Disclaimer. Property of the South African Facilities Management Association Page 1

Transcription

1 Disclaimer The South African Facilities Management Association ( SAFMA ) provides the attached contract precedent ( the Precedent ) purely and only as a courtesy to its members who remain solely responsible for the terms contained therein. Members are advised to consult with their attorneys when making use of the Precedent. SAFMA shall not be liable for any claims or losses whatsoever sustained or arising directly or indirectly from the use of the attached Precedent. Property of the South African Facilities Management Association Page 1

2 Facilities Management Agreement entered into between The Contractor ( The Contractor ) represented herein by in their capacity as duly authorised thereto and The Client ( the Client ) represented herein by in their capacity as duly authorised thereto Property of the South African Facilities Management Association Page 2

3 Table of Contents Clause Page 1. Definitions 3 2. Appointment 4 3. Duration 5 4. Services To Be Provided By The Contractor 5 5. Fees Payable 6 6. Independent Contractor 6 7. Contractors And Service Providers 6 8. General Responsibilities Of The Contractor 7 9. General Responsibilities Of The Client Monitoring of Services Insurance Facilities And Equipment To Be Provided By The Client Provision of Services Intellectual Property Rights Confidentiality Poaching of Personnel Management Audit Disclaimer And Indemnity Force Majeure Dispute Resolution Breach Notices And Domicilium Whole Agreement Waiver Non-Assignability Severability Applicable Law Legal Costs 20 ANNEXURES Annexure A: Consideration Payable in respect of the Services. 21 Annexure B: Authority Limits 26 Annexure C: Sample Amendment Authority Form 31 Annexure D: Scope of Services 33 Property of the South African Facilities Management Association Page 3

4 WHEREAS: A. The Contractor is the provider of facilities management services in the property industry; and B. The Client wishes to engage The Contractor to provide certain facilities management services. NOW THEREFORE IT IS AGREED AS FOLLOWS: 1. DEFINITIONS In this agreement: 1.1 clause headings are for convenience and are not to be used in its interpretation; 1.2 unless the context indicates a contrary intention, an expression that denotes: 1.3 any gender includes the other gender; 1.4 a natural person includes a juristic person and vice versa; 1.5 the singular includes the plural and vice versa; 1.6 the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings: Authority limits means the agreed authorisation procedures for fulfilment of the respective parties obligations in terms of this agreement, and which procedures are provided for in Annexure B hereto Amendment Authority Form means the form attached hereto as Annexure C, through which instructions shall be issued by the client to The Contractor where required by this agreement the Client means (company name) Client representative means the individual or individuals nominated by the Client, in writing, who shall be the representative of the Client in relation to all matters pertaining to this agreement effective date" means the 1 st day of xxxxxxxxxx (month and year); "The Contractor representative" means the individual or individuals nominated by The Contractor, in writing, who shall be the representative of The Contractor in relation to all matters pertaining to this agreement; Property of the South African Facilities Management Association Page 4

5 1.6.7 Individual Tenant Agreements means the Facilities Management Agreements between xxxxxxx and xxxxxxx and xxxxxxx, in terms of which xxxxxxxxxx provides various facilities management services in respect of such parties premises forming part of xxxxxx(address); Landlord Agreement means the agreement between The Contractor and the Landlord in terms of which The Contractor provides various facilities and property management services to the Landlord relating to xxxxxxx (address); the parties means the Client, and The Contractor; the Property or the Facility means xxxx (address) "the services" means the facilities management services as set out in Annexure D; excluded services means the services specifically not provided by The Contractor under this agreement, unless otherwise agreed to in writing, and which services are listed per Annexure D; supplementary services or additional services means any additional services as may be agreed to in writing by the parties from time to time using the Amendment Authority Form. 1.7 The annexures to this agreement form an integral part of the agreement. 1.8 Words contained in the annexures shall have the same meaning as those defined in the agreement. 1.9 In the event of an inconsistency between the provisions of annexures and the agreement, the provisions of the agreement shall prevail. 2. APPOINTMENT 2.1 The Client is the tenant of the property The Client warrants that it has been mandated by the owner to procure the services provided in terms of the agreement and that it is authorised by the owner to enter into this agreement The Client hereby appoints The Contractor to provide the services in respect Property of the South African Facilities Management Association Page 5

