SERVICE SUPPLY AGREEMENT

Transcription

1 Private Bag X9966, Sandton, 2146, Johannesburg, South Africa MMG House, 66 Park Lane, Sandton, 2196 Telephone: Facsimile: Website: SERVICE SUPPLY AGREEMENT Entered into by and between Registration Number: (The Client) and MECS Growth (Proprietary) Limited Registration Number: 1992/002387/07 ("The TES") Directors: R.C.E. Glass, S. Kase, I.G. Morris

2 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 2 INTRODUCTION 1. The Client has undertaken to utilise the TES to supply the Services of Temporary Employees on the terms and conditions set out in this Agreement. In addition hereto, the specific terms as contained in the relevant Schedule to the Service Supply Agreement in respect of each individual temporary employee of the TES, must be read together with this Agreement. DEFINITIONS 2. Unless it is inconsistent with the context, the expressions referred to below shall have the following meanings: 2.1 any gender shall include the other gender; 2.2 a natural person shall include a juristic person and vice versa; and 2.3 the singular shall include the plural and vice versa; 3. Assignment Completion Date shall mean either the fixed date indicated in the Schedule to the Service Supply Agreement as the date on which the temporary employee s assignment at the Client shall automatically terminate or, in the event that the Schedule to the Services Supply Agreement indicates that the temporary employee s assignment at the Client shall automatically terminate on completion of specific task/s for which he was employed and/or the date on which such task/s are actually completed. 4. The Temporary Employees shall mean the contractors employed by the TES who will perform Services on behalf on the TES to the Client for a temporary period. 5. The TES shall mean MECS Growth (Pty) Limited, a South African company with Registration Number 1992/002387/ Intellectual Property shall mean all inventions, improvements, designs, trademarks, knowhow, specialised technical information or expertise, notwithstanding the manner in which it is recorded or created by the TES, or the TES s Temporary Employees, during the Services for the Client in terms of this Agreement. 7. The Schedule shall mean the Schedule to the Service Supply Agreement attached hereto.

3 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 3 8. The Services shall mean the variety of services to be provided by the TES, including sourcing and securing Temporary Employees and managing them on the basis as set out in the Schedule. 9. The Service Period shall mean the period as set out in the Schedule of the Service Supply Agreement. 10. Ultimate control shall mean the TES duty and right to discipline, performance manage, instruct and if necessary, terminate the Temporary Employees employment. SERVICES 11. The Temporary Employees will, in performance of the assignments, work under the direct supervision of the Client while the TES will retain Ultimate Control of the Temporary Employees. 12. The Client must immediately advise the TES of any change in circumstances which may impact on a temporary employee s Schedule to the Service Supply Agreement, including, but not limited to, any amendment to the Services to be supplied, the Service Period and the location where the Services are to be supplied. DUTIES OF THE TES 13. The TES hereby undertakes to: 13.1 ensure that all Services supplied by the TES in performance of this Agreement shall be executed by Temporary Employees who are careful, skilled, experienced and competent in their respective trades or professions and that the Temporary Employees conform to sound professional standards applicable to relevant industry and/or area of expertise; and 13.2 ensure that the temporary employee complies with all reasonable and/or lawful instructions given to him from time to time by the Client, without undue supervision; 13.3 ensure that it complies with all its obligations with regard to taxation of the temporary employee and itself.

4 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 4 INSURANCE 14. The parties have reached the following agreement with regard to risk insurance that will be applicable with regard to the Temporary Employees and the work performed by them: 14.1 The TES will ensure that the Temporary Employees are insured against injury at work ( Workmens Compensation ) and are fully covered under the COID Act The TES will ensure that the Temporary Employees are registered and insured under the Unemployment Insurance Act It is compulsory for all TES employees to be insured through the MECS Employee Benefit Program. The Client is responsible for the monthly payments of the aforementioned employee benefit program as set out in Schedule hereto The TES has an Agreement with International SOS for medical evacuation services. Medical evacuation is necessary for all TES contractors and will be charged to the Client. Should the Client provide its own medical evacuation insurance, written proof thereof must be provided to the TES and no charge will be made to the Client in respect thereof. Alternatively, the Client is responsible for the required cover period payment of the medical evacuation insurance as set out in Schedule hereto The TES subscribes to an Employee Benefit Program to provide TES contractors with similar benefits provided to permanent employees. This service is in line with the proposed amendments in terms of the LRA and BCEA. Accordingly, the client will contribute by paying one of three options that are recorded in the Schedule to this Agreement All insurance policies shall be so written and endorsed to provide that the Client s insurance company shall have no right of recovery against the TES or its affiliates. LIABILITY 15. The parties agree that in circumstances where either party has direct control over the temporary employee in compliance with applicable legislation or agreements, that each party hereby indemnifies the other party from any claim, demand, cause of action, liability loss or expense arising from any non-compliance by that party, including any joint and several liability that may arise in terms of any statute.

