SLA TERMS & CONDITIONS

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TENTHOUSE® STRUCTURES SERVICE LEVEL AGREEMENT STANDARD TERMS AND CONDITIONS

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1    INTERPRETATION

1.1    In this Agreement, unless inconsistent with or otherwise indicated by the context –

 

1.1.1    “Agreement” means the agreement comprising the Schedule, these Standard Terms and Conditions and all annexures hereto;

 

1.1.2    “Business Day” means any day that is not a Saturday, Sunday or South African or Singaporean public holiday;

 

1.1.3    “Client” means the Client as referred to in paragraph 2 of the Schedule and, in as far as it may be applicable, its subsidiaries and affiliates;

 

1.1.4    “Client Components” means the materials and equipment that are required to be supplied by the Client for the purpose of completion of the Project, excluding the Supplied Components, as supplied by Tenthouse;

 

1.1.5    “Commencement Date” upon signature of this Agreement by both Parties and “Payment 1” of the Quotation, whichever is the later;

 

1.1.6    “Company” means Tenthouse Structures (PTY) LTD or Tenthouse Structures (PTE) LTD as more fully described in paragraph 1 of the Agreement Schedule;

 

1.1.7    “Company Representative” means the person as set out in paragraph 1.5 of the Agreement Schedule;

 

1.1.8    “Confidential Information” means all information or data disclosed in writing, orally or by any other means by Tenthouse to the Client and shall include but not be limited to any technical, commercial or scientific information relating to the Supplied Components, Intellectual Property, Clients and business affairs of Tenthouse;

1.1.9    “Contract Price” means the total amount payable by the Client to Tenthouse for the Supplied Components, as set out in the Quotation, which price shall exclude withholding Tax, VAT, GST, unless specifically agreed by Tenthouse in writing to be included;

 

1.1.10    “Contract Value” means the Contract Price, duly increased in accordance with any Variation in accordance with the terms of this Agreement. For the avoidance of doubt, the Contract Value will be the Contract Price plus the total value of all Variations up to and including the point in time when the Contract Value is being considered;

 

1.1.11    “Copyright” means the copyright held by Tenthouse over any and all designs presented to the Client in the course and scope of this Agreement;

 

1.1.12    “Delivery” means receipt of the Supplied Components by an authorised representative of the Client at the Point of Delivery, in accordance with the terms of clause 4 below;

 

1.1.13    “Final Completion” means the stage of completion of the Services where the Final Structures are free of all defects, in accordance with clause 9 below;

 

1.1.14    “Final Structure” means the tents and/or tensile structures and/or other building structures and systems, and/or other fittings, fixtures and finishes supplied and installed by Tenthouse Structures being the end-product upon completion of the Project in accordance with the terms of this Agreement, and as specified in the Quotation;

 

1.1.15    “Force Majeure” means an event beyond the control of the Party concerned, that is not caused by the fault of such party and could not reasonably have been foreseen, avoided or overcome by it, that renders such Party unable to perform its obligations in terms of this Agreement, in accordance with clause 18 below;

 

1.1.16    “GST” means goods and services Tax, payable in terms of the GST Act;

 

1.1.17    “GST Act” means the Good and Services Tax Act 1993;

 

1.1.18    “Intellectual Property” means all present and future designs, know-how, trademarks, trade names, brand names, signs, symbols, trade secrets, Copyright and other intellectual property of Tenthouse relating to the Services or Supplied Components (whether held under license or otherwise), and any derivatives, modifications or adaptations thereof;

 

1.1.19    “Party/ies” means Tenthouse or the Client, or both of them, as the context dictates;

 

1.1.20    “Point of Delivery” means the point of delivery set out in paragraph 4 of the Schedule;

 

1.1.21    “Practical Completion” means the date on which the Final Structure is completed to such a stage that would enable the Client to use the Final Structure for the purpose for which it is intended, excluding any minor snags which would be remedied prior to Final Completion, 

 

1.1.22    “Principal Agent” means the primary agent duly appointed and authorised by the Client to oversee and sign-off on the Services by Tenthouse and the services by all direct contractors of the Client for the Project on behalf of the Client;

 

1.1.23    “Project” means the works in relation to which the Client has appointed the Company, as set out in in the Quotation, Annexure 2, to be completed at the Site;

 