6 of the property and The Contractor accepts such appointment on the terms and conditions of this agreement. 3. DURATION 3.1 Terms of Agreement. This Agreement shall commence on the effective date and shall continue until expiry of the Initial Period ending on xxxxxxxxxxx (date), where-after it shall, subject to the provisions relating to termination contained in this Agreement, continue indefinitely for further successive periods of 12 (twelve) months each terminable by not less than 3 (three) months written notice by either party to the other provided that no such notice may be given to expire prior to the expiry date of such period. 3.2 Termination of Individual Tenant Agreements or the Landlord Agreement. It is recorded that The Contractor has concluded Individual Tenant Agreements with xxxxxxx and xxxxxxxx respectively and a Landlord Agreement with the Landlord, in respect of xxxxxxxxxxxxx (address) and that similar termination provisions as set out in clause 3.1 above are contained in such agreements. 4. SERVICES TO BE PROVIDED BY THE CONTRACTOR 4.1 Provision of the Services. During the currency of this agreement The Contractor shall provide the services to the Client in respect of the property in accordance with the terms and conditions of this agreement. 4.2 Additional Services. Should the client require any additional services The Contractor shall within reason render such services, subject to signature by the parties of the Amendment Authority Form prior to the commencement thereof, at which time this agreement shall be deemed to have been amended by the inclusion of such services. The Amendment Authority Form shall include agreement on the services to be rendered the fee payable in respect thereof and such additional staff as may be required to be provided by The Contractor. Property of the South African Facilities Management Association Page 6

7 5. FEES PAYABLE 5.1 Fees and payment terms. For the services provided to the Client by The Contractor, the Client will pay The Contractor the fees set out in Annexure A to the Agreement on the terms set out therein. 5.2 Value added tax. All amounts payable in terms of this Agreement will be subject to the payment of value-added tax at the prescribed rate unless expressly stated otherwise. The Contractor shall provide the Client with a value-added tax invoice in the format, and containing the particulars, required by law. 6. INDEPENDENT CONTRACTOR 6.1 Other than as expressly contained herein, in performing services under this Agreement, The Contractor is acting as an independent contractor to the Client. 7. CONTRACTORS AND SERVICE PROVIDERS 7.1 Third Party Agreements. The parties agree that, in rendering the services, The Contractor shall enter into agreements with independent professional persons, contractors and service providers ("maintenance and service provider contracts") for and on behalf of the Client and with the approval of the Client. 7.2 Costs of Third Party Contractors and Suppliers. Notwithstanding any obligation on the part of The Contractor to make any disbursements on behalf of the Client in terms of Annexure D, or as additional work, the Client shall be liable for all costs related to third party contractors and suppliers of goods and services in respect of the Client s premises and the proportionate share of the common area at xxxxxxxx in terms of the Client s Lease Agreement commitment, inclusive of costs associated with the payment thereof by The Contractor on behalf of the Client. Property of the South African Facilities Management Association Page 7

8 7.3 Selection, Contracting, Managing & Administering Third Party Agreements. Subject to compliance with the authority limits, The Contractor shall: tender work to be undertaken by the maintenance and service providers; select the maintenance and service providers; draw up the agreement documentation for signature by the Client and/or where agreed to enter into agreements with contractors on behalf of the Client; ensure that contractor agreement terms are acceptable to the client manage the implementation of the maintenance and service provider contractors; manage and administer the payment of all maintenance and service provider invoices. 7.4 Certification of Services Rendered. Upon receipt of a maintenance and service provider invoice The Contractor shall certify and advise the client of the amount due in respect thereof and shall furnish the Client with a statement in relation thereto (inclusive of all supporting documentation if so requested by the Client). 7.5 The Contractor Responsible to Pay Contractors It is specifically recorded that The Contractor is responsible to pay all contractors (on time and within a reasonable period of time). These expenses will be paid from the invoiced monthly expense recoveries received from the Client. 7.6 Service Contracts Ceded to the Client. In the event that the agreement between the Client and The Contractor terminates all service contracts and supplier orders in the name of The Contractor are automatically ceded to the Client. The Client will in turn accept liability and responsibility to settle all costs directly with the contractors for services rendered and for any future services in terms of these service contracts. 8. GENERAL RESPONSIBILITIES OF THE CONTRACTOR During the currency of this agreement, The Contractor shall, without limiting its responsibilities in relation to the provision of the services: 8.1 make available a sufficient number of competent personnel to render the services as and when required by this agreement, including any additional services, and including normal leave and illness within normal limits. In the Property of the South African Facilities Management Association Page 8

9 event that any resource shortfalls arise due to abnormal circumstances, The Contractor shall use its best endeavours to maintain the levels of service contracted for, failing which additional staff shall be employed by written agreement between the parties. 8.2 ensure that persons assigned to provide the services to the Client shall have the professional or other training necessary to perform their duties. 8.3 make all reasonable and necessary efforts to ensure that such persons discharge the duties assigned to them under this agreement in good faith and with the same degree of diligence, care and skill which a professional property and facilities management consultant would exercise under similar circumstances. 8.4 schedule Client meetings on an agreed to regular basis for representatives of the parties to discuss and consider the services provided and any remedial steps that may need to be taken in respect there-of. These proceedings to be formally minuted. 9. GENERAL RESPONSIBILITIES OF THE CLIENT During the currency of this agreement, the Client shall: 9.1 co-operate with The Contractor and provide The Contractor, free of charge, with all information which may be reasonably required by it for the provision of the services; 9.2 comply fully with the Client's obligations arising out of the maintenance and service provider contracts entered into by The Contractor for and on behalf of the Client as contemplated in this agreement; 9.3 other than in the event of The Contractor being in breach of this agreement, not, without the prior consultation with The Contractor, communicate any instructions to the maintenance and service providers referred to in clause 7 above. Should this occur the Client shall advise The Contractor accordingly; 9.4 not engage in any tenant installations, moves, additions or changes in respect of the property without informing and co-ordinating such with The Contractor and/or other than in accordance with the provisions of this agreement; 9.5 not, without the prior written consent of The Contractor (which shall not be unreasonably withheld), obtain any of the services from a third party or provide the services itself, which are to be provided by The Contractor in Property of the South African Facilities Management Association Page 9

