Transcription
CONSORTIUM AGREEMENrbetweenLEBONE LITHO PRINTERS (PTY) LTDRegistration Number 2005/038840/07;andNOVUS HOLDINGS I rDRegistration Number 2008/011165/06;antiUTI SA {Pm) LTDRegistration Number 2004/015747/07F OR PRINTING 8 DELIVERY OF SCHOOLBO O K SFOR THE DEPARTMENT OF BASIC EDUCATIONPAGE 1 OF 33
1. D E FINITIONS2. INTRODUCTION3. C O NSORTIUM.4. ACCO U NTING AND PAYMENT5. M A NAGEMENT.6. D U T IES OF THE PARTIES . „., . .„ ., .7. B A NK ACCOUNT,.8. W A RRANTIES AND INDEMNIFICATION.9. I N SURANCE .10. DISPUTE RESOLUTION11. BREACH12. COSTS13. CESSION AND ASSIGNMENT14. CONFIDENTIALITY.15. EXCLUSIVITY AND NON-COMPETITION16. IMPLEMENTATION AND GOOD FAITH.17. RELATIONSHIP OF THE PARTIES.18. BUSINESS ETHICS19. GOVERNING LAW.20. NOTICES AND LEGAL PROCESS21. INTERPRETATION.22. GENERAL AND MISCELLANEOUS„.,22.1 SOLE RECORD OF AGREEMENT.22.2 NO AMENDMENTS EXCEPT IN WRITING.22.3 WAIVERS .22.4 SURVIVAL OF OBLIGATIONS22.5 APPROVALS AND CONSENTS.PAGE 2 OF 33. 7. 810. 1 1.14. . 1 5.15.16.16.1820.2020222425252?2729313131323232
CONSORTIUM AGREEMENTbetweenLEBONE LITHO PRINTERS (PTY) LTDandNOVUS HOLDINGS LTDandUTI SA {PTY) LTD1.OEFI N I TIONSU nless otherwise stated, o rt h e c o n text o therwise requires, th e w o rds a n dexpressions listed below shall bear the meanings ascribed to them:1.1Aff i l iates —any company which, whether directly or indirectly, Controls or isControlled by or is under common Control by any of the Parties to thisAgreement referred to in this Agreement, as the case may be;1.2A g r eementthis— Consortium agreement together with any appendiceshereto;1.3Bus i n ess —the business of t he C o nsortium, being that of p r inting andsupplying theD e liverables to t h e D e partment of B a sic E d ucation inaccordance with the terms and conditions of the Contract;1.4 b u siness day —any day of the week except Saturdays, Sundays and anyMy documents/Agreements/Consortium 20 Hovemtrer 20)S
public holiday in the Republic of South Africa;1.5Conf i d ential Information —shall include all i n formationo wned by t h eParties and disclosed to the other Parties in terms of the provisions of thisAgreement, which shall include but shall not be limited to:1.5.1 i nformation relating to the commercial and financial activities of theParties, which will include but will not be limited to legal, financial,contractual or commercial arrangements between the Parties andtheir customers or third parties;1.5.2 confidential information and details regarding current or prospectivecustomers, suppliers, commercial associates and other parties withwhom the Parties enjoy a commercial relationship;1.5.3 p roposed,im p e nding oractu a lcom m e rcial tr a n sactions,arrangements, ventures, agreements and opportunities which are ofa confidential or secret nature;1.5.4 know-how, ideas, trade secrets, plans, diagrams, drawings, designsand processes, including material compositions, warehousing anddistribution pricing, distribution schedule, timetables, routes and routestructure, formulae, f inancial results an dlocations, training and human resourcesf i n ancial p rojections,management,drawings,specifications, client lists and details, computer programmes and thelike relating to the Parties;1 5.5 descriptions o ft h e P a r ties' corporate structure, shareholdings,franchise and/or gain sharing arrangements, proprietary debtfinancing s tructures, p roprietary p r eference-share f inancingstructures, trade mark and intellectual property valuation structures,or any other industry specific or proprietary intellectual property;1.5.6 any written information which is labelled "confidential" or "proprietary"before it is disclosed to any Party; and1.5.7 any oral information which is preceded by a statement relating tobusiness methods, business reports, studies and or documentationthat is intended to be confidential and is tater reduced to writing byMr documentr/Aereernents/Consortium c0 rrovemtser 2is15
