provided by either party, the parties will use the same care and diligence to
prevent disclosure to unauthorised third parties of such confidential
information, as it employs to avoid disclosure, publication or dissemination of
its own confidential information.
The parties will not publicly disclose the
terms of these Terms and Conditions, or any other agreement between them,
without the prior written consent of the other party.
Notwithstanding the foregoing, this clause
will not apply to any information, to which the parties can demonstrate the
4.6.1. at the
time of disclosure, such information was known in the public domain
disclosure, such information became published or otherwise, becomes part of the
public domain through no fault of the receiving party
information was already in the possession of the receiving party at the time of
disclosure by the disclosing party
receiving party also received such information, after disclosure by the
disclosing party, from a third party who had a lawful right to disclose such
information to it or
receiving party independently developed additional information, without
reference to any confidential information received by it from the disclosing
At the request of either party, at any time,
the parties shall promptly deliver to the requesting party all written,
printed, electronically stored and copied confidential information of whatever
nature disclosed to it without retaining any copies thereof and shall either so
deliver or destroy any written material based on the confidential information.
The parties agree to use the confidential
information for the sole purpose of these Terms and Conditions and the purposes
as set out herein.
Should there be a dispute between the parties
as to whether either party complied with the provisions of this clause or not,
the onus shall be on the alleged defaulting party to show that it took all
reasonable steps to comply with the provisions of this clause and further, the
aggrieved party shall take all reasonable steps to assist the alleged
defaulting party in establishing the source from which such confidential
information was made known.
provisions of this clause 4 (Confidentiality) shall survive
the fulfilment, cancellation or termination of these Terms and Conditions for
any reason whatsoever and remain binding on the parties in perpetuity.
Termination, Reporting and Breach
Either party may terminate the agreement, immediately
at any given time by written notice thereof to the other party. The supplier
will, however, not be entitled to the return of any payments made by it prior
Termination of the agreement may take place in
the following ways:
Upon the supplier’s request for termination
Automatically upon non-payment of licence fees
by the supplier or
automatically, where the supplier provides
false information or commits any fraudulent act in relation to the provision of
Prochain shall be entitled to, in addition to
terminating the agreement between the parties, report any supplier where such
supplier commits any fraudulent act in relation to the information provided to
Prochain, including the intentional provision of false information. Such
supplier may therefore be prevented from accessing VCM and may be prohibited
from ever registering on VCM again.
Where a party is in breach or default of these
Terms and Conditions or of the provisions of the agreement entered into between
the parties, the defaulting party shall be notified in writing within 7 (seven)
calendar days of the aggrieved party’s dissatisfaction with regard to
performance or non-conformance and shall be provided with the opportunity to
respond in writing and take corrective action within 7 (seven) calendar days
after being issued with the notice. Record shall be kept of all communication
in this regard.
Limitation of Liability
In no event shall Prochain be liable for any
damages (including, without limitation, lost profits, business interruption, or
lost information) arising out of the supplier’s use of or inability to use VCM.
In no event will Prochain be liable for loss of data or for indirect, special,
incidental, consequential (including lost profit), or other damages based in
contract, delict or otherwise. Prochain shall have no liability with respect to
the content of VCM or any part thereof, including but not limited to errors or
omissions contained therein, libel, infringements of rights of publicity,
privacy, trademark rights, business interruption, personal injury, loss of
privacy, moral rights or the disclosure of confidential information. Prochain
accepts no liability where a supplier suffers reputational damage or where
current or potential work of such a supplier is compromised as a result of the
vetting conducted and the subsequent compliance status results allocated to
such a supplier’s profile.
All electronic communications received by
Prochain whether directly or via VCM from the supplier or vice versa shall be
deemed legally binding and enforceable by law as provided in Chapter 3, section
11(1) – 11(3) of the Electronic Communications and Transactions Act 25 of 2002,
provided that the electronic communication have been sent by a person duly
authorised to commit the party in accordance with the provisions of these Terms
The information contained in any electronic
communication shall be deemed as confidential, legally privileged and protected
by law. Any electronic communication shall be deemed solely for the use of the
intended recipient to whom it is addressed. The unauthorised use of any such
electronic communication or any attachments thereto, by any person other than
the intended recipient is strictly prohibited.