1.1.24    “Project Programme” means the programme which sets out the critical path, including timelines, payment milestones and further deliverables in relation to the rendering of the Services for the Project;

 

1.1.25    “Quotation” means the written quotation provided by Tenthouse to the Client;

 

1.1.26    “Schedule” means the information schedule to which these standard terms and conditions are annexed;

 

1.1.27    “Services” means the services to be rendered by Tenthouse to the Client in terms of this Agreement, and as further set out in the Quotation;

 

1.1.28    “Signature Date” means the date of signature of this Agreement by the Party signing last in time;

 

1.1.29    “Site” means the site described in paragraph 5 of the Schedule;

 

1.1.30    “Supervision” means the instruction and oversight of the installation of the Supplied Components, as required for the Project, as set out in the Quotation;

 

1.1.31    “Supplied Components” means the materials and equipment that are required to be designed, and/or manufactured and/or procured, packaged and delivered to the Client by Tenthouse as set out in the Quotation;

 

1.1.32    “Tenthouse” means Tenthouse Structures (PTY) Ltd or Tenthouse Structures (PTE) Ltd, as described in paragraph 1 of the Schedule;

 

1.1.33    “Variation” means the variation of any of the Services, or any part thereof, including any variation of the Supplied Components in accordance with clause 6 below;

 

1.1.34    VAT” means Value-Added Tax, payable in terms of the VAT Act;

 

1.1.35    “VAT Act” means the Value-Added Tax, No. 89 of 1991, as amended;

 

1.1.36    “Workmen” means the workers appointed by or on behalf of the Client for the purposes of the completion of the Project;

 

1.1.37    words importing the singular shall include the plural and vice versa;

 

1.1.38    words importing natural persons includes legal persons and partnerships and vice versa;

 

1.1.39    words importing one gender includes the other genders;

 

1.1.40    any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time;

 

1.1.41    where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

 

1.2    The clause headings in this Agreement have been inserted for reference purposes only and shall not affect the interpretation of any provision of this Agreement.

 

1.3    Words and expressions defined in any sub-clause shall, for the purpose of the clause of which the sub-clause forms part, bear the meaning assigned to such words and expressions in that sub-clause.

 

1.4    If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to it as if it were a substantive clause in the body of the Agreement, notwithstanding that it is only contained in this interpretation clause.

 

1.5    If any period is referred to in this Agreement by way of reference to a number of days, the days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the day shall be the next succeeding Business Day. 

 

1.6    The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.

 

1.7    This Agreement shall be governed by and construed and interpreted in accordance with the law of South Africa. 

 

1.8    Expressions defined in this Agreement shall bear the same meanings in any annexure hereto which does not contain its own definitions.

 

2    APPOINTMENT AND DURATION

 

2.1    The Client hereby appoints Tenthouse to render the Services and provide the Supplied Components in accordance with the terms of this Agreement, which appointment Tenthouse accepts, in accordance with the terms of this Agreement  with effect from the Commencement Date and shall terminate once all Parties have complied with all their obligations in terms hereof, unless terminated earlier in accordance with the provisions of this Agreement.

 

2.2    Notwithstanding the termination of this Agreement or anything to the contrary contained in this Agreement, the provisions of clauses 1, 14, 15 to 17 and 0 to 22 will survive any termination and or cancellation of this Agreement.

 

2.3    The legal relationship between the Client and Tenthouse shall, notwithstanding any provisions to the contrary in this Agreement, be that as between principal and independent contractor, and the appointment of Tenthouse in terms hereof shall not be construed as creating a partnership, agency, or joint venture between the Parties.

 

3    QUOTATION

 

3.1    Tenthouse has presented the Client with the Quotation for the Services and Supplied Components, which the Client has accepted, subject to the terms of this Agreement.

 

3.2    Tenthouse will render the Services and supply the Supplied Components to the Client in accordance with the Quotation, Annexure 2, and the terms of this Agreement.

 

3.3    The terms and conditions set out in the Quotation form part of this Agreement and shall apply together with this Agreement and its other Annexures. In the unlikely event of a direct conflict between the provisions of this Agreement and those contained in the Quotation, the provisions of this Agreement shall prevail, unless the Parties have expressly agreed otherwise in writing.  
Additional or supplementary terms contained in any other quotation (such as for a Variation Order), or any other written agreement signed by both Parties shall be binding to the extent that they do not conflict with this Agreement. Where a Variation Order or other written amendment expressly modifies or overrides provisions of this Agreement or the Quotation (including payment terms), such expressly agreed terms shall prevail for that Variation Order or amendment only.  
No pre-printed or standard terms appearing on any Party’s purchase order, invoice, or other administrative document shall override this Agreement unless expressly agreed to in writing by both Parties.

