PART 1: SUPPLIER AUTHORISATIONS, WARRANTIES AND CONSENT

1.       I confirm that I have the necessary authorisation to provide, submit or make available information on behalf of my company as required in terms of the Vendor Compliance Management System (“VCM”) and in accordance with the purposes of VCM.

2.       I confirm that I have obtained the necessary authorisations from my company directors, shareholders and employees (as the case may be) to provide their Personal Information as defined in the Protection of Personal Information Act 4 of 2013 (“POPIA”).

3.       I hereby provide consent for Prochain Best Practice Supply Chain Solutions Proprietary Limited (“Prochain”), to access my company’s information submitted in VCM. I acknowledge that acceptance of these Terms and Conditions constitutes permission to collect and process the Personal Information of my company as required in VCM and for the purposes as set out in Part 2 (General Terms and Conditions).

4.       By accepting these terms, I acknowledge that such conduct constitutes a reasonable unconditional, specific and voluntary consent to the processing of my Personal Information by Prochain and third party service providers and for same to be made available to participating VCM clients in accordance with Part 2 (General Terms and Conditions).

5.       I warrant that all information and documentation, supplied in VCM is accurate, true and current and agree to maintain my company’s compliance information and documentation at all times.

6.       I unconditionally agree that considering the purpose of VCM, should I provide any fraudulent information, that my company profile will be classified as non-compliant and will be flagged with an indicator to inform participating clients thereof.

7.       I agree not to share my VCM login details with any other person and will take all measures necessary to ensure that my login details are kept secret. I furthermore agree to maintain the confidentiality provisions as set out in Part 2 (General Terms and Conditions).

8.       I agree to indemnify and hold Prochain and its directors, officers, employees, development partners, third party service providers or agents harmless against any and all losses, liabilities, damages, claims, fines, penalties, costs and expenses (including legal fees) as set out in Part 2 (General Terms and Conditions).

9.       I acknowledge that I am entitled to change or revoke my consent at any time. When I revoke my consent, my company’s profile will be removed from VCM and participating clients will no longer be able to access my information from that point on. My consent is valid from the date and time when I provide consent and will continue until I change or revoke my consent.

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 and conditions relating to VCM as set out in Part 2 (General Terms and Conditions) and Part 3 (EULA) and the consequences of giving my consent.

IMPORTANT: Should you not accept or agree to the terms of VCM, please do not continue and do not use the software product.

PART 2: GENERAL TERMS AND CONDITIONS

1.      General

1.1.       These General Terms and Conditions (“Terms and Conditions”) shall apply to all suppliers that register on VCM. 

1.2.       Where it is suspected that fraudulent representations have been made, Prochain shall without any prejudice to its rights, inform relevant participating clients of such suspicion for further investigation by such client(s). Should it be found that fraudulent representations have indeed been made on the part of the supplier, Prochain shall flag such a supplier on VCM and may inform relevant authorities thereof.

1.3.       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.

1.4.       All a supplier’s company compliance documentation must be submitted for vetting before a supplier will be able to respond to opportunities (where available). Vetting of documentation may take up to 3 business days. In this regard, suppliers are urged to submit their profiles for vetting timeously. Prochain will not be held liable should a supplier be unable to respond to RFQs due to its profile not being vetted in full.

1.5.       Permitting a supplier to use and access VCM will be at the sole discretion of Prochain. Prochain reserves the right to remove a supplier from VCM where any actual or perceived conflict of interest may exist.

1.6.       The law which applies to these Terms and Conditions shall be the law of the Republic of South Africa.

2.      Licence- and Vetting Fees

2.1.       To make use of VCM, a supplier will be required to pay an annual licence fee per user as well as token fees for the purpose of vetting its legal compliance documentation and/or information. In some instances, clients may sponsor their suppliers and thus pay these costs on their behalf.