10 terms of and for the duration of this agreement. This excludes professional consulting services; 9.6 grant The Contractor unencumbered access to the property as required by The Contractor to carry out the services with special care taken of the high risk areas as per the Client s current policies; 9.7 grant The Contractor reasonable access to its systems as required by The Contractor to carry out the services. 9.8 at all times communicate through The Contractor's representative as advised from time to time or such other persons as may be nominated by The Contractor's representative; 9.10 where a decision or authorisation is required of the Client, promptly consider the matter and furnish The Contractor with a response or decision so as not to delay or hinder the provision of the services by the Client, taking into account the urgency of the matter and the circumstances of each decision or authorisation as may be required; 9.11 remain solely responsible for all expenses relating to the property, including municipal and other statutory charges, building and related insurances as well as telephone systems maintenance, moves, additions and changes, mail room, reception and switchboard services as may be required by it, save as specifically provided to the contrary herein. 10 MONITORING OF SERVICES The Client shall have the right, at any time, to monitor the Services to ensure: 10.1 the successful delivery of the Services, inter-alia in respect of performance, quality, cost, safety and/or should it be in the best interest of the Client, timeous corrective action or termination of the Agreement that the directors who were awarded the Services Agreement are in control of the company and/or that changes in directors do not affect delivery of the Services Agreement adversely. Any changes in the control of the company are to be brought to the attention of the Client immediately. Property of the South African Facilities Management Association Page 10

11 11. INSURANCE 11.1 Insurance Cover by The Contractor. The Contractor will effect and maintain for the duration of the agreement the following insurance: a) professional indemnity insurance, including a limit of indemnity of R b) public liability insurance, limit of indemnity R Insurance Cover by the Client. The Client will effect and maintain for the duration of this agreement insurance relating to the Client s Buildings and Plant and Equipment as required by the Client including but not limited to property and contents insurance, public liability insurance and contract works insurance Proof of Insurance and Renewals. Each party shall upon written request from the other party ( the requesting party ), provide the requesting party with reasonable proof of such insurance, payment of required premiums and where applicable proof of renewals. Any failure by either party to comply with the insurance requirements set out in clauses 10.1 and 10.2 above shall entitle the other party to reasonably do so on the defaulting party s behalf and to claim an immediate refund of all premiums paid by it from the defaulting party. 12. FACILITIES & EQUIPMENT TO BE PROVIDED BY THE CLIENT 12.1 Management Office and Associated Accommodation. For the duration of this agreement, the Client shall provide to The Contractor a management office, a help desk area, a security control room, storerooms, fixtures and fittings, telephone and facsimile as required by The Contractor to provide the services to the Client Costs of facilities and equipment. The Client shall be responsible for the following direct operating expenses of the Contractor s Facilities Management team based at xxxxxxxxxxxxxx: Facilities Office rentals in respect of the facilities provided to The Contractor, Telephone, including cell phones, facsimile installation and operating costs, Photocopying, printing and associated stationery costs, Parking bays for use by The Contractor at xxxxxxxxxxxx, Electricity and associated costs of the site Facilities offices provided to Property of the South African Facilities Management Association Page 11

12 The Contractor, taking into account the allocation of the costs in rendering the services to the Client as well as the other Tenant s and Landlord at xxxxxxxxxxxxxxx. The total cost of the facilities and equipment is allocated to the Tenants at xxxxxxxx on the respective gross lettable areas (GLA s) as follows: 13. PROVISION OF SERVICES TO THIRD PARTIES. The Client acknowledges and agrees that The Contractor may from time to time provide services to third party clients within the property while undertaking the services provided in terms of this agreement. 14. INTELLECTUAL PROPERTY RIGHTS 14.1 Use of Technology by The Contractor. In the provision of the services, it is recorded that The Contractor makes use of, inter alia, certain software and systems ("the software and systems") Rights and Title. All rights and title in and to the software and all systems provided and utilised by The Contractor in the provision of the services remain the sole and exclusive property of The Contractor and the Client obtains no right or title thereto of whatsoever nature Ownership of Information. The ownership of the historical data and information provided by the Client relating to the property itself and to enable The Contractor to provide the services shall remain the property of the Client. Upon termination of the agreement The Contractor shall co-operate with the Client with immediate effect in returning the historical data and the information in a usable format or transferring it to an alternate service provider. Notwithstanding the reservation of ownership of this information to the Client, the Client authorises The Contractor to use this historical data and information for the purposes of refining or developing future management systems Drawings. Should any additional costs be necessary for inter alia the reproduction and / or updating of drawings such costs will be borne by the Client. Property of the South African Facilities Management Association Page 12

