PART 1: SUPPLIER AUTHORISATIONS, WARRANTIES, CONSENT AND INDEMNITY PROVISIONS

 

1.         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”).

 

2.         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 such information.

3.         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”).

 

4.         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.

 

5.         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.

 

6.         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or access by unauthorised persons, and/or any reliance which may inadvertently be placed on inaccurate, misleading, or outdated information and documentation, provided by myself or by a third party.

 

7.         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.

 

1.         

2.         

3.         

4.         

5.         

6.         

7.1.        Applicable documentation and information as mentioned above includes but is not limited to:

7.1.1.       Company registration information and documentation, addresses and contact details

 

7.1.2.       Names, surnames, telephone- and cell phone numbers and e-mail addresses of the company’s contact persons or company representatives

7.1.3.       Director 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

 

7.1.5.       bank account details

 

7.1.6.       Letter of Good Standing for the purposes of workman’s compensation          

 

7.1.7.       BEE certificate or Affidavit and related BEE information such as ownership structures, ownership / shareholding percentages, BEE level and so forth and

 

7.1.8.       confirmation of turnover.

 

8.         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 point on.

 

9.         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

 

1.         General

 

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

 

1.2.        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.

 

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.        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.

 

1.5.        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.

 

2.         Terms of Payment

 

2.1.        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 information.

 

2.2.        The licence fee will be payable each year on the birthday of the initial registration date.

 

2.3.        Token fees which are utilised for vetting shall be payable in advance to vet each document required within VCM.

 

2.4.        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.

 

2.5.        No refunds shall be made in the instance where a supplier submits and/or provides incorrect documentation and/or information.

 

2.6.        Should a supplier fail to pay the required licence fee, such a supplier’s access will be revoked.

 

2.7.        Regardless of whether a supplier is found to be compliant or not, fees paid will not be refundable under any circumstances.

 

2.8.        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.

2.9.        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.

 

3.         Protection of Personal Information

 

3.1.        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.

 

3.2.        The term “Personal Information” is defined in the POPI Act as follows:

 

3.2.1.       information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to –

 

3.2.1.1.           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

 

3.2.1.2.           information relating to the education or the medical, financial, criminal or employment history of the person

 

3.2.1.3.           any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person

 

3.2.1.4.           the biometric information of the person

 

3.2.1.5.           the personal opinions, views or preferences of the person

 

3.2.1.6.           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

 

3.2.1.7.           the views or opinions of another individual about the person and

 

3.2.1.8.           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.

 

3.3.        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:

 

3.3.1.       BEE 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

 

3.3.2.       Financial information, banking details, tax pin document, income tax-, VAT and PAYE numbers, turnover, name of accountant/auditor and confirmation of turnover

 

3.3.3.       Personal details such as first names, surnames, identity numbers and title of all directors, members, trustees, shareholders and/or representatives of the supplier

 

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.

 

3.3.5.       Contact 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.

 

3.3.6.       Company 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.

 

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

 

3.3.9.       Any other Personal Information as provided by the supplier.

 

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

 

3.4.1.       The supplier itself

 

3.4.2.       Publicly accessible platforms and

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

 

3.5.        The Personal Information will be collected by Prochain by way of direct submission thereof to VCM by the supplier.

 

3.6.        Prochain’s offices are situated at:

Route 21 Corporate Park
5 Regency Drive
Irene, 0062.

 

3.7.        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 activities

 

3.7.3.       To enable Prochain’s Clients to issue requests for quotations and tenders to vetted suppliers

 

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 sourcing and

3.7.6.       Data collection for the purpose of legislative reporting.

 

3.8.        Failure on the part of a supplier to provide its Personal Information will prevent a Client from carry out the above.

 

3.9.        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:

 

3.9.1.       Company registration documentation and information, registered company name, trading-as name, known-as name, registration number and physical-, postal and trading addresses of the supplier

 

3.9.2.       Contact 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

 

3.9.5.       BEE certificate or affidavit, ownership information, shareholding percentages, levels and any subsequent supplier classifications.

 

3.10.    A 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 located.

 

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 Information updated.

 

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.

 

3.13.    Should 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:

Telephone number: 012 406 4818

Fax number: 086 500 3351

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

 

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.

 

3.16.    The 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 reporting.

 

3.17.    The 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.

3.17.1.   The 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.

 

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 and shall include, but not be limited to:

 

4.1.1.       all information marked (in any legible form) confidential, restricted or proprietary by either of the parties or

 

4.1.2.       either 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.

 

4.2.        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.

 

4.3.        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.

 

4.4.        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.

 

4.5.        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.

 

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

 

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 or

 

4.6.5.       the receiving party independently developed additional information, without reference to any confidential information received by it from the disclosing party.

 

4.7.        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.

 

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 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.

 

4.10.    The 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.

 

5.         Termination, Reporting and Breach

 

5.1.        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 to termination.

 

5.2.        Termination of the agreement may take place in the following ways:

 

5.2.1.       Upon the supplier’s request for termination

 

5.2.2.       Automatically upon non-payment of licence fees by the supplier or

 

5.2.3.       automatically, where the supplier provides false information or commits any fraudulent act in relation to the provision of information.

 

5.3.        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.

 

5.4.        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.

 

6.         Limitation of Liability

6.1.        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.

 

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.

 

8.         Cession or Assignment

 

8.1.        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.

 

8.2.        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.

 

9.         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

 

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

 

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 e-procurement 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 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.

 

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

 

3           

4           

4.1          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.         Termination

 

Without 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.

 

7.         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.

 

8.         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 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.