any Party and delivered to the other Parties within 30 days of oraldisclosure thereof;1,6Con t r act — the Contract/s to be concluded between the Consortium and theDepartment of Basic Education for the Deliverables that will or might beawardedt o t h e C o n sortium, as a c o n sequence of th e C o nsortium'sresponse to the current tender RT22-2016 of the Department of BasicEducation in which the Consortium participates for the printing and deliveryof the Deliverables, including any future tenders submitted to the Departmentof Basic Education in respect of schoolbooks and/or materials to be printedand furnished by the Consortium to the Department of Basic Educationr esulting in the e xtension or renewal of th e Contract, as well a sanyexpansion thereto and/or including a new contract in relation to the printingand delivery of schoolbooks and/or materials, which the Parties contemplatea nd agree shall include SCHOOL YEARS 2017, 2018. 2019, an difextended, 2020 and 2021;1.7Co n t r o l — in relation to a company means:1.7.1 the beneficial ownership, directly or indirectly (whether through theholding of voting shares in a chain of subsidiaries or otherwise) ofmore than 50% of the economic benefit of that company; and1.7.2 the benefIcial ownership, directly or indirectly (whether through theholding of voting shares in a chain of subsidiaries or otherwise) ofmore than 50% of the voting shares of that company; or1.7.3 the right, directly or indirectly (through the holding of voting shares ina chain of subsidiaries or otherwise) to exercise more than half thevoting rights in respect of the issued shares of that company; or1.7 4 the power, directly or indirectly (through the holding of voting sharesin a chain of subsidiaries or otherwise) to appoint, and remove, themajority of the board of directors of that company; andthe words "Controls", "Controlled" and "Controlling" shall have um 1 0 November2015
1.8Con s o rtium — the Consortium c reated by t h i s A g reement an d a n yagreements supplemental to it;1.9Del i v erables —the schoolbooks and materials to be printed and furnished byt he Consortium to the Department of Basic Education in terms of t h eContract, subject to the terms of the Agreement;1.10D e p artment of Basic Education or DBE —the Department of Education ofthe Republic of South Africa, whether the Department of Basic or HigherEducation;111D i s t ribution Centre —the distribution centre referred to in clause 3.4,5below, situated on the Effective Date at 5 aC o mbrinck Street, Alrode,Alberton, Gauteng or such other location agreed between the Parties inwriting;1.12Ef fe c tive Date —the date of signature of this Agreement by the Party lastsigning;1.13Le b o ne L i t ho —L ebone Litho P r i nters ( P t y) L t d , acomp a ny d u l yincorporated and registered with limited liability in accordance with thecompany laws of th eR epublic of S outh Africa, Registration Number2005/038&40/07;1,14Ma n a gement Committee —the body established in terms of this Agreementto manage all aspects of the work of the Consortium in securing andexecuting the Contract and carrying out the Business;1.15 Member —a member of the Management Committee;1.16No v u s H o l dings or N o v us — Novus Holdings Ltd, a company dulyincorporated and registered with limited liability in accordance with thecompany laws of th e2008/011165/06;Ms stetrrment /Agreemente/Consortium 20 Netrember 2015R epublic of S o uth Africa, Registration Number
1.17 Parties —Lebone Litho, Novus and UTi and "Party"shall mean either one ofthem, as the context requires.1.18P r i nting Work —all printing work in respect of the Deliverables;1.19Sc h e dule -the schedule/s, as referred to in the Agreement, in respect ofand applicable to any costing and pricing in relation to the Deliverables andthe allocations between the Parties, being supplemental to this Agreementfor purposes of the Contract and all being part of the Confidential Informationnot for third party scrutiny and contained in a such Schedule with referenceto this Agreement — in respect of the aforesaid Schedule/s for each suchcosting and pricing, the Parties shall sign a Schedule marked "Schedule-Consortium" and bearing a reference to this Agreement, which may at anytime after the Effective Date, whether as a new Schedule or in substitutionfor or in addition to an existing Schedule, be signed by the Parties, eachSchedule to be dated and numbered consecutively;1.20UT i — Uti SA (Pty) Ltd, a company duly incorporated and registered withlimited liability in accordance with the company laws of the Republic of SouthAfrica, Registration Number 2004/015747/071.21VA T —value added tax levied in