13 15. CONFIDENTIALITY 15.1 Confidentiality Obligation. The parties to this Agreement shall treat and hold as secret and confidential all information that relates to a party and/or its business and/or affairs subject to the exclusions referred to in paragraph 15.2 below Nature of the Confidential Information. The foregoing obligations shall not apply to any information which: is lawfully in the public domain at the time of disclosure; becomes lawfully part of the public domain by publication or otherwise; becomes available to a party from a source other than the other party, which source is lawfully entitled without any restriction on disclosure to disclose such confidential information; or is disclosed pursuant to a requirement or request by operation of law, regulation or court order This clause is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement. 16. POACHING OF PERSONNEL 16.1 Neither party shall, without the prior written consent of the other during the currency of this Agreement, engage, employ or otherwise solicit for employment whether directly or indirectly, any person who, during the currency of this Agreement, was an employee, representative, agent, consultant, or member of the personnel of the other party and who was involved in the provision or acquisition of Services in terms thereof. 17. MANAGEMENT AUDIT AND OTHER INVESTIGATIONS 17.1 Full and accurate records. The Contractor shall at all times keep full and accurate records of all Services provided in terms of this Agreement and shall retain such records for the currency of this Agreement. The Contractor shall upon request provide xxx with copies of such records. Upon termination of this Agreement such records must be provided to xxx upon request. Property of the South African Facilities Management Association Page 13

14 17.2 Management audit. XXX shall be entitled at any time during the currency of this Agreement to call for a management audit to be conducted, the purpose of which will be to determine whether The Contractor is providing the Services in accordance with the provisions of this Agreement Participation in management audit. The Contractor shall :- (1) upon not less than 7 (seven) days written notice, participate in a management audit to be conducted by xxx auditors or other agents; (2) provide such auditors or agents with such reasonable information, documentation, and access to personnel, premises and records as may be required by such auditors or agents to conduct the management audit Fraudulent or unlawful activity. (1) Should XXXX reasonably suspect any fraudulent or other unlawful activity by The Contractor or its personnel, XXX, its auditors or their respective authorised agents shall have the right:- (a) of immediate access to the personnel, premises and records contemplated in clause 16.3 to conduct an investigation; (b) to suspend the provision of the Services (or any part thereof) without compensation being payable to The Contractor, for a period not exceeding 14 (fourteen) days to enable finalisation of such investigation. (2) Should such investigation find that The Contractor or any of its personnel has been involved in any fraudulent or unlawful activity XXX shall be entitled to terminate the provision of the Services or any part thereof forthwith on written notice to The Contractor, without prejudice to XXX right to claim damages or to exercise any other remedies Cost of management audit and minimum interference. The management audit contemplated in clause 16.3 or the investigation contemplated in clause 16.4 will be conducted at The Contractors cost provided that where such audit or investigation finds that The Contractor has failed to provide the Services in accordance with the provisions of this Agreement or that The Contractor or any of its personnel has been involved in any fraudulent or unlawful activity The Contractor shall be liable for such cost Findings of audit will be prima facie proof. The findings of an audit or investigation contemplated in this clause shall be prima facie proof of its contents and shall entitle FMA to exercise its rights or remedies arising out of such findings. Property of the South African Facilities Management Association Page 14

15 18. DISCLAIMER AND INDEMNITY 18.1 Damage to Property, Injury to Persons and Loss of Life The Contractor accepts no responsibility or liability whatsoever in respect of any and all injury (including death or illness) to persons or loss or damage to property, whether direct or consequential, arising out of this agreement or the services provided by The Contractor, save in the event of the gross negligent or willful misconduct by The Contractor, its members, its employees, or agents, in the course of the provision of services Where a claim arises as a result of gross negligent or willful misconduct by The Contractor, its members, its employees, or agents, in the course of the provision of services, such claim shall be limited to direct damages suffered and no claim for consequential damages shall be made Damages or Loss caused by Latent or Patent Defects of Equipment or Systems. The Contractor shall have no liability of whatsoever nature to the Client, its tenants and its departments in respect of any loss or damage which may be suffered by the Client, its tenants, its departments or any other third party by reason of any latent or patent defect in the equipment and systems managed by The Contractor in the provision of the services either by the original design or any future design thereof, other than in the event of the gross negligence or willful misconduct of The Contractor, in which case any claims or damage shall once again be limited to direct damages suffered Actions and Claims of Maintenance and Service Providers. The Client hereby indemnifies The Contractor and holds it harmless against any and all actions, claims, costs or expenses in respect of claims of any maintenance and service providers arising out of this agreement save where The Contractor is in breach of the provisions of Clause 7.5 above. 19. FORCE MAJEURE 19.1 Liability for Failure to Fulfil a Party s Obligation. Delay or failure to comply with or breach of any of the terms and conditions of this agreement if occasioned by or resulting from an act of God or public enemy, fire, explosion, earthquake, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, strikes, blockade, embargo, sanctions, epidemics, act of any Government or other Authority, compliance with Government Property of the South African Facilities Management Association Page 15