Cession or Assignment
The supplier shall not be entitled to cede,
assign or delegate any of its rights and/or obligations without having obtained
the prior written consent of Prochain.
Prochain may cede any of its rights and/or
delegate any of its obligations under these Terms and Conditions to a third
party, by giving 5 (five) business days’ written notice thereof to the supplier.
Concession not to Constitute Waivers
No grant by either party to the other
of any concession, waiver, condonation or allowance shall, in respect of any
specific event or circumstance other than that in respect of which the grant
was made, constitute a waiver of the rights of the grantor in terms of these
Terms and Conditions or estoppel of the grantor’s right to enforce the
provisions of these Terms and Conditions.
PART 3: END-USER LICENCE AGREEMENT FOR VCM AND
THE E-PROCUREMENT FUNCTIONALITY
read the terms and conditions of this license agreement carefully before
continuing with this programme:
Prochain’s End-User License Agreement (“EULA”)
is a legal and binding agreement between the supplier (either an individual or
a single entity) and Prochain, for the Prochain software product(s), namely the
Vendor Compliance Management system (“VCM”) and e-procurement
functionality which may include associated software components, media, printed
materials, and “online” or electronic documentation (“Software Product”).
By installing, copying or otherwise using the Software
Product, the supplier agrees to be bound by the terms of this EULA. This license
agreement represents the entire agreement concerning the program between the
supplier and Prochain (referred to as “licenser”), and it supersedes any
prior proposal, representation, or understanding between the parties in this
regard. If the supplier does not agree to the terms of this EULA, the supplier
must not install or use the Software Product.
The Software Product is protected by copyright
laws and international copyright treaties, as well as other intellectual
property laws and treaties. The Software Product is licensed, not sold.
Grant of License
Prochain grants the supplier the right to use
the cloud-based Software Product on its computer running a validly licensed
copy of the operating system and internet browser for which the Software
Product was designed [Windows XP, Windows Vista, Windows 7].
Description of Other Rights and Limitations
Maintenance of Copyright Notices
The supplier may not remove or alter any
copyright notices on any and all copies of the Software Product.
The supplier may not distribute registered or
unregistered copies of the Software Product to third parties.
Prohibition on Reverse Engineering,
Decompilation and Disassembly
The supplier may not reverse engineer,
decompile, or disassemble the Software Product, except and only to the extent
that such activity is expressly permitted by applicable law notwithstanding
The supplier may not rent, lease or lend the Software
Prochain may provide the supplier with support
services related to the Software Product (“Support Services”). Any
supplemental software code provided to the supplier as part of the Support
Services shall be considered part of the Software Product and subject to the
terms and conditions of this EULA.
Compliance with Applicable Laws
The supplier must comply with all applicable
laws regarding use of the Software Product.
prejudice to any other rights, Prochain may terminate this EULA if the supplier
fails to comply with the terms and conditions of this EULA. In such event, the
supplier must destroy all copies of the Software Product in its possession.
including but not limited to copyrights, in and to the Software Product and any
copies thereof are owned by Prochain. All title and intellectual property
rights in and to the content which may be accessed through use of the Software
Product is the property of the respective content owner and may be protected by
applicable copyright or other intellectual property laws and treaties. This
EULA grants the supplier no right to use such content. All rights not expressly
granted are reserved by Prochain.
expressly disclaims any warranty for the Software Product. The Software Product
is provided “As Is” without any express or implied warranty of any kind,
including but not limited to any warranties of merchantability,
non-infringement, or fitness of a particular purpose. Prochain does not warrant
or assume responsibility for the accuracy or completeness of any information,
text, graphics, links or other items contained within the Software Product.
Prochain makes not warranties in respect of any harm that may be caused by the
transmission of a computer virus, worm, time bomb, logic bomb or other such
computer program. Prochain further expressly disclaims any warranty or
representation to Authorised Users or to any third party.