terms of the Value Added Tax Act, No 89 of1991, as amended.INTRODUCTION2.1The P a rties formed the Consortium under the title of Lebone Novus UTi forpurposes of the Contract, on the terms and conditions set out in thisAgreement.2.2It is a cknowledged and agreed by the Parties, as regards the Consortium,that:2.2.1 Lebone Litho possesses Information Technology/Data Management/Call Centre/Project Management /Enterprise Management Systemand certain printing capacity;2.2.2 Novus through its Affiliates possesses the necessary operationalcapacity to print the Deliverables and the Parties wish the ConsortiumMy documents/Agreements/ Consortium 20 November 2015
i)to be engaged in ail such printing work, for the joint benefit of theParties;2.2.3 UT i possesses the necessary operational capacity to receive/store,pick and pack and distribute all the Deliverables in accordance to theTerms of Reference ("the TORn) of the Contract.2.3The P a rties record the terms and conditions of their agreement as is set outherein.3,CONSO R T IUM3.1 EstablishmentThe Parties agree to establish the Consortium for purposes of the Contractwith the Department of Basic Education (if and when and to the extentawarded to the Consortium from time to time) for the printing, receiving,storing, picking and packing and distribution of the Deliverables, and to attendto the tasks pertaining to the Contract, as an unincorporated association onthe terms and conditions recorded in this Agreement and guided by theContract.3.2P u r pose of the Consortium3.2.1The sole purpose of the Consortium shall be to secure andexecute the printing, receipt, storage, picking and packing anddistribution of the Deliverables, pertaining to the Contract asspecified in the tender document for the Contract, and anyfurther tender documentation in relation to a further Contract/s,for the benefit of the Parties and the general nature of itsbusiness shall be the operation of the Business.3.2.2The liaison and submission of the Contract to DBE shall be theresponsibility of Lebone Litho, provided that it shall be done atall times in prior consultation with Novus and UTi {see c/ause3.4. 3 be/ow).My documents/Agreements/Consoniurn 20 Ncuemtter 201g
3.3Dur a t ion3.3.1 The Consortium shall commence on the Effective Date.3.3.2 l t is recorded that if the Consortium is awarded the Contract, then theContract will be executed and finalised in accordance with these termsand conditions in conjunction with any applicable Schedule.3.3,3 I f the Consortium is awarded any further Contracts by the Departmentof Basic Education (as defined), the Consortium shali automaticallycontinue for the duration of such further Contract/s, subject to clause3.3.4 below.3.3.4 A f ter execution and completion of the C ontract pertaining to theOeliverables, the Consortium shall continue indefinitely in respect ofthe Printing Work and delivery of the Deliverables, until terminated inwriting by either Party with 3 (three) months prior written notice.3.4Pri n t ing Work in terms of the Contract and outsourced services3.4.1 l n a ccordance with the understanding set out in clause 2 above, butsubject to 3.4.2 below, Novus through its Affiliates shall act as apreferred service provider in respect of all the Printing Work.3.4.2 Th e Printing Work shall be conducted by Novus through its Affiliates atarms' length terms and conditions and prices which may reasonably beexpected from time to time in the printing industry in general. Thepricing structure shall be as agreed from time to time in terms of theContract.3 .4.3 L e boneL i tho s h all b e t h e l e a ding e n tity r e sponsible for t h eprocurement and correction of data/project management /direct liaisonwith the Department of Basic Education and responsible tor invoicingof the distribution to the DBE. Lebone Litho will be the signatory to theContract between the Consortium and the Department of BasicEducation, subject to the prior written approval of the SLA is obtainedin consultation with Novus and UTi.34.4L e b one Litho will ensure that the order for all the Printing Work isplaced with Novus, and that the Contract will contain full particulars inMydorumootvjAttroomootvjComortiom20 t t o vvmtmrl015
respect of the precise description of the matter to be printed and thespecifications thereof, the total print order and the dates from time totime on which the Deliverables is required for dispatch.3.4.5 The picking and packing of the Deliverables as part of the warehousingand distribution function in relation thereto shall be conducted at theDistribution Centre in Gauteng {or such other place agreed from time totime by the Management Committee), and shall be operated by and bethe primary responsibility of UTi;3.4.6 The Parties have agreed, with reference to Deliverables to be printed,that Lebone Litho will, subject to them having the proven print capacityand/or capability to deliver the print work on time within the requiredtime frames, be granted the opportunity to print a portion of this workby mutual agreement between Novus and Lebone Litho. For the timebeing that Lebone Litho does not have the print capacity and/orcapability to deliver these Deiiverables on time themselves or in theabsence of the aforesaid mutual agreement, the printing thereof willthen be done byNovus and its Associates;3.4.7 The cost of transportation incurred by Novus Holdings to transport theDeliverables from Paarl Media Pearl and/or Paarl Media Cape and/orPaarl Media Gauteng and/or Paarl Media KZN, to the DistributionCentre shall form part of the printing costs of Novus in respect of theDeliverables.ACCOUNTING AND PAYMENT4.1Nov u s shall, or undertake to procure that its Associates will, provide LeboneLitho with copies of the written invoices in executing ali the Printing Work bynot later than the 15" {fifteenth) day of each month following the month inwhich the Deliverables were delivered to the Distribution Centre by Novus.4 .2Any a m o unt due t o N o vus shall b e i n voiced by N ovus directly to t h eDepartment of Education in accordance with the Contract, and Novus shall beentitled to collect and receive payment in full in accordance with 4.3 below.Mv documents/agreements/Consortium t0 November 202b
4.3A ll a m ounts due relating to the Printing Work shall be paid into the esignatedNovus bank account.Ail other amounts (save for the Printing Work) due by the Department ofEducation in accordance with the Contract shall be invoiced by l ebone Lithoto the DBE, and Lebone Litho shall be entitled and obliged to collect andreceive payme t thereof in full. All amounts thus paid shall b pi d i nto thbank account.4.5UTi shall, or undertake to procure that its Affiliates, inter alia for purposes fclause 4.4 above, provide Lebone Litho with copies of the written invoices inexecuting the warehousing, delivery and distribution of the Deliverables by notlater than the 15th (fifteenth) day of each month following the month in whichthe Deliverables in question were delivered and distributed by UTi to thevarious delivery addresses in accordance with the TOR.4.6A ll a m ounts payable to UTi relating to the warehousing and distribution costsas set out in the Schedules from time to time will be invoiced by UTi to LeboneLitho and paid by Lebone Litho into the designated UTi bank account, on thepayment terms agreed in the Schedule, whether or not Lebone Litho or theConsortium has received funds from DBE or not.4.7Any m a r k-up in respect of the printing of the Printing Work shall accrue toNovus as regards to the printing and to Lebone LithoiUTi as regards thewarehousing and distribution of the Deliverables.4.8The p r icing in respect of the print, pick 8 pack and distribution will be in thetender for purposes of the Contract, and any allocations between the Partiesas regards the aforesaid pricing shall be contained in Schedule(s), mutatismutandis, on the basis set out in clause 1.19 above.MANAGEMENT51Exc e p t a s o t herwise provided in t his A g reement, all matters of p o licyconcerning the activities of the Consortium pursuant to this Agreement andthe Business of the Consortium, shall be governed by decisions of theManagement Committee.Maducurruntr/Aaraamanrr/Cunaurlium20 Ncvambar 2015
5.2The M a nagement Committee shall consist of 6 (six) Members, namelyKeithMichael and Kosta Diamantakosappointed by Lebone Litho, Keith Yroonand Mike Ehret appointed by Novus and Greg Saffy and Gerhard Mullerappointed by UTi.5.3Mem b ers may be changed by written notice given by the appointing Party tothe other Parties.5.4In t h e e v ent that a p e rmanent vacancy shall occur on the ManagementCommittee, the Party concerned shall, within 10 (ten) business days of suchoccurrence, appoint a new Member to fifl such vacancy and shall notify theother Parties thereof in writing.5.5The f i rst Members of the Management Committee shall be as set out in 5 2above.5.6Any M e mber shall be permitted to nominate in writing, within 7 (seven) days ofhis or her own appointment, an alternate in the event of him or her beingunable to attend any meeting of the Management Committee.5.7Ea c h P arty shall be deemed to have delegated to their respective Members,or their alternates, full power to transact on their behalf all matters relating tothis Agreement and the business of the Consortium, with the exception of anyreement.amendments to this Ag5.8E a c h Member, or his alternative, shall have 1 (one) vote.5.SMee t i ngs of the Management Committee shall be held in such places and atsuch times as shall from time to t ime be d ecided by th eM anagementCommittee, provided that meetingsshall be held at intervals not exceedingevery 1 (one) month.5.10 All business transacted at the meetings of the Management Committee shallbe recorded in a s uitable minute book to be kept at s uch place as theManagement Committee shall determine. Such minute book shall at all timesb e available for inspection by any Member (or his alternate) or by a n yauthorised representative of any of the Parties.trty doruments/rtgreemenrs/consorbum 20 Nouembe 2tt15
5.11N o t withstanding the provisions of 5.9, each Party shall be entitled to convenea meeting of the Management. Committee at any ti me by giving at least 7(seven) days prior written notice to the other Parties.5.12E a c h Member shall receive at least 7 (seven) days prior written notice of anymeeting of the Management Committee together with an agenda for themeeting, unless the Members agree to a shorter period.5.13 A resolution in writing signed by all the Members and inserted in the minutebook kept in terms of 5.10 shall be valid and effective as if it had been passedat a meeting of the Management Committee duly called and constituted.Such a resolution may consist of several documents of the same form,exchanged by telefax or by other means, each of which is signed by one ormore of the Members in terms of this clause 5.13, and shall be deemed tohave been passed on the date of signature thereof by the last Member of theManagement Committee.anagement5.14 A quorum of any meeting of the MCommittee shall be constitutedby the attendance at the meeting of at least 3 (three) Members, one eachfrom Lebone Litho, Novus and UTi respectively.5.15W h e re possible, ai! decisions of the Management Committee shall be taken byunanimous resolution. I nt h e e vent that the Management Committee isunable to reach a unanimous decision the matter shall be decided by amajority vote of the Members present.5.16I n the event that a quorum is not obtained for any meeting of the ManagementCommittee for which proper notice has been given, the meeting shall beadjourned for at least 5 {five) business days and the Party which called themeeting shall give new notices to the Members of the time and place of thesubsequent meeting. At any such subsequent meeting no quorum limit shallapply notwithstanding the provisions of sub-clause 5.13 and any Member orMembers or t heir alternates present at s uch s ubsequent meeting shallconstitute a quorum.5.17N o r e m uneration shall be p aid t o t h e M e mbers or t h eir alternates forattendance at meetings of the Management Committee. Reasonable traveland accommodation expenses for Members (or their alternates) attendingMy drtcumemr/Agreementr/Corrsortium 20 Stovemtrer 2015
meetings of the Management Committee shall be charged to and paid by theParties themselves.DUTIES OF THE PARTIESThe specific duties to the Consortium of the Parties are:6 .1Nov u s :6.1.1 the printing and production of the Deliverables in accordance with theterms and conditions of the Contract;6.1.2 d e livery of the Deliverables to the Distribution Centre; and6.1.3 the accounting and payment to Lebone Litho of the amounts due andpayable in terms of this Agreement and any Schedule thereto, as andwhen these amounts become due and payable.6.2Leb o n e I itho:6.2.1 the preparation and the submission of any bid from time to time for theContract on behalf of the Consortium, in consultation with Novus andUTi, to the Department of Basic Education; as well as being the leadorganisation for any tender from time to time preceding the Contractandberes p o nsible f o rManagement/CallManagementt heCent r e/Projectinf o r mation T e c h nology/DataMana g emen t/ Ent e r priseSystem in respect of the Contract, submit reports as perthe TOR and submit invoices on behalf of the Consortium to the DBEas set out in clause 4,4 above;6.2.2 a ssisting Novus to collect the invoices due and payable in respect ofthe Printing Work;6.2.3 s hall tirneously procure sign off by DBE of print orders detailing theprecise description of the matter to be printed and the specificationsthereof as well as distribution data per grade, per title, per school, asper timing schedules furnished from time to time by Novus and/or itsAssociates;6.2.4 s hall use its best endeavours to annually secure the appropriate PriceIncrease (hereinafter referred to as nPI") determined in consultationMydnsumenrs/ngreemems/Cnnsnrliurn 20 l nuerneer 2015
between the Parties and to be approved by the Accounting Officer ofthe Department of Basic Education; and6,2.5 s hall pay UTi the a mounts invoiced by UTi for w arehousing anddistribution services timeously, whether or not I ebone Litho has beenpaid by the DBE or not.63UTi:6.3.1 shall attend to the receipt, warehousing, picking and packing of theDeliverables in accordance with the TOR; and6.3.2 shall arrange the logistics in respect of the distribution and delivery ofthe Deliverables from theD istribution Centre to t h e d e stinationsindicated by the Department of Basic Education and in accordancewith the TOR.BANK ACCOUNTThe Parties agree that all payments received from the Department of Basic Educationin respect of the Contract shall be deposited into the respective bank accounts ofNovus and Lebone Litho on the basis set out in clauses 4.3 and 44 respectively,subject to Lebone Litho remaining responsible to pay UYi directly for servicesrendered by UTi, whether the DBE have paid Lebone Litho for such services or not.WARRANTIES AND INDEMNIFICATION8.1The P a r ties warrant that they are duly incorporated companies having allnecessary powers and authorisations to enter into this Agreement and toperform their obligations in terms of this Agreement and to enter any otheragreements which may be required in connection with this Agreement.8.2Nov u s warrants that it will print and produce and invoice the Deliverables tothe Department of B a sic Education in a ccordance with the t e rms a ndconditions and within the timeframes contained in the Contract, subject to printready artwork timeously provided by the Department of Basic Education andthe provisions of clause 6.2.3 above.8,3UTi w a r rants that it will receive, warehouse, pick and pack, deliver anddistribute the Deliverables to the various the destinations indicated by theMS Saromaots/Aarasmsats/coasartsmr 20 Nassmbsr 2015
Department of Basic Education in accordance with the terms and conditionsand within the timeframes contained in the Contract, subject to UTi havingtimeously received full details regarding quantities, contact persons anddelivery schedules in respect of the Deliverables to be delivered to variousdestinations as designated by DBE.8.4Leb o n e Litho warrants that it will properly account for the distribution revenueand related costs in respect of the Deliverables and accordingly invoice theDepartment of Education in accordance with the terms and conditions andwithin the timeframes contained in the Contract and fuifil all its responsibilitiesand duties as set out in this Agreement within the required timeframes andwith the necessary due diligence, skill and expertise.8.5The P a rties respectively warrant in favour of each other that each of themshall perform their duties as set out in clause 6 and in accordance with theterms and conditions and within the timeframes contained in the Contract.8 .6The P a r t ies s p ecifically exclude an y l i ability fo r c l aims i n r e s pect o fconsequential damages arising from this Agreement.9.INSU R A NCEEach Party shail take out and maintain adequate insurance cover to m eet itsobligations under clause 8 above.10.DI SPUTE RESOLUTION10.1S h o uld a