16 orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the party so failing, will not be deemed to be a breach of this agreement nor will it subject either party to any liability to the other Entitlement to Terminate the Agreement. Should either party be prevented from carrying out its contractual obligations by force majeure (Clause 15.1) lasting continuously for a period of 90 (Ninety) days, the parties will consult with each other with the view to successful future implementation of the agreement. If no mutually acceptable arrangement is arrived at within a period of 30 (Thirty) days thereafter, either party will be entitled to terminate the agreement forthwith on written notice. 20. DISPUTE RESOLUTION The parties record their commitment to the expeditious and amicable resolution of disputes in the interests of fostering co-operation and promoting harmonious relations. Save where a particular remedy is specifically provided for in any clause of this agreement, all disputes between the parties relating to the implementation of this agreement, or its interpretation, shall be resolved by the following dispute resolution procedure: 20.1 Internal dispute procedure Should any dispute or point of difference arise, the party declaring such dispute shall, as soon as possible, communicate in writing to the other party, giving details of the dispute or points of difference, as well as the desired resolution The parties shall meet as soon as possible within 14 (fourteen)- calendar days to consider and discuss the dispute, and explore avenues of resolution. Subject to the parties agreement, a mutually acceptable mediator may be appointed to facilitate the resolution process Neither party to the dispute shall be represented or assisted at these proceedings by legal representatives If no mutually acceptable resolution is agreed at this meeting, the dispute will be referred to an expert for resolution in terms of Clause 16.2 hereof. Property of the South African Facilities Management Association Page 16

17 20.2 External dispute procedure (independent resolution by expert) The parties shall within a period of 5 (five) working days of the meeting referred to in Clause 16.1 above, elect an expert to consider and decide upon the method of resolution of the dispute The expert shall be a person mutually acceptable to the parties or, if they are unable to reach agreement on the election of such expert within the period allowed for herein, then a person nominated by the President for the time being of the Law Society of Gauteng shall be appointed as expert A hearing shall be held as soon as possible after the internal dispute procedure has failed to achieve resolution of the dispute. The appointed expert shall determine the procedures to be followed and shall not be bound by the laws of arbitration The hearing proceedings shall be scheduled in Johannesburg, or such other place as may be mutually agreed by the parties in writing Each party to the dispute shall be entitled to be represented at the hearing proceedings by its legal representative/s and/or any other expert/s or specialist/s The decision of the expert shall be final and binding upon all parties Anything herein contained or implied shall not preclude any party from applying to court for a temporary interdict or other relief of an urgent and temporary nature, pending the award of the expert hereunder The liability for the payment of the costs of, and incidental to, any such proceedings shall be in the discretion of the expert Clause Severable. This clause is severable from the rest of this agreement and shall remain valid and binding on the parties notwithstanding any termination of this agreement. Property of the South African Facilities Management Association Page 17

18 21. BREACH 21.1 Material Breach of Agreement. Should either party commit a material breach of this agreement and fail to remedy such breach within 14 (fourteen) days after having been called upon in writing by the other party to do so or within such longer period as the defaulting party may prove to be reasonable in the circumstances, if the breach is incapable of being remedied within this 14 (fourteen) day period, then and in such event such other party shall be entitled, in addition to any other rights and remedies that it may have in terms of this agreements or otherwise, including the right to recover damages, to terminate this agreement Non-Material Breach of Agreement. It is specifically recorded that, in the event of a non-material breach of this agreement by The Contractor, the Client's sole remedy shall be to claim specific performance and damages, if applicable. The Client shall not be entitled to terminate this agreement as a result of a non-material breach by The Contractor Other Events Entitling a Party to Terminate. Should either party: effect or attempt to effect a compromise or composition with its creditors; or be provisionally or finally liquidated or be placed in judicial management, whether provisionally or final; or cease or threaten to cease to carry on its normal line of business in the Republic of South Africa or default or threaten to default in the payment of its liabilities generally, or commit any act or omission which would, in the case of an individual, be an act of insolvency in terms of the Insolvency Act, No. 1936, as amended; or dispose of a material portion of its undertaking or assets; either of the other parties shall be entitled, but not obliged, to terminate this agreement on written notice to the other parties, in which event such termination shall be without prejudice to any claim which the other parties may have for damages against such party occasioned by the termination of this agreement in terms of this Clause, notwithstanding that the damages shall only have arisen due to termination in terms of this Clause. Property of the South African Facilities Management Association Page 18