2.2.       Payment can be made via VCM’s payment gateway, alternatively should a supplier wish to make payment into Prochain’s bank account, Prochain will only provide access to VCM or commence with vetting once the applicable amounts reflect. Prochain shall not be held liable for any delays caused in this regard. Invoices can be requested via email from finance@prochain.co.za, by providing the supplier’s full company name, address and VAT number (if applicable).

2.3.       Licence fees will be payable each year on the birthday of the initial registration date.

2.4.       Token fees utilised for vetting are payable in advance to vet each document required within VCM.

2.5.       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.

2.6.       No refunds shall be made in the instance where a supplier submits and/or provides incorrect documentation and/or information, nor will additional tokens be provided.

2.7.       Fees paid will not be refundable under any circumstances.

3.      Protection of Personal Information

3.1.       To comply with the Protection of Private Information Act 4 of 2013 (“POPI Act”), the following specific provisions are brought to the attention of the supplier.

3.2.       The term “Personal Information” refers to any private information about an identifiable living natural person or, an identifiable existing juristic person (company).  

3.3.       Prochain will collect documentation and subsequently, Personal Information relating to the supplier. Such documentation and/or information shall include but not be limited to:

3.3.1.      Company details: company name, company registration number, addresses, municipal area and contact details;

3.3.2.      Directors / members / trustee information: names, identity numbers and documents;

3.3.3.      Shareholding information: names, identity numbers and documents, shareholder ownership information, shareholder certificates and shareholder percentages;

3.3.4.      Financial information: bank account details and back account confirmation letters;

3.3.5.      Tax information: tax compliance status pin documents and tax numbers;

3.3.6.      B-BBEE information: B-BBEE certificate or affidavit and confirmation of turnover (i.e. turnover letter;

3.3.7.      Letter of Good Standing for workmans compensation;

3.3.8.      Contact information of the supplier and its representatives: telephone numbers, cell phone numbers and e-mail addresses;

3.3.9.      Other information such as joint venture agreements between the supplier and a third party (if applicable) and other certifications required by participating clients;

3.3.10.   Technical capability and traceability information, including supplier’s technical assessment scorecard (if applicable);

3.3.11.   Any other Personal Information as provided by the supplier; and

3.3.12.   Special Personal Information of the supplier such as gender, race and/or ethnic origin, biometric information or information about criminal offences or convictions.

3.4.       The Personal Information listed above will be received by Prochain and used specifically to carry out vetting on a supplier’s legal- and B-BBEE compliance documentation. The following information will be available to participating clients:

3.4.1.      Vetting status or results and the supplier’s vetting reports;

3.4.2.      Company registration documentation and information such as registered company name, trading-as name, known-as name, registration number, addresses and municipal area;

3.4.3.      Director and shareholder names and identity numbers and documents;

3.4.4.      Contact details, names, surnames, telephone and cell phone numbers and e-mail addresses;

3.4.5.      Tax compliance documentation, tax numbers and banking details;

3.4.6.      Letter of Good Standing for Workmans Compensation;

3.4.7.      B-BBEE certificate or affidavit, shareholder ownership information, shareholding percentages, levels and any subsequent supplier classifications in terms of the Mining Charter;

3.4.8.      Special Personal Information such as gender, race and/or ethnic origin, biometric information or information about criminal offences or convictions.              

3.5.       Prochain may appoint and/or collect information relating to a supplier from various third parties including bureaus, suppliers of background check services and publicly available sources.

3.6.       The purposes for which the supplier’s Personal Information will be collected and processed are as follows:

3.6.1.      To enable the establishment of a central supplier database whereby suppliers register once and are visible to all participating clients;

3.6.2.      To ensure that the Personal Information of all suppliers on VCM are verified and vetted to promote compliance and thus prevent corrupt business activities;

3.6.3.      To create a platform whereby SMMEs and larger established suppliers can gain equal access to opportunities that participating clients might make available from time to time;