 

4    DELIVERY

 

4.1    Tenthouse will provide the Client with a written notice with supporting photographic record confirming the relevant Supplied Component is ready for Delivery within 10 (ten) Business Days of the completion of the manufacturing of the relevant Supplied Component.

 

4.2    Tenthouse will affect Delivery of the Supplied Component, or the relevant parts thereof, on or before the scheduled dates of delivery, as set out in Project Programme.

 

4.3    The Client shall take delivery of the Supplied Component, or the relevant parts thereof, at the Point of Delivery, in accordance with the Project Programme, or on such terms as are otherwise agreed to between the Parties in writing and set out in the Quotation from time to time.

 

4.4    The Client shall ensure that its authorised representative is available to accept Delivery of the Supplied Components at the Point of Delivery. The Client’s authorised representative shall inspect the Supplied Component at the Point of Delivery. Once satisfied that the Supplied Components have been delivered in accordance with the shipping manifest and free of any transit damages in so far as it can reasonably assess without opening all the packages, the Client’s authorised representative must, within 48 (forty-eight) hours of Delivery, issue Tenthouse with a certificate of delivery. Should the Client’s authorised representative fail to provide the certificate of delivery timeously, it will be deemed that the Supplied Components have been received as per the shipping manifest and free of any transit damages. 

 

4.5    Ownership of the Supplied Components shall however only pass against receipt of payment by Tenthouse of the full Contract Price for such Supplied Component.

 

4.6    In the circumstances that Delivery is delayed at the sole cause of the Client for a period of 1 (one) month or more, Tenthouse will notify the Client in writing of the delay and suggest remedial steps are taken. Such remedial steps may address extended storage options for Supplied Components. In the case of extended storage, remedial options shall include delivery to the Point of Delivery nominated by the Client and/or for Tenthouse to identify,     cost and effect Delivery to convenient storage point(s) near Tenthouse despatch facilities.
For the avoidance of doubt, the Client will be liable for all costs incurred by Tenthouse as a result of a delay in Delivery caused solely by the Client, which may include, but are not limited to, all additional costs associated with extended storage of the Supplied Components. Extended storage costs will be subject to suitable storage as available. 

 

4.6.1    Provided that these terms are both mutually agreed to within 60 days of notification of delay and thereafter adhered to, Tenthouse would be able to extend the contract period by up to 12 months. 

 

4.6.2    If there is no mutual agreement within 60 days of notification of delay or if the extended storage payment terms are not adhered to, Tenthouse has the right to terminate the Agreement with immediate effect.
It is expressly noted that Tenthouse is not a storage specialist, therefore although Tenthouse would take all reasonable precautions to ensure the good condition and safety of the Supplied Components, all risks associated with extended storage are for client to bear.

 

5    SERVICES

 

5.1    Tenthouse shall render the Services as set out in the Quotation in accordance with the Project Programme.

 

5.2    The Services shall include, but will not be limited to:

 

5.2.1    The design and manufacture, and/or procurement of the Supplied Components;

 

5.2.2    Delivery of the Supplied Components;

 

5.2.3    Supervision of the installation and erection of the Final Structures; and

 

5.2.4    Ensuring the Final Structures are completed in accordance with the Project Programme

 

5.3    Tenthouse has and will continue to have the necessary facilities, skill, know-how and expertise to render the Services in accordance with the provisions of this Agreement.

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5.4    In rendering the Services, Tenthouse will avoid any activity which may be detrimental to the Client’s interest, reputation or goodwill.

 

5.5    To enable Tenthouse to render the Services, the Client will:

 

5.5.1    promptly provide Tenthouse, as may from time to time be requested, with such assistance and information including but not limited to: designs, drawings, site information, surveys, site photographs, construction progress photographs, contact details,  and any other information as required in order for Tenthouse to conduct its Services effectively

 

5.5.2    within 3 (three) days of receipt, approve in writing the designs/drawings and all other content Tenthouse presents to the Client (which approval shall not be unreasonably withheld), or provide Tenthouse with written reasons why it will not approve such drawings/designs/content. Should the Client fail to provide a response timeously, it will be deemed that the Client has approved such designs/drawings or other content presented.