19 22. NOTICES AND DOMICILIUM 22.1 Each of the parties chooses as its domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purpose arising from this agreement, as follows: The Client (Attention: ) Physical Address: Postal Address: Telefacsimile: The Contractor (Attention:) Postal Address: Business Address: Telefacsimile: 22.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address within the territory which is not a post office box or poste restante Any notice given and any payment made to either party ("the addressee") which: is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery; is posted by prepaid registered post to the addressee at the addressee's domicilium for the time being from an address within the territory shall be presumed, until the contrary is proved by the addressee, to have been received by the addressee on the 10 th (tenth) day after the date of posting. Property of the South African Facilities Management Association Page 19

20 22.4 Any notice which is sent by facsimile during the normal business hours of the addressee to the addressee's domicilium for the time being, shall be presumed to have been received on the first business day succeeding the date on which the facsimile was transmitted. 23. WHOLE AGREEMENT 23.1 This agreement constitutes the whole of the agreement between the parties hereto relating to the subject matter hereof, and save as otherwise provided herein no amendment, alteration, addition, variation or consensual cancellation will be of any force or effect unless reduced to writing and signed by the parties hereto The parties agree that no other terms or conditions, whether oral or written, and whether express or implied will apply hereto. 24. WAIVER 24.1 No waiver of any of the terms and conditions of this agreement will be binding or effectual for any purpose unless expressed in writing and signed by the party hereto giving the same, and any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of any party hereto in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege. 25. NON-ASSIGNABILITY 51.1 Cession or Assignment of Rights. Neither party shall be entitled to cede any of its obligations or assign any of its rights, in whole or in part, in terms of this Agreement to anyone else, without the prior written consent of the other party being obtained, which consent shall not be unreasonably withheld Sub-Contracting. The Contractor shall be entitled to sub-contract of its obligations in terms of this agreement to third parties, save that it is specifically recorded that the use of a sub-contractor in no way derogate from The Contractor's obligations in terms of this agreement. The conduct of the sub-contractor shall be deemed to be the conduct of The Contractor for purposes hereof. Property of the South African Facilities Management Association Page 20

21 26. SEVERABILITY Should any of the terms and conditions of this agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable. If any term or condition held to be invalid is capable of amendment to render it valid, the parties agree to negotiate an amendment to remove the invalidity. 27. APPLICABLE LAW This Agreement will be governed and construed in accordance with the laws of the Republic of South Africa and all disputes, actions and other matters relating thereto will be determined in accordance with such law. 28. LEGAL COSTS Each party shall bear its own legal costs in respect of the negotiation, preparation and execution of this agreement. Property of the South African Facilities Management Association Page 21

22 Signed at:- Date:- For and on behalf of The Client Signature Full Name Position By signing above I warrant that I have been 1 duly authorised to sign this Agreement Witness Signature Full Name Position Signature Full Name Position By signing above I warrant that I have been 2 duly authorised to sign this Agreement Witness Signature Full Name Position Signed at:- Date:- For and on behalf of Signature Full Name Position By signing above I warrant that I have been 1 duly authorised to sign this Agreement Witness Signature Full Name Position Signature Full Name Position By signing above I warrant that I have been 2 duly authorised to sign this Agreement Witness Signature Full Name Position Property of the South African Facilities Management Association Page 22

23 Annexure A CONSIDERATION PAYABLE IN RESPECT OF THE SERVICES

24 Table of Contents Clause Page 1. Fees and Payment Terms Facilities Management Fee Implementation Fee Overtime charges Payment Terms Overdue Fees Escalation Provisions Invoice Disputes. 25

25 CONSIDERATION PAYABLE IN RESPECT OF THE SERVICES 1. FEES AND PAYMENT TERMS. For the services provided to the Client, the Client shall pay to the Contractor the fees set out in the paragraphs below and on the terms set out therein. All fees stipulated are exclusive of value added tax. All amounts are subject to the payment of value added tax at the prescribed rate unless expressly stated otherwise. 2 FACILITIES MANAGEMENT FEE. 2.1 In consideration for the provision of the services in terms of this agreement the Client shall, with effect from the effective date, pay to the Contractor a monthly management fee of R 25, (Twenty Five Thousand, One Hundred and Fifty Eight Rand and Ninety Cents) subject to escalation as provided for in this Agreement. 2.2 It is recorded that no fee will be payable by the Client in consideration of the use of the CFMS by the Contractor in the provision of the Services, provided however that this Agreement is not terminated by the Client for a period of 2 (two) years after the effective date. 2.3 Should this Agreement be terminated by the Client prior to the expiry of a period of 2 (two) years after the effective date, for reasons other than due to breach by the Contractor, the Client shall pay the Contractor a fee equal to R (Thirty One Thousand Eight Hundred and Sixty Seven Rands and Sixty Three Cents) in consideration of the use of the CFMS in the provision of the Services. 3. IMPLEMENTATION FEE. In consideration of the provision of the services relating to the implementation tasks as contemplated in Annexure D attached, the Client shall pay the Contractor a once off management fee of R xxxxxxxxxx (xxxxxxxxxxxxxxxx Rand and xxxxxx Cents). The management fee payable in respect of the implementation tasks shall be payable within 7 (seven) days of presentation by the Contractor of an invoice to the Client detailing the tasks completed up to the date of the invoice. 4. OVERTIME CHARGES. The on site the Contractor Facility Manager and technical personnel will be on stand-by for emergency call outs to the Client s premises on a 24-hr basis. The Client shall be liable to reimburse the Contractor for after hours call-outs at salary rates paid to respective personnel applying normal overtime rates