5 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page Further to clause 15 above, should the Client not comply or not allow the TES to comply with the, prescribed TES HR & IR procedures, as issued to the Client, and the applicable labour legislation which in turn results in a CCMA award, tribunal award or court order being made against the TES, the Client will be liable for the full payment of any such CCMA award, tribunal award or court order. This clause supersedes any other clauses relating to this point in any previous commercial agreements entered into between the Client and the TES. 17. In the event of full compliance of the TES HR & IR procedures as aforementioned which nevertheless results in a CCMA referral or court action, the Client hereby agrees that it will be required to assist the TES in such CCMA or court action and will supply the TES with any witnesses or evidence it may require in order to present its case. PAYMENT OF SERVICES 18. Payment shall be made as per the quoted rate in the Schedule to the Service Supply Agreement. 19. In regard to fixed compensation, the total invoice value shall be payable on the dates as specified on the attached payments schedule of each month following receipt and acceptance by the Client of the invoice 20. Payments of invoices to the TES are to be made by the Client within thirty (30) days of presentation of said invoices by the TES or as mutually agreed in writing. Please be advised MECS Growth (Pty) Ltd reserves the right to administer interest on all overdue accounts. Interest will be charged at the prime lending rate of the South African Reserve Bank plus 3%. 21. The Client shall not offset any amounts due in terms of a specific invoice. The Client will ensure that a specific payment relates to a specific invoice, whether the invoiced amounts are disputed or not. 22. The TES shall reimburse Temporary Employees for all the temporary employee s Client approved expenses and/or disbursements incurred by the temporary employee in the rendering of Services to the Client. The Client shall directly reimburse the TES in respect of any such expenses and/or disbursements upon presentation of the proof thereof by the TES.

6 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 6 CONFIDENTIALITY 23. The TES undertakes to procure that each temporary employee who provides Services to the Client for the duration of this Agreement and the relevant Schedule to the Service Supply Agreement and after termination thereof for any reason whatsoever, will provide the appropriate undertakings in favour of the Client to keep confidential and not to utilise or divulge in any manner, the Client s and its Clients trade secrets, intellectual property and confidential information. 24. The TES undertakes that it will not, for the duration of this Agreement and the relevant Schedule to the Service Supply Agreement, and after termination thereof for any reason whatsoever, utilise or divulge in any manner, the Client s and its Clients trade secrets, intellectual property and confidential information. COPYRIGHT AND ASSIGNMENT 25. The TES undertakes to procure that the Temporary Employees supplied by it provide undertakings to respect existing intellectual property rights of the Client as well to give effect to the undertakings provided by the TES in terms of this Agreement. THE TEMPORARY EMPLOYMENT RELATIONSHIP 26. By virtue of the position of the TES as a service provider and an employer, as defined in the Labour Relations Act, only the TES is entitled to exercise Ultimate Control in respect of the Temporary Employees. 27. The Client acknowledges that in order for the TES to be in a position to effectively discipline or performance manage its Temporary Employees, the Client must inform the TES of any transgressions or unsatisfactory performance by Temporary Employee/s rendering Services to the Client to allow for a reasonable opportunity to address the issues and provide all relevant information and/or evidence in this regard to the TES. 28. In the event that the Client gives notice of termination of the use of a temporary employee s Services, due to non/or inadequate performance, prior to the Assignment Completion Date and is unable or is unwilling to place the TES in a position to fairly dismiss the temporary employee for reasons related to non-performance misconduct, incapacity or operational requirements, the Client hereby indemnifies the TES against all statutory severance costs or damages that may be awarded and made payable by the TES to the temporary employee in respect of the early termination of his Services and any associated legal costs of a claim by the temporary employee in this regard, including but not limited to, any order for costs.

7 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page In the event that the Client gives notice of termination of the use of a temporary employee s Services under the circumstances described in clause 26 above the TES will have an obligation to attempt to place any temporary employee so returned in a different assignment or in a position with a different labour broker to avoid the payment by the Client of statutory severance costs to the temporary employee involved. DETERMINATION OF DISPUTES 30. In the event of any dispute or difference arising between the parties relating to or arising out of this Agreement and/or the Schedule to the Service Supply Agreement, including but not limited to the implementation, execution, interpretation, rectification, termination or cancellation of this Agreement and/or the Schedule to the Service Supply Agreement, the parties shall meet and attempt to settle such dispute or difference and, failing the settlement of the dispute or difference within a period of 30 (thirty) days, the dispute shall be submitted to arbitration in Johannesburg in accordance with the Rules of the Arbitration Foundation of Southern Africa ( AFSA ) by an arbitrator or arbitrators appointed by the Foundation. 31. Notwithstanding anything stated to the contrary in this Agreement, nothing in this clause shall preclude any party to the arbitration from seeking interlocutory relief in any Court having jurisdiction pending the institution of appropriate proceedings for the enforcement of any rights under this Agreement. 32. The parties undertake to keep the arbitration, including the subject matter of the arbitration and the evidence heard during the arbitration, confidential and not to disclose it to anyone except for the purposes of an order to be made in terms of clause 30 above. 33. The decision of the arbitrator shall, in the absence of grounds of review, be final and binding on the parties and may be made an order of Court at the instance of either party. NON SOLICITATION, RESTRAINT AND RESIGNATION OF EMPLOYEE 34. The parties agree that the Client, the Client s Client, subsidiaries or associates will not attempt to recruit TES employees for direct employment by the Client during the duration of this Agreement or for a period of twelve (12) months after termination for any reason whatsoever, without first obtaining the written permission of the TES. 35. The parties further agree that, for the duration of this agreement and for a period of twelve (12) months following the termination of this Agreement, the Client, the Client s Client, subsidiaries or associates will not utilise the Services of Temporary Employees supplied by the TES through any other temporary employment service, without first obtaining the written permission of the TES.

8 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page The parties agree that, in the event that the Client, the Client s Client, subsidiaries or associates do employ a temporary employee of the TES in contravention of its duties in terms of this agreement as per clause 34 above, and without prior Agreement with the TES, the Client, the Client s Client, subsidiaries or associates will immediately become liable for the payment of a recruitment fee equivalent to 20% of the annual cost to company salary of the employee. 37. In the event that the Client or its Clients, subsidiaries or associates and the TES agree in writing to the employment of a temporary employee of the TES with the Client or its Clients, subsidiaries or associates, the Client, the Client s Client, subsidiaries or associates, will pay the TES a placement fee equivalent to 20% of the annual cost to company salary. 38. The TES will not incur any liability in the event that a temporary employee to a Client resigns before the completion of an assignment. The TES will endeavour to find a replacement within one (1) month of the TES being notified by the Client in writing. TERMINATION OF SERVICES 39. This Agreement may be terminated by sixty (60) days in writing by the Client: 39.1 if the TES commits a material breach of the provisions, each provision being considered material of this Agreement. DOMICILIUM AND NOTICES 40. For all purposes of this Agreement or any matter arising in connection herewith, the parties hereby choose the following addresses as their respective domicilium citandi et executandi: 40.1 The Client: 40.2 The TES MECS Growth (Pty) Ltd MMG House 66 Park Lane Sandton 2196

9 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page Either party shall be entitled by notice in writing to the other party to change its domicilium as set out above. 42. Any notice which may be required to be given to a party to this Agreement shall be sent to such party s address as set above, or duly altered from time to time, and shall be delivered either by hand, in which event it shall be deemed to have been received on the date of delivery or sent by facsimile, in which event it shall be deemed to have been received at the time of transmission as reflected on the transmission slip. GOVERNING LAW AND FOREIGN ASSIGNMENT 43. This Agreement shall be deemed to be executed in the Republic of South Africa and shall be construed and enforced in accordance with the laws of the Republic of South Africa. 44. The parties agree that, in the event that the Services of any temporary employee supplied by the TES is utilised by the Client outside of the Republic of South Africa at any time during this agreement, the Client will accept full responsibility for the health and well-being of the employee during his/her absence from the Republic of South Africa and that the TES will not be held liable, and is hereby indemnified by the Client, with regard to all and any expenses relative to such temporary employee for the period of his/her absence from the Republic of South Africa, including but not limited to, health and safety measures, medical treatment, medical evacuation, repatriation including repatriation of body in the event of death, living expenses, accommodation, transport, obtaining of any relevant permits and visas, additional professional indemnity insurance and any additional costs resulting from a foreign taxation regime. 45. The parties further agree that in the event that the Services of any temporary employee supplied by the TES is utilised by the Client outside of the Republic of South Africa, the Client indemnifies the TES with regard to any liability that may arise relative to legal requirements imposed by any foreign jurisdiction in which the temporary employee may perform Services on behalf of the Client. 46. The Client will, in the event that it intends to utilise the Services of any temporary employee supplied by the TES outside of the Republic of South Africa, give the TES prior notice of the date of departure of the temporary employee from the Republic of South Africa and the likely date of return of the employee to the Republic of South Africa and will inform the TES when such temporary employee arrives back in South Africa. 47. The parties agree that the Client s responsibilities with regard to the use of any temporary employee outside the Republic of South Africa will survive the termination of this Agreement.

10 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 10 GENERAL 48. In the event that the Client has agreed that the TES shall exclusively supply the Services as set out in this agreement to the Client, the exclusivity of the TES Services will be deemed to be incorporated herein as a material term and condition of this agreement. 49. This Agreement and the applicable Schedule to the Service Supply Agreement constitutes the entire agreement between the parties, and no representation by either of the parties or their agents, whether made prior or subsequent to the signing of this Agreement, shall be binding on either of the parties unless in writing and signed by both the parties hereto. 50. No variation or consensual cancellation of this agreement or any of the terms thereof including the applicable Schedule to the Service Supply Agreement shall be of any force or effect, unless it is reduced to writing and signed by the parties hereto, save for such terms and conditions as arise out of this Agreement and applicable Schedule to the Service Supply Agreement. 51. No waiver or abandonment by either party of his/her rights in terms of this Agreement and applicable Schedule to the Service Supply Agreement shall be binding on that party, unless waiver or abandonment is in writing and signed by the waiving party. 52. No indulgence, extension of time, relaxation or latitude which any party ( the grantor ) may show, grant or allow to another ( the grantee ) shall constitute a waiver by the grantor of any of the grantor s rights and the grantor shall not thereby by prejudiced or estopped from exercising any of its rights against any grantee which may have arisen in the past or which might arise in the future. 53. The parties may not cede or assign any of their rights and obligations in terms of this Agreement and applicable Schedule to the Service Supply Agreement, without the written consent of the other party. 54. Unless the context indicates otherwise the rights and obligations of any party arising from this Agreement and applicable Schedule to the Service Supply Agreement shall devolve upon and bind its successors-in-title. 55. The parties agree that they will do all things reasonable and sign all documents necessary to give effect to the terms of this Agreement and applicable Schedule to the Service Supply Agreement and to all transactions deriving there from.

11 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page The parties agree to keep the terms of their relationship and terms and conditions contained in this Agreement and applicable Schedule to the Service Supply Agreement confidential and not to disclose any such matters to any other person without the prior written consent of the other party. 57. The parties agree that all resumes submitted to the Client by the TES shall remain the confidential property of the TES and may not be disclosed to any third party. The parties further agree that resumes shall be time and date stamped and that interviews / employment will only be offered to the contractor / TES whose resume was received soonest. SIGNED AT in the presence of the undersigned witnesses. ON THE DAY OF 2014 Signatory for and on behalf of (Company) (Name) Being duly authorised Signature As Witness SIGNED AT in the presence of the undersigned witnesses. ON THE DAY OF 2014 Signatory for and on behalf of MECS Growth (Pty) Ltd (Name) Being duly authorised Signature As Witness

12 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 12 SCHEDULE TO THE SERVICE SUPPLY AGREEMENT SCHEDULE OF RATES 1.1 Client name: 1.2 Project period: Not project specific 1.3 MECS Growth Scope of work: Labour Brokering Services Recruitment HR Management Payroll administration Procurement (if required) Logistics support (if required) 1.4 Estimated number of TES employees: 1.5 Fee structure Mark-up on salaries and wages for employed TES contractors: 20% (excluding of SDL, UIF and WCA) Recruitment (fee subject to the Recruitment Service Level Agreement): 20% MECS Growth Employee benefit program: R55, R110 or R220 per contractor (please select the minimum value below) R55 R110 R220 No selection has been made and the employee benefit program will apply to monthly contracts depending on the project and the duration of the project as agreed by and MECS Growth (Pty) Ltd

13 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page HR and IR management and support: Included in Payroll administration: Included in Employees travel expenses: 10% (Cost plus 10%) Employees PPE: 10% (Cost plus 10%) Visa s and work permits: 10% (Cost plus 10%) Medical and emergency evacuation: 10% (Cost plus 10%) Procurement: 10% (Cost plus 10%) All additional services will be priced on application on a project basis 1.6 Rate schedule All contractors rates will be approved prior to the offer of employment being generated and on receipt of a works order from the client.

14 MECS Growth (Pty) Ltd SERVICE SUPPLY AGREEMENT Page 14 SIGNED AT in the presence of the undersigned witnesses. ON THE DAY OF 2014 Signatory for and on behalf of (Company) (Name) Being duly authorised Signature As Witness SIGNED AT in the presence of the undersigned witnesses. ON THE DAY OF 2014 Signatory for and on behalf of MECS Growth (Pty) Ltd (Name) Being duly authorised Signature As Witness