3.6.4.      To enable participating clients to:

3.6.4.1.      Outsource their supplier compliance management to Prochain;

3.6.4.2.      Update their suppliers’ information and data within their financial system / ERP via APIs;

3.6.4.3.      Ascertain a supplier’s compliance status with regard to the Companies- and B-BBEE Act;

3.6.4.4.      Ascertain whether directors have been guilty of criminal offenses;

3.6.4.5.      Request quotations; invite tenders or to request information;

3.6.4.6.      Issue purchase orders from their financial system / ERPs;

3.6.4.7.      Complete contract details;

3.6.4.8.      To classify suppliers according to locality and the Mining Charter (where applicable); and

3.6.4.9.      To enable legislative and B-BBEE reporting required by the Department of Trade Industry and Competition or the Department of Mineral Resources.

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3.7.       The source(s) from which the Personal Information will be collected include:

3.7.1.      The supplier itself by way of direct submission thereof to VCM;

3.7.2.      Publicly accessible platforms; and

3.7.3.      Client(s) to whom the supplier previously made such Personal Information available.

3.8.       Failure on the part of a supplier to provide its Personal Information will prevent Prochain and participating clients from carrying out the above.

3.9.       All suppliers’ Personal Information is stored in the cloud. Only such personnel authorised and participating clients have access to such Personal Information.

3.10.    A supplier’s Personal Information 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 and VCM is further hosted on servers located in Europe.

3.11.    Data security is managed by our third-party developers which also host VCM. The said developers are ISO:270001 certified, POPIA and GDPR compliant.

3.12.    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 Information updated.

3.13.    The Personal Information collected by Prochain will be retained for as long as a supplier is registered on VCM and specifically requests its profile to be removed. Should a supplier revoke its consent and requests its profile to be removed from VCM, such supplier’s profile and information will be deleted from all platforms as may be applicable. Upon specific request from the supplier, Prochain will issue a declaration or certificate warranting that the supplier’s profile and information has been deleted.

3.14.    Should there be a breach of the confidentiality of a supplier’s Personal Information, Prochain shall notify the affected supplier immediately thereof.

3.15.    The supplier shall in such an instance be provided with the following:

3.15.1.   Description of the nature of the breach;

3.15.2.   The likely consequences; and

3.15.3.   Description of the measures taken, or proposed to be taken to address the breach, including measures to mitigate its possible adverse effects.

3.16.    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:

Telephone number: 012 406 4818

Fax number: 086 500 3351

E-mail address: inforeg@justice.gov.za

4.      Confidentiality

4.1.       For the purposes of these Terms and Conditions, all information furnished by Prochain to the supplier, and vice versa, shall be deemed confidential information. Prochain’s confidential information is specifically recorded to include, but not be limited to:

4.1.1.      Proprietary information which includes but is not limited to: coding developed by Prochain; VCM training or information manuals; screens; manner of collecting information; vetting processes, results, vetting classifications and reports; any type of supplier classifications; commodity data and communication issued directly from VCM and any other information that could cause damage in any way or form to Prochain if it is disclosed; or

4.1.2.      Any other commercially sensitive information.

4.2.       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, as it employs to avoid disclosure, publication or dissemination of its own confidential information.

4.3.       Each party will ensure that its employees or agents who may require to be exposed to the other Party’s confidential information, will have signed a confidentiality agreement which contains no less favourable terms than those set out herein.

4.4.       Should a supplier require to share Prochain’s confidential information with a third party, the supplier, shall prior to sharing such confidential information obtain written consent from Prochain detailing what will be shared and for which purposes. It should however be noted that Prochain may withhold such consent at its sole discretion.

4.5.       Where Prochain suspects a breach of these terms, Prochain shall without prejudice and without incurring liability, have the right to suspend such supplier’s use of- and access to VCM as well as restrict any other entities with the same directors. Such suspension may be temporary or permanent and shall be at the sole discretion of Prochain.