dispute arise between the Parties out of or in connection with thisAgreement, including its existence, application, breach, interpretation, validity,termination or cancellation and be unresolved within 48 {forty eight) hoursafter it has arisen, then the dispute shall be referred for joint resolutionbetween the respective Chief Executive Officers of Lebone Litho and Novusand UTI;10.2 S h o uld the dispute not be resolved between the respective Chief ExecutiveOfficers of Lebone Litho and Novus and UTi within 72 (seventy two) hoursafter it has arisen, then either oi Lebone Litho or Novus or UTis h all beentitled to require, by written notice to the other, that the dispute be submittedMe 0uiumente/Agreements/cuneurl um 20 eeuvemuet 2015
sto and decided by arbitration in terms of the Arbitration Act, 1965, of SouthAfrica, subject to the following provisions:10.2.1 the Tribunal shall consist of one arbitrator;10.2.2 the arbitration proceedings shall be in accordance with the formalitiesand(or procedures determined by the arbitrator;10.2.3 the arbitration shall be held in Johannesburg;10.2.4 the language of the arbitration shall be English,10.2.5 the arbitration shall be binding and not be appealable to any Court inany jurisdiction, unless a manifest error in law or on the facts hasoccurred or in case of mala fides of the arbitrator. Any Party mayhowever enters uc h d e c ision i n a n y C o u r t h a v ing c o mpetentjurisdiction;10.2.6 the Parties shall endeavour to ensure that the arbitration is completedwithin 30 (thirty) days after notice requiring the claim to be referred toarbitration is given;10.2.7 the decision of the arbitrator shall be in writing. The arbitrator shall givereasons for his award;10.2.8 the proceedings and decision shall be confidential to the Parties andtheir advisers;10.2.9 the arbitrator shalt be a practicing attorney or advocate of not less than10 (ten) years standing, who, in the absence of agreement reachedbetween the Parties within 14 (fourteen) days of the arbitration beingdemanded, shall b ea p p ointed b y t h e C h a irperson o r a c t ingChairperson of the Gauteng Law Council.10.3 T h i s arbitration clause shall not preclude a Party from seeking urgent relief ina Court of appropriate jurisdiction, where grounds for urgency exist, nor shallthis arbitration clause preclude any party from claiming by way of courtsummons, from any other party, a liquidated amount owing to that Party.My dosoments/Attteemeeys/Consorttum 2D Novemtser 2015
I!11.B REA C H11.1 If a Party (" Defaulting Party" ) commits any breach of this Agreement andfails to remedy such breach within? (seven) business days (" Notice Period" )of written notice from anyone of the other Parties requiring the breach to beremedied, then the other Parties to the Agreementcollectivelyreferred to as(the "Aggrieved Party" )will be entitled, at its/their option11.1.1 to claim immediate specific performance of all or any of the DefaultingParty's obligations under this Agreement, with or without claimingd amages, whether o rn o t s u c h o b l igation ha s f a l len d u e f o rperformance [ and to require the Defaulting Party to provide security tothe satisfaction of th e A g grieved Party for the D efaulting Party' sobligations]; or11.1.2 t o cancel this Agreement, with or without claiming damages, in whichcase written notice of the cancellation shall be given to the DefaultingParty, and the cancellation shall take eftect on the giving of the notice.Neither Party shall be entitled to cancel this Agreement unless thebreach is a material breach. A breach wiII be deemed to be a materialbreach if11.1.2.1 it is capable of being remedied, but is not so remedied withinthe Notice Period; or11.1.2.2 it is incapable of being remedied and payment in money willcompensate for such breach but such payment is not madewithin the Notice Period.11.2T h e A g grieved Party's remedies in terms of t his clause 11 are w ithoutprejudice to a
3.3.1 The Consortium shall commence on the Effective Date. 3.3.2 lt is recorded that if the Consortium is awarded the Contract, then the Contract will be executed and finalised in accordance with these terms and conditions in conjunction with any applicable Schedule. 3.3,3 If the Consortium is awarded any further Contracts by the Department