 

5.6    The Services shall be performed by Tenthouse within its own discretion and as expeditiously as possible, but within the timeframe set out in the Project Programme.

 

6    VARIATIONS

 

6.1    “Variations” in the Services or Supplied Components may be made only by written Variation Order executed by the Client and Tenthouse in accordance with this clause 6. No oral changes shall be binding.

 

6.2    Initiation of Variation: 

 

6.2.1    A Variation may be initiated by the Client through a written request to Tenthouse. Tenthouse shall respond in writing within ten (10) Business Days with:

 

6.2.1.1    description of the proposed change and its impact on the Services;

 

6.2.1.2    the associated cost adjustment and revised payment schedule; and

 

6.2.1.3    any adjustment to the Project Programme

 

6.2.2    Tenthouse may also propose a Variation where required by site conditions, applicable laws, or to address design or construction issues. Tenthouse shall issue a written Variation proposal to the Client containing the same information as above.

 

6.3    Approval Process:

 

6.3.1    No Variation shall be binding or implemented until it has been approved in writing by the Client and Tenthouse via a signed Variation Order. If the Client fails to respond within five (5) Business Days of receiving a Variation proposal, Tenthouse may issue a written reminder. 

 

6.3.2    If the Client fails to respond within an additional three (3) Business Days, Tenthouse may suspend performance of the affected portion of the Services until written approval or rejection is received. Such suspension shall be treated as a Client-caused delay.

 

6.4    Cost and Time Adjustments:

 

6.4.1    Each approved Variation shall include an equitable adjustment to the Contract Price and, if applicable, the Project Programme. Tenthouse shall not be required to perform any Variation prior to written approval of such adjustments.

 

6.5    No Deemed Approval:

 

6.5.1    For the avoidance of doubt, no Variation shall be deemed approved by failure of the Client to respond. Only written approval shall authorize Tenthouse to proceed with a Variation.

 

6.6    Continuity of Work

 

6.6.1    Tenthouse shall continue performance of all non-affected Services during any period in which a proposed Variation remains under review or dispute.

 

7    OBLIGATIONS OF THE CLIENT

 

7.1    The Client shall – 

 

7.1.1    provide a sufficient number of adequately skilled Workmen, as specified in the Quotation and/ or Project Programme, for the purpose of completion of the Project;

 

7.1.2    grant Tenthouse, including its employees, agents and representatives, with access to the Site for the duration of this Agreement, for the purposes of rendering the Services; 

 

7.1.3    appoint a representative to be at the Site at all times during the working hours set out in the Project Programme, who must be able to provide Tenthouse and its representatives with access to the Site, which for the avoidance of doubt, includes the property on which the Site is located, and all required areas of such property as is required by Tenthouse in order to render the Services;

 

7.1.4    ensure the Supplied Components, delivered by Tenthouse, and all Client Components are available at the Site in order for Tenthouse to be able to render the Services and for the purpose of completion of the Project, it being recorded that Tenthouse will have no responsibility to supply any of the Client Components;

 

7.1.5    ensure that the Client Components meet the standards required by Tenthouse for the completion of the Project;

 

7.1.6    be responsible for the preparation of the Site for the purpose of the Project, which preparation must include, but not be limited to, ground clearing, access work and earthmoving, provision and supply of water and power to the Site;

 

7.1.7    provide clean, accessible and secure storage space, approved by Tenthouse, for the purpose of storage of any Client Components and Supplied Components, and all tools and equipment utilized by Tenthouse for the rendering of the Services;

 

7.1.8    make timeous payment of all fees, costs and expenses due and payable in terms of this Agreement;

 

7.1.9    insure and take all necessary steps to secure and protect the Supplied Components and Final Structures until Final Completion; and

 

7.1.10    be responsible to obtain any relevant/required approvals from the local authority, if applicable, the owner of the Site and the tenants, occupants or neighbours of the Site, for the purposes of the Project. The Client shall ensure that all such approvals have been obtained prior to the date of Delivery. In the event that the Project is delayed as a result of the failure of the Client to obtain such approvals, the timeline of the Project Programme shall be extended accordingly.