26 plus expenses. Any scheduled overtime work shall be pre-authorised by the Client. 5. PAYMENT TERMS. 5.1 The fees in clause 2 above shall be due and payable by no later than the 15th day of the month for which the services are rendered in terms hereof. 5.2 Other fees and charges shall be due and payable by no later than 5 working days of receipt by the Client of the relevant tax invoice in respect of such work. 6. OVERDUE FEES. All overdue fees shall attract interest at 2% (two percent) above the prime rate, compounded monthly in arrears from date of default until date of payment, both days inclusive. 7. ESCALATION PROVISIONS. 7.1 The management fee shall be subject to an annual adjustment to be mutually agreed upon between the parties 1 (one) month prior to the end of each contract year. The first such increase is to be effective from xxxxx (date), and thereafter on xxxxxxx (date) of each year ( the escalation date ). 7.2 Should the parties be unable to reach agreement on the annual adjustment, the annual fee shall increase by the percentage increase of the Consumer Price Index ( CPI ) at the date of commencement and the CPI plus 2% (two percent) on the escalation date in question. 8 INVOICE DISPUTES. In the event of the Client disputing any portion or the whole of an invoice submitted by the Contractor, the Client shall furnish the Contractor with written notice thereof within 10 (ten) working days of receipt of the invoice concerned. Such written notice shall not permit the Client to delay payment on the undisputed portion of the invoice. Any disputed invoice shall be resolved in accordance with the dispute resolution procedures as set out in Clause 16 of the Agreement. In the event of it being determined that the contested amounts were due by the Client, the provisions of Clause 6 above shall apply.

27 Annexure B AUTHORITY LIMITS

28 Table of Contents Clause Page 1. Limits of Authority The Contractor s Authority Specific Limits of Authority Duty of Care and Exercise of Authority 29

29 AUTHORITY LIMITS 1. LIMITS OF AUTHORITY 1.1 The powers and authorities of each party to contractually bind itself or the other party pursuant to this agreement are contained in Clauses 2 and 3 of this Annexure. 1.2 the Contractor may only bind the Client if acting strictly in accordance with the agreement, and hereby indemnifies the Client for any obligations which may arise by purporting to bind the Client whilst acting beyond the scope of its authority or outside the obligations of the agreement. 1.3 The Client shall at all times have the right to amend or limit these powers and authorities. Any amendment or limitation of the powers and authorities shall be by written notice to the Contractor. 2. THE CONTRACTOR S AUTHORITY 2.1 the Contractor shall be and is hereby vested by the Client with all powers and authorities as are reasonably necessary to enable the Contractor to perform the functions to be undertaken by it in terms of this agreement. 2.2 the Contractor shall not make any contractual commitment on behalf of the Client or in respect of the facility save where such commitment has been included in, or identified in an approved budget, but subject to the provisions of clause 3 hereof, or when such commitment has otherwise received the prior written approval of the Client. 2.3 The Client has the right of approval of the budgets submitted by the Contractor in the provision of the services and shall absolve the Contractor from liability for loss or damage (including failure of facilities) occasioned as a result of budgets not being reasonably approved. 2.4 Subject to 3.2, the Client hereby authorises the Contractor to: undertake its obligations in terms of Clause 7.3 of the agreement; engage, on the Client s behalf, contractors, workmen and specialists; engage, on the Client s behalf consultants; acquire equipment, machinery and the like for and in connection with the maintenance of the premises and the performance of the Client s functions; bind the Client to and / or incur any capital expenditure approved in terms of an approved capital budget

30 2.4.6 bind the Client to and / or incur ongoing expenditure, the amount and duration of which is approved in terms of an approved budget incur necessary expenditure, in cases of emergency. Save that the Client shall have the right to specifically approve any actions undertaken by the Contractor in terms of this clause, provided that the Client gives the Contractor 21 (twenty-one) days prior written notice of any such requirements; 3. SPECIFIC LIMITS OF AUTHORITY 3.1 Neither party shall contractually bind itself or the other party in fulfilling its duties in terms of the agreement unless the relevant contract documentation has been signed by the following authorised signatories: Where the Client is required to sign the contract documentation: The original signatories to this Agreement in the event of material change to the terms and conditions of the Agreement The Client representative in the event of scope of services amendments as provided for in the Agreement and/or the authorisation of expenditure Where the Contractor is required to sign the contract documentation: The original signatories to this Agreement in the event of material change to the terms and conditions of the Agreement an the Contractor director plus the Contractor Regional Operations Manager in the event of scope of services amendments as provided for in the Agreement and expenditure authorisation. 4. DUTY OF CARE AND EXERCISE OF AUTHORITY 4.1 the Contractor shall exercise reasonable skill, care and diligence in the performance of their obligations under the Agreement. 4.2 Where the Services include the exercise of powers or performance of duties authorised or required by the terms of a contract between the Client and any third party, the Contractor shall: act in accordance with the contract provided that the details of such powers and duties are acceptable to him if authorised to certify, decide or exercise discretion, do so fairly between the Client and third party not as an arbitrator but as an independent authority acts by their skill and judgement.

31 4.2.3 if so authorised vary the obligations of any third party, subject to obtaining the prior approval of the Client to any variation which can have an important effect on costs or quality or time (except in the any emergency when the Contractor shall inform the Client as soon as practicable).

32 Annexure C AMENDMENT AUTHORITY FORM

33 AMENDMENT AUTHORITY FORM This form serves as an amendment authorisation of the Services Agreement concluded between the parties. Save as herein amended all other terms and conditions of the original Agreement shall remain in full force and effect. DETAILS OF AMENDMENTS TITLE: DATE: DETAILS: REASONS: FEES / COSTS: STAFF AMENDMENTS: REQUESTED BY: SUPPORTING DOCUMENTS (ATTACHED HERETO:) SIGNED FOR AND ON BEHALF OF THE CLIENT DATE: 1) NAME: 2) NAME: SIGNED FOR AND ON BEHALF OF THE CONTRACTOR DATE: 1) NAME: 2) NAME:

34 Annexure D SCOPE OF SERVICES

35 Table of Contents Clause Page 1. Third Party Contractors The Client s Plant and Equipment Management of CFMS Management of Help Desk Facility Help Desk Function Availability of Help Desk Priorities User Feedback Technical Services 5.1 Maintenance Management 5.2 Included Technical Services 5.3 Excluded Technical Services 5.4 Management of Building Management System 6. Non Technical Services 6.1 Management of Services 6.2 Include Non-Technical Services 6.3 Excluded Non-Technical Services 7. Specific Management Services and Responsibilities 7.1. Included in the Facilities Management Service. 7.2 Excluded Facilities Management Services 8. Management Reports. 9. Services Management Structure.

36 SCOPE OF SERVICES 1. THIRD PARTY CONTRACTORS The Contractor shall prepare specifications and conclude Third Party Contractor Agreements in respect of: the non-technical functions required immediately prior to the Client s move and in the provision of the services the maintenance and supply services necessary in respect of the Client s plant and equipment where no warranties or guarantees exist and which shall expire during the initial period of this agreement. 2. THE CLIENTS PLANT AND EQUIPMENT the Contractor shall, in accordance with Clause 5 of this Annexure, provide certain maintenance management services in respect of the various plant and equipment situated at the Client s properties, being: Building Systems and Features. Electrical Systems. Lighting and Emergency Lighting Systems. Heating, Ventilation & Air Conditioning Systems. Mechanical Systems, Security Systems (Access, Surveillance, Alarm, Evacuation) Fire Control Systems Additional Systems and Equipment 2.2 Details of the specific equipment of the types stipulated above and situated on the Clients properties shall be loaded on the computerised facilities management system ( CFMS ) utilised by the Contractor at the Client s properties. 3. MANAGEMENT OF THE COMPUTERISED FACILITIES MANAGEMENT SYSTEM (CFMS) 3.1 the Contractor shall manage its CFMS in the provision of the services to the Client at the Client s premises for the duration of this Agreement. the Contractor shall in addition supply, install and data load upgrades to CFMS and provide support services and software upgrades to the systems as

37 considered appropriate by the Contractor and as included for in the system s annual maintenance fee. 3.2 The CFMS modules installed and to be managed by the Contractor include, inter alia Help Desk Instruction Set (Maintenance Tasks) Planned Preventative Maintenance (PPM s) 4 MANAGEMENT OF HELP DESK FACILITY 4.1 HELP DESK FUNCTION. the Contractor shall manage and operate the Contractor help desk, the function of which is to: - provide a single point of contact between the Client and the Contractor for the logging and date stamping of all problems relating to the Client s premises and the Client s plant and equipment. allocate all logs to the appropriate the Contractor personnel or Third Party Contractors for resolution having regard to the nature of the Log; follow up all logs allocated as set out above through to resolution; provide feedback to the Client s users as to the status of logs and resolution of logs; closure of logs; filing of all records for future reference. 4.2 AVAILABILITY OF HELPDESK. The Contractor help desk shall be available for logging of problems, requests and change requests during normal operating hours. The Contractor in conjunction with the Client shall develop a system to ensure the Contractor help desk is manned at all times during normal operating hours. 4.3 PRIORITIES The Help Desk Operators shall allocate a response priority to each call logged, which priority levels and associated call response and completion time limits shall be agreed to with the Client from time to time.