Solution Provider Agreement – Further Ts&Cs
These further Ts & Cs form part of the CBI: ENERGY AUTHORISED SOLUTION PROVIDER AGREEMENT (OEM and Channel) as described in Paragraph 1 “Applicability, Precedence”.
Document Date: 1 June 2023
9 THE T&Cs AND APPLICABILITY
9.1 The following general terms and conditions (T&Cs) included in these clauses 9 to 16 form part of CBI :energy’s Authorised Solution Provider Agreement. Clauses 1 to 8 of the Authorised Solution Provider Agreement as well as the Annexures thereto are contained in a separate document signed by the Parties.
9.2 Any capitalised words and expressions used in the following clauses have already been defined in clause 2 of the Agreement.
10 EMPLOYEES AND SUB-CONTRACTORS
10.1 The SP shall always employ only Certified, competent and reliable employees and agents. CBI may at any time (on reasonable grounds) object in writing to any person employed by the SP executing any part of this Agreement, and the SP shall immediately replace the person so objected to.
10.2 The SP may not sub-contract, cede, assign or delegate, in any way, any or all of its obligations under this Agreement to any third party or another solution provider without the prior written consent of CBI and the Subscriber. If so agreed to in writing, the third party or other solution provider shall only use employees that are Certified.
10.3 In the event that the SP is permitted to sub-contract etc. to another solution provider, all fees, expenses and commissions payable to the sub-contractor, third party or other solution provider arising from the supply of the SP Services, shall be negotiated between the SP and that sub-contractor on a case-by-case basis and shall be borne and paid by the SP out of its SP Fees. Furthermore, the SP shall assume all risk and responsibility for the payment of all such fees.
10.4 The SP shall under no circumstances whatsoever be entitled to claim compensation from CBI as a direct or indirect result of any dispute between the SP and its sub-contractor in connection with fees paid or payable by the SP to such sub-contractor.
11 INTELLECTUAL PROPERTY RIGHTS & CORPORATE IDENTITY
11.1 CBI retains all right, title and interest in and to CBI’s Intellectual Property Rights that vest and/or is used in connection with the CBI Equipment, Installation Equipment, drawings, specifications, manuals, documents, data and services.
11.2 The SP shall only retain those rights, title and interest in and to the SP’s pre-existing IPR therein. Nothing in this Agreement shall give the SP any rights in respect of CBI’s and/or the third party’s IPR and the SP hereby acknowledges that it shall not acquire any rights in respect thereof and that all such IPR is and shall remain vested in CBI and/or the third party.
11.3 CBI therefore hereby grants to the SP a temporary, non-exclusive, non-transferable, royalty-free license to use and install the Equipment solely for the purposes of this Agreement, as well as to use the Corporate Identity for purposes of rendering the SP Services. The SP shall use the Equipment and Installation Equipment solely for the performance of this Agreement and not for any other purpose whatsoever.
11.4 Except as expressly provided in this clause 11, the SP shall not have any right directly or indirectly to use, copy, reverse engineer or manufacture the Equipment or Installation Equipment or the SP Services, CBI Services or other services, 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 SP is strictly prohibited from marketing and selling any equipment or products so developed to any person, unless approved in writing by CBI.
11.5 Should the SP become aware of any threatened or actual infringement of any IPR of CBI and/or a third party, then the SP 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.
11.6 The SP shall, to the reasonable satisfaction of CBI, include the Corporate Identity in all of its documentation pertaining to the SP Services, such as sales presentation(s), brochures and related documentation.
11.7 Save as provided in this clause 11, CBI grants no rights in any IPR, Corporate Identity, trade name, logo, business name or goodwill of CBI. The SP agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any IPR.
12.1 Each Party (the “Disclosing Party”) may disclose the CI deemed necessary or desirable under this Agreement. Such CI shall be treated with at least commercially reasonable confidentiality efforts and caution by the Party to whom it is disclosed (the “Receiving Party”).
12.2 The Receiving Party shall not disclose any CI, other than as expressly authorised by the Disclosing Party in writing, to any person except to employees of the Receiving Party who are bound by confidentiality undertakings at least as restrictive as those contained in this Agreement. The Receiving Party shall be liable to the Disclosing Party for any breach of confidentiality by an employee, or former employee of the Receiving Party and hereby indemnifies and agrees to hold the Disclosing Party harmless against any loss or damage suffered as a result of such breach.
12.3 Nothing in this clause 12 shall restrict the rights of either Party to use such information or documents for the purposes of legal enforcement of this Agreement in accordance with its terms.
12.4 The SP shall upon expiration or termination of this Agreement for whatsoever reason:
12.4.1 forthwith return to CBI all CI in the possession of the SP and any of its employees and shall not retain any copy of such material; and
12.4.2 not use or permit to be used any CI of CBI.
13 TERMINATION: SUMMARY AND FOR BREACH, EFFECT
13.1 Notwithstanding anything else contained in this Agreement and without prejudice to any other remedies which it may have, either Party has the right at any time, and by giving written notice to the other, to without penalty or liability, terminate this Agreement with immediate effect in the event that the other Party commits an act of insolvency or is placed under curatorship, provisional or final liquidation or sequestration, business rescue, or other similar disability.
13.2 CBI may terminate this Agreement with immediate effect and without penalty or liability if the SP:
13.2.1 without written permission markets, sells, resells or distributes any equipment or products and/or services which compete with the SP Services and/or CBI’s services and the Equipment; or
13.2.2 does anything, in the reasonable opinion of CBI, to tarnish or diminish CBI’s reputation in the market.
13.3 If any Party breaches any material provision or term of this Agreement and fails to remedy such breach within 10 (ten) Business Days of receipt of written notice requiring it to do so (or if it is not reasonably possible to remedy the breach within 10 (ten) Business Days, within such further period as may be reasonable in the circumstances) from the other Party (“the Aggrieved Party”), then the Aggrieved Party shall be entitled without further notice to cancel this Agreement.
13.4 The right to cancel this Agreement is in addition to any other remedy available to the Aggrieved Party at law or under this Agreement, including claiming specific performance, or obtaining an interdict, or claiming damages.
13.5 On termination of this Agreement for any reason, the SP shall stop providing the SP Services involving the CBI solution or Equipment, and stop describing itself as a CBI solution provider. The SP shall return to CBI any hardware Equipment, Installation Equipment and marketing materials, or dispose of them as instructed by CBI.
14 LIMITATION OF LIABILITY & INDEMNITY
14.1 CBI, its directors, employees and sub-contractors shall not be liable for 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.
14.2 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).
14.3 The SP indemnifies CBI against any claims or proceeding by a third party that may be made against CBI and its related parties (directors, staff, contractors, holding or associated companies) arising out of the acts or omissions of the SP in connection with its performance or failure to perform its obligations in terms of this Agreement from the SP Services or other services to a Customer/Subscriber, or where the SP misrepresents or makes unauthorised representations to any other party.
14.4 Both CBI and the SP provide no warranties other than those expressly described in this Agreement.
15 LEGAL NOTICES, DISPUTE RESOLUTION & GOVERNING LAW
15.1 CBI chooses 1 Tripswitch Drive, Elandsfontein, Gauteng Province as its physical address where all legal notices and process must be served. The SP chooses the physical address as indicated in its onboarding documents as the address where all legal notices and process must be served. Any such notice must be hand delivered the other Party’s address chosen in this clause, and may not be emailed. Email may however be used for operational matters.
15.2 If there is any disagreement or claim between the Parties, senior management of each side must attempt to negotiate a settlement within 10 (ten) Business Days, failing which the matter may be arbitrated under the rules of the Arbitration Foundation of South Africa in Gauteng, South Africa.
15.3 Only the Parties and their legal representatives or persons agreed to, shall attend the arbitration proceedings. The decision of the arbitrator(s) may be made an order of court.
15.4 This Agreement shall be governed by and interpreted according to the laws of South Africa.
15.5 The provisions of clause 15 shall not in any way preclude a Party from access to a court of law for urgent relief in the form of an interdict, or for an order for specific performance.
16 FURTHER GENERAL PROVISIONS
16.1 The SP is an independent contractor to CBI, and not a partner or employer/employee of CBI. The SP may not bind CBI in a contract with another party or incur any liability on behalf of CBI. The SP indemnifies CBI from any claims should it breach this provision.
16.2 If either Party is prevented or fails to adhere to this Agreement, and this is caused by any circumstances beyond the reasonable control of the Party so failing (“force majeure”), it will not be deemed to be a breach of this Agreement, or make that Party liable to the other. The Parties will be released from performing the contractual obligation for so long as the force majeure prevails; Should force majeure continue for longer than 20 (twenty) Business Days, either Party may terminate the Agreement by written notice to the other Party.
16.3 CBI and the SP shall pay their own costs associated with putting in place and abiding by this Agreement, shall comply with all relevant laws, and shall not commit any corrupt act.
16.4 The Solution Provider will not interfere with a Customer engaging with CBI or other solution providers of CBI.
16.5 No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless reduced to writing and signed by the Parties.
16.6 Each Party shall comply with the relevant laws regarding Occupational Health and Safety, both at CBI’s premises or at Sites.