 

7.2    Notwithstanding any other rights which Tenthouse may have in terms of this Agreement, in the event that the Client fails to fulfil any of its obligations in terms of this Agreement, any time periods or deadlines as set out in the Project Programme will be extended in accordance with the terms of clause 11 and the Client will be solely liable for any additional costs and/or expenses incurred by Tenthouse as a result of such extension.

 

7.3    It is recorded and acknowledged by the Client that the Project is undertaken by the Client, its representatives, employees, contractors and Workmen. Tenthouse shall render the Services in respect of the Project, however, save as strictly included in the Services – 

 

7.3.1    the Client is responsible for the performance of all works required in respect of the Project;

 

7.3.2    Tenthouse shall bear no responsibility for any acts, omissions, failures or neglect on the part of the Client or its employees, contractors, representatives or Workmen; and

 

7.3.3    for the avoidance of doubt, insofar as the building works of any direct contractor of the Client falls within the Tenthouse Services, the relevant co-ordination of the Project Programme will be the responsibility of Tenthouse, as per the Quotation.

 

8    OBLIGATIONS OF TENTHOUSE

 

8.1    Tenthouse shall -

 

8.1.1    comply will all South African laws relating to the Services to be rendered by it and shall be in possession of all necessary licenses and/or certification required by any such law to enable Tenthouse to render the Services in accordance with South African law. For the avoidance of doubt, Tenthouse will not be responsible for compliance with any laws outside of the Republic of South Africa, and the Client acknowledges that it is liable to ensure compliance with any relevant ‘local’ laws, and the obtaining of any licenses and certification applicable at the Site for the Services;

 

8.1.2    render the Services within its own discretion and as expeditiously as possible, provided that the Services are rendered in accordance with the operational requirements of the Client, and the Client shall at all times be entitled to monitor the performance of Tenthouse and formulate procedures to be followed by Tenthouse and its employees or representatives.

 

8.2    The Client acknowledges that due to the nature of the Services, it is not possible for Tenthouse to render the Services in absolute and/or definitive terms. If the Client is dissatisfied with the way in which Tenthouse is rendering the Services, it is required to notify Tenthouse in writing as soon as possible in order for the Parties to discuss remedial steps in good faith.

 

8.3    Tenthouse shall be entitled to appoint sub-contractors to render the Services, provided that such appointment will not relieve Tenthouse of any of its obligations in terms of this Agreement.

 

8.4    In the event that the Client fails to make payment in terms of clause 12, Tenthouse shall not be responsible for the rendering of the Services and shall, without prejudice to any of its rights in terms of this Agreement, be entitled to terminate this Agreement in accordance with clause 15.

9    PRACTICAL COMPLETION AND FINAL COMPLETION

 

9.1    Upon Practical Completion of the Final Structures, Tenthouse will present the Client with a certificate of Practical Completion. The Client and Tenthouse shall jointly inspect the Final Structures no later than 5 (five) days after Tenthouse has presented the certificate of Practical Completion, and the Parties shall agree on a list of defective or incomplete items in respect of the Final Structures (“Snags List”). Tenthouse shall then instruct the Workmen to correct any defects or incomplete items on the Snags List.

 

9.2    Should the Client fail to provide Tenthouse with a Snags List within 5 (five) days of receipt of the certificate of Practical Completion, the Client will be deemed to have accepted the Final Structures as fit and proper and to have acknowledged that Tenthouse has completed the Services in accordance with the terms of this Agreement. Tenthouse will then issue the Client with a certificate of Final Completion.

 

9.3    The Parties acknowledge that the certificate of Final Completion will only be presented once it has been ratified by the Principal Agent or other Client elected party for sign off.

 

9.4    Any dispute between the Client and Tenthouse which relates to the nature of the remedial work to be undertaken, or whether such remedial work has been properly completed, will be determined by an architect appointed by agreement between the Parties, or failing agreement, an architect appointed by the South African Institute of Architects, whose determination of the dispute (as an expert and not as an arbitrator) shall be final and binding on the Parties.

 

10    ADDITIONAL SERVICES

10.1    Should the Client require additional services, over and above the Services, in respect of the Project (“Additional Services”), then such Additional Services shall be subject to the following terms – 

 

10.1.1    Tenthouse shall present the Client with a quotation for the Additional Services, which upon receipt of written acceptance by the Client, will be the agreