1.1 In these Terms & Conditions, unless the context indicates a contrary intention, the following capitalised words and expressions shall bear the meanings assigned to them here-under and cognate words and expressions shall bear corresponding meanings:
1.1.1 “Agreement” means this set of Terms and Conditions together with its annexures, schedules or appendices, and any amendments or variations hereto or thereto;
1.1.2 “Appointed Representative” means the natural persons appointed or to be appointed by both Parties in this Agreement, executing the duties set out in clause 18 hereto;
1.1.3 “Business Day” means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa;
1.1.4 “CBI: Energy” means the brand under which CBI will take its electrical energy management and metering solutions to market;
1.1.5 “CBI Services” means, collectively, the SEM and other electronic communications and related services provided by CBI to the Subscribers from time to time, which may include the supply of Equipment and/or Installation Equipment;
1.1.6 “Certified” means a specific certification provided by CBI to a natural person employed by the Solution Provider on successful completion of the requisite training and examination process, defined generally in the Solution Provider Programme document, and specifically in the Solution Provider Training and Certification Requirements document as amended from time to time, including re-certification if these requirements change substantially as identified by a major version number change (i.e. from 1.x to 2.x); and “Certification” shall have a corresponding meaning;
1.1.7 “Channel Programme” means the programme developed by CBI that defines systems, processes, business structures and services to be delivered by the Solution Provider to CBI, and to the Subscribers, with specific requirements and definitions contained in the:
• Solution Provider Programme Definition document
• Solution Provider Business Requirements document
• Solution Provider Classification, Fee and Incentives Schedule document
• Solution Provider Services and Service Levels Definition document
• Solution Provider Sales, Installation and Support Manual;
1.1.8 “Confidential Information” means any information regarding a Party or its business or its products and the Services or its marketing practices, accounting methods, pricing, technical knowledge and information, customer base, trade secrets, goodwill and matters which could reasonably be regarded as being confidential to protect the interest of a Party;
1.1.9 “Corporate Identity” means CBI’s IPR, insignia, logos, graphic elements and graphical and content style guide in a form as communicated from time to time by CBI to the Solution Provider, in writing;
1.1.10 “Corrupt Act” means any offence in respect of corruption or corrupt activities contemplated in the Prevention and Combatting of Corrupt Activities Act, 2004 of South Africa;
1.1.11 “Equipment” means, irrespective of who owns or supplies it, the electronic and other equipment deployed on Sites, as manufactured or supplied by CBI through the Solution Provider to the Subscriber, and which is used directly in the provision of the CBI Services, and where applicable in this Agreement, this shall also include Installation Equipment;
1.1.12 “Installation Equipment” means, irrespective of who owns or supplies it, the electronic equipment and software systems provided by CBI for the pur-pose of conducting a pre-installation survey, an installation, modification or commissioning of the Equipment at a Site, including in some cases the software systems that are installed on electronic devices belonging to a Solution Provider.
1.1.13 “Intellectual Property” or “IPR” means any know-how (not in the public domain), invention (whether or not patented), design, trade mark (which shall in respect of only CBI, include the CBI or CBI: Energy logo) or copyright material (whether or not registered), goodwill, processes, process methodology and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such intellectual property, which specifically includes all copyright, design rights and any other proprietary rights in and to any business plans and proposals, business processes and functional and technical specifications and any related material;
1.1.14 “Material Adverse Effect” means a material adverse effect on:
(i) the ability of the Solution Provider to comply with its obligations under this Agreement; and/or
(ii) the Solution Provider’s business, financial situation or condition or assets, considered as a whole, as a result of which it is, in the opinion of CBI, probable that the Solution Provider reasonably will be unable to comply with its material obligations in terms of this Agreement;
1.1.15 “OHSACT” means the Occupational Health and Safety Act, 85 of 1993;
1.1.16 “Personal Information” means information relating to an identifiable, natural or juristic person, including but not limited to, information relating to race, gender, sex, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, religion, belief, disability, language, birth, education, identity number, telephone number, email, postal or street address, biometric information and financial, criminal or employment history as well as correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence.
1.1.17 “POPIA” means the Protection of Personal Information Act, 4 of 2013.
1.1.18 “Process” means under POPIA, any operation or activity, whether automated or not, concerning Personal Information, including: collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation, use, dissemination by means of transmission, distribution or making available in any other form, merging, linking, as well as restriction, degradation, erasure or destruction of information and “Processing” shall be construed accordingly.
1.1.19 “RICA” means the Regulation of Interception of Communications and Provision of Communication related Information Act 70 of 2002;
1.1.20 “SEM” means the variety of solutions comprising sensor and actuation devices manufactured or marketed by CBI that are connected via a data network to a monitoring, management and analytics system provided by CBI to deliver electrical energy management and other capabilities, including integration with third party systems, delivered under the “CBI: Energy” brand;
1.1.21 “Services” means, as the contents dictates, either the CBI Services, or the Solution Provider Services; or collectively the CBI Services and the Solution Provider Services;
1.1.22 “Site/s” means the one or more geographic location/s or premise/s where the CBI and Solution Provider Services are provided to the Subscriber as specified in the relevant Subscriber Agreement;
1.1.23 “Subscriber” means a person or entity with which CBI has concluded a Subscriber Agreement;
1.1.24 “Subscriber Agreement” means the CBI :energy Customer Services Agreement concluded between CBI and the Subscriber in terms whereof the Services are provided to the Subscriber by the Solution Provider and CBI;
1.1.25 “Subscriber Tariffs” means the tariff of charges payable by the Subscriber to CBI, as published and amended from time to time by CBI at its sole discretion;
1.1.26 “Territory” means the Republic of South Africa.
2 SOLUTION PROVIDER’S OBLIGATIONS
The Solution Provider shall:
2.1 do all things necessary to obtain Certification for its employees and (where applicable) its sub-contractors;
provide all required Subscriber documentation to CBI and assist in its Subscriber’s vendor registration process;
2.2 use the CBI tools and methodologies for installations and support as contained in the installer manuals provided by CBI;
refer service requests to the CBI Service Request channels described in the Solution Provider Sales, Installation and Support Manual;
2.3 refer new customers, opportunity leads, and any MACS (“Moves Adds or Changes”) by existing Subscribers to CBI;
use CBI’s Subscriber/ customer management tools;
2.4 follow CBI’s reasonable instructions in implementing, commissioning, maintaining and supporting SEM;
conduct its business with the highest standards of competence and to CBI’s satisfaction and in a manner that always reflects favourably on the CBI and/or Solution Provider Services and the good name, goodwill and reputation of CBI;
2.5 not publish or employ, or cooperate in the publication or employment of, any advertising material, publications, brochures or other printed material relating to CBI or the CBI Services, without the prior written consent of CBI;
not make any incorrect or misleading representations or statements, or any misrepresentations concerning any CBI and/or Solution Provider Services, or attribute of the CBI or Solution Provider Services.
2.6 not (and shall not permit any third party to) reconfigure, decompile, modify, replicate or tamper in any way with any of the Equipment, software systems and/or Solution Provider Services supplied by it at any time;
in the event of any dispute arising between the Solution Provider and a Subscriber in relation to the sale of the CBI and/or Solution Provider Services or Equipment, forthwith inform CBI of the dispute;
2.7 promptly notify CBI of the facts should the Solution Provider believe, in good faith, that a Subscriber has materially breached its Subscriber Agreement;
co-operate with CBI regarding any legal proceedings for which it is deemed necessary by CBI, acting reasonably and on notice, for the legal representative of the Solution Provider or any of its employees to be present;
2.8 advise CBI promptly concerning any important market information that comes to the Solution Provider’s attention with respect to CBI, the Services, CBI’s market position or the continued competitiveness of the Services in the Territory;
assist CBI in providing Subscribers with post-sales support and with marketing and customer relationship management activities.
3 WARRANTIES BY THE SOLUTION PROVIDER
The Solution Provider warrants that it shall:
3.1 use the requisite numbers of qualified and Certified personnel with suitable training, education, experience and skill to render the Solution Provider Services and otherwise perform its obligations under these Terms & Conditions;
use and adopt any standards and processes required by CBI;
3.2 perform its obligations (both to CBI and Subscribers) with promptness and diligence and in a workmanlike manner;
comply with all of its contractual obligations under clause 8.
4 OBLIGATIONS OF CBI
4.1 provide the CBI Services in compliance with applicable law and in conformance with the Subscriber Agreement;
provide access to the Solution Provider with electronic versions of:
4.1.1 such sales and marketing materials pertaining to the Services as may be deemed necessary by CBI from time to time;
the customer prospect qualification, installation and support tools;
4.1.2 billing information;
the Subscriber Tariffs, as determined by CBI from time to time.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 CBI retains all right, title and interest in and to CBI’s Intellectual Property that is used in connection with the Services. It is agreed that part of the Services will comprise of IPR proprietary to third parties, and the relevant third party retains all right, title and interest in and to its Intellectual Property that is used in connection with the Services.
The Solution Provider shall only retain those rights, title and interest in and to the Solution Provider’s pre-existing Intellectual Property therein. Nothing in this Agreement shall give the Solution Provider any rights in respect of CBI’s and/or the third party’s IP and the Solution Provider hereby acknowledges that it shall not acquire any rights in respect thereof and that all such IP is and shall remain vested in CBI and/or the third party.
5.2 CBI retains all right, title and interest in and to the IP in the Equipment and Installation Equipment and all related parts, drawings, specifications, manuals, documents and data. CBI therefore hereby grants to the Solution Provider a temporary, non-transferable, royalty free license to use and install the Equipment solely for the purposes of this Agreement. The Solution Provider shall use the Equipment and Installation Equipment solely for the performance of this Agreement and not for any other purpose whatsoever.
Except as expressly provided in this clause 19, the Solution Provider shall not have any right directly or indirectly to use, copy, reverse engineer or manufacture the Services and/or Equipment or Installation Equipment, or to license, lease, dispose of, distribute, disclose or otherwise exploit any IPR whatsoever of CBI and its licensors, or any part thereof, or allow others to do so. The Solution Provider is strictly prohibited from marketing and selling any equipment or products so developed to any person, unless approved in writing by CBI.
5.3 Should the Solution Provider become aware of any threatened or actual infringement of any IP of CBI and/or a third party, then the Solution Provider shall forthwith inform CBI and (if applicable) the relevant third party accordingly and shall provide such cooperation and assistance as CBI and/or the third party may reasonably require in the enforcement of its rights against any person.
6 DATA PROTECTION / PERSONAL INFORMATION
In performing its obligations under this Agreement, CBI shall:
6.1 comply with the provisions of POPIA, other prevailing privacy and data protection legislation and the Processing of Personal Information;
not Process Personal Information for any purpose other than to perform its obligations under this Agreement;
6.2 only act on the instructions of the Solution Provider in Processing the Personal Information (and for avoidance of doubt, these Terms and Conditions shall constitute such instructions);
not disclose or otherwise make available the Personal Information to any third party other than authorised staff or sub-contractors who require access to such Personal Information strictly on a need to know basis, in order for CBI to carry out its obligations pursuant to this Agreement and ensure that such staff and any other persons that have access to the Personal Information are bound by appropriate and legally binding confidentiality and non-use obligations in relation to the Personal Information;
6.3 take appropriate, reasonable technical and organisational measures to ensure that the integrity and confidentiality of the Personal Information in its possession or under its control is secure and that such Personal Information is protected against accidental loss, destruction, damage, unlawful access or Processing;
immediately notify the Solution Provider in case of possible infringement of POPIA, the terms of this clause or other irregularities by CBI, its staff or any other party acting on behalf of CBI in relation to the Solution Provider’s Personal Information; and
6.4 At the Solution Provider’s option, return or destroy the Personal Information once it is no longer required for the purposes of performing obligations under this Agreement or any directly related purpose.
7 LIMITATION OF LIABILITY
7.1 CBI, its directors, employees and sub-contractors shall not be liable whether in contract, delict or under any other cause of action for:
7.1.1 loss of profit, loss of use, interruption or reduction of operation, loss of data (including the recovery thereof), loss of production, loss of contracts or for any indirect or consequential damage;
death, injury, or damage to property unless caused by CBI’s gross negligence;
7.1.2 any damage arising out of the infringement of any Intellectual Property Rights,
arising out of or in connection with this Agreement.
7.2 CBI’s liability for any act or omission, whether in contract, delict or under any other cause of action, will in no single event or in aggregate exceed a maximum amount of R 500 000-00 (five hundred thousand Rand).
The Solution Provider hereby indemnifies CBI against any claim, suit or proceeding by a third party that may be made against CBI and/or any of its directors, officers, dealers, employees, contractors, holding company, associate company, and/or subsidiaries based on or arising out of:
8.1 the acts or omissions of the Solution Provider in connection with its performance or failure to perform any obligations in terms of this Agreement or any other agreement with a Subscriber or another third party, and any other product or service provided by the Solution Provider to a Subscriber; and
any unauthorised representation or any misrepresentation of fact by the Solution Provider or any director, officer, agent, or employee of the Solution Provider to any third party with respect to one or more Subscribers or the Services.
9 EXCLUSION OF WARRANTY AND REPRESENTATIONS
9.1 Save for those warranties expressly set out herein, the Parties make no representations or warranties whatsoever, whether express or implied.
The CBI Services are provided “voetstoots” without any warranty whatsoever. CBI disclaims all warranties, express, implied, or statutory, to the Solution Provider as to any matter whatsoever, including all implied warranties of merchantability, fitness for a particular purpose and non-infringement of third-party rights.
9.2 No oral or written information or advice given by CBI or its employees or representatives shall create a warranty or in any way increase the scope of CBI’s obligations.
10 FORCE MAJEURE
10.1 Failure to comply with any of the terms and conditions of the Agreement if occasioned by or resulting from an act of nature or public enemy, fire, explosion, earthquake, perils of the sea, 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 orders, demands or regulations, as well as shortages, interruptions, fluctuations or the unavailability of electrical power, water supply or means of communication or any circumstances of like or different nature beyond the reasonable control of the Party so failing (“force majeure”), will not be deemed to be a breach of this Agreement, nor will it subject either Party to any liability to the other.
Should a Party’s performance of an obligation become temporarily impossible owing to force majeure, that Party shall:
10.1.1 as soon as reasonably possible after the force majeure sets in notify the other Party in writing of the incidence of force majeure;
be released from performance or observance of the affected obligation for so long as the force majeure prevails;
10.1.2 use its best endeavours to recommence performance or observance of the affected obligation, to whatever extent reasonably possible, without delay; and
co-operate with the other Party in implementing such contingency measures as the other Party may reasonably require.
10.2 Should the circumstances of force majeure continue for longer than 20 (twenty) Business Days, either Party shall be entitled to terminate the Agreement by written notice to the other Party.
11 INDEPENDENT CONTRACTOR RELATIONSHIP
11.1 The Solution Provider will at all times be an independent contractor to CBI. Nothing contained in this Agreement shall be construed as constituting any form of partnership, limited joint venture, employer/employee, principal/agent, fiduciary or any other relationship between CBI and the Solution Provider other than as set out expressly in this Agreement.
Neither the Solution Provider nor the Solution Provider’s agents or employees will have any express or implied right or authority to act, create obligations or to make unauthorised representations or warranties on behalf of CBI in any way and for any purpose whatsoever.
11.2 The Solution Provider will not, directly or indirectly, make or allow or fail to prevent (insofar as it may be under its control) a representation (in whatever form) to be made, to the effect that it has authority to contractually or otherwise bind or conclude any contract on behalf of CBI, or that it acts as the agent of CBI.
The Solution Provider shall not incur any liability on behalf of CBI or in any way pledge or purport to pledge CBI’s credit.
11.3 The Solution Provider hereby indemnifies and holds CBI harmless in respect of all or any claims brought against CBI, and expenses incurred by CBI as a result of such claims arising in consequence of the Solution Provider’s breach of the provisions of this clause 33.
12 COMPLIANCE WITH LAWS AND ANTI-CORRUPTION
12.1 Each Party shall in all matters arising from or relating to the fulfilment of this Agreement conform at its own expense with all laws and legislation relevant hereto.
The Parties shall not be entitled to claim or receive any benefits or rewards arising from the Agreement, other than specifically provided for in this Agreement.
12.2 Each Party warrants that neither it nor any of its employees, associates or agents have committed, or admitted to, or have been convicted of, any Corrupt Act in relation to the Agreement and that it has ensured that all anti-corruption laws, internal processes and anti-corruption preventative measures have been complied with, prior to signature of this Agreement and will continue to be complied with for the duration hereof.
Failure by a Party to comply with this clause 34 shall constitute a material breach of contract.
13 RESTRICTION CLAUSE
The Solution Provider shall not interfere with a Subscriber or customer or prospective customer who is in the process of buying from or involved in negotiations with CBI or any other solution provider of CBI for the supply of Equipment or Services or equipment or services similar to the Equipment or Services. The Solution Provider shall forthwith inform CBI in writing when a customer requests a quotation for the Equipment or Services directly from the Solution Provider.
14.1 Each Party is an employer in its own right, a specialist in its own field of operations, performs Services using its own employees and/or agents and its activities, methodologies and Services and is not directly supervised by the other Party. Each Party shall accordingly comply with section 37 (2) of OHSACT.
In as far as the installation of Equipment and Services may require the Solution Provider or its employees or agents to enter CBI’s or a customer’s property or Subscriber Site, the Solution Provider shall comply with CBI’s or the customer’s or Subscriber’s Health and Safety requirements and OHSACT, and the Solution Provider shall be liable to CBI for, and hereby indemnifies CBI against, injury or damage to any person or property, caused by or incidental to the negligence or default of the Solution Provider of his aforementioned employees or agents.