4.6.       Notwithstanding the foregoing, this clause will not apply to any information, to which the parties can demonstrate the following:

4.6.1.      At the time of disclosure, such information was known in the public domain;

4.6.2.      After disclosure, such information became published or otherwise, becomes part of the public domain through no fault of the receiving party;

4.6.3.      Such information was already in the possession of the receiving party at the time of disclosure by the disclosing party; or

4.6.4.      The 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.

4.7.       A party may at any time request the other party to destroy all written, printed, electronically stored and copied confidential information of whatever nature in its possession without retaining any copies thereof. The party requested to destroy such confidential information will be required to certify within 3 business days that such destruction was carried out. Failing which, the requesting party may report the other party to the Information Regulator.

4.8.       The parties agree to use the confidential information for the sole purpose of these Terms and Conditions and the purposes as set out herein.

4.9.       Should there be a dispute between the parties as to whether a party complied with these provisions or not, the onus shall be on the alleged defaulting party to show that it took all reasonable steps to comply 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.

4.10.    The provisions of this clause shall survive the fulfilment, cancellation or termination of these Terms and Conditions for any reason whatsoever and remain binding on the parties in perpetuity.

5.      Breach and Termination

5.1.       In the event of either party breaching any of its obligations under these Terms and Conditions, and where a defaulting party fails to remedy such breach within a period of 3 business days of receipt of written notice from the aggrieved party calling upon it to do so, the aggrieved party shall be entitled without further notice:

5.1.1.      to claim specific performance; or

5.1.2.      suspend or cancel this agreement;

in either event, without prejudice to the aggrieved party’s rights, to claim damages or to enforce any other remedy to which it may be entitled in law.

5.2.       Specific conditions constituting breach of these Terms and Conditions include but are not limited to:

5.2.1.      false information provided by the supplier or where a supplier commits any fraudulent act; or

5.2.2.      breaches the confidentiality provisions contained in these Terms and Conditions.

5.3.       Either party may furthermore terminate this agreement, immediately without incurring any liability at any given time by written notice thereof to the other party.

6.      Limitation of Liability

6.1.       Prochain takes reasonable technical and organisational measures to secure the integrity of a supplier’s Personal Information and uses accepted technological standards to prevent unauthorised access or disclosure, and to protect Personal Information from misuse, loss, alteration and destruction. Despite these measures, as far as the law allows, Prochain will not be liable for any loss, claim and/or damage arising from any unauthorised access, disclosure, misuse, loss, alteration or destruction of a Supplier’s Personal- and/or Special Personal Information.

6.2.       The supplier hereby indemnifies and holds Prochain and its directors, officers, employees, development partners, third party service providers or agents harmless against any and all losses, liabilities, damages, claims, fines, penalties, costs and expenses (including legal fees) arising out of or in connection with this agreement or use of VCM.

6.3.       Prochain shall further not be held liable should a supplier suffer 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.

7.      Communications

7.1.       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 and Conditions.

7.2.       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 and may lead to an immediate termination of this agreement.

PART 3: END-USER LICENCE AGREEMENT FOR VCM AND THE REQUEST FOR QUOTATION FUNCTIONALITY

IMPORTANT: Please read the terms and conditions of this license agreement carefully before continuing:

1.       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 request for quotation functionality which may include associated software components, media, printed materials, and “online” or electronic documentation (“Software Product”).

2.       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 programme between the supplier and Prochain (referred to as “licenser”).

3.       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.

4.       Grant of License

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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].

5.       Description of Other Rights and Limitations

5.1.       Maintenance of Copyright Notices

The supplier may not remove or alter any copyright notices on any and all copies of the Software Product.

5.2.       Distribution

The supplier may not distribute registered or unregistered copies of the Software Product to third parties.

5.3.       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 this limitation.

5.4.       Rental

The supplier may not rent, lease or lend the Software Product.

5.5.       Support Services

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.

5.6.       Compliance with Applicable Laws

The supplier must comply with all applicable laws regarding use of the Software Product.

6.       Copyright

All title, 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.

7.       No Warranties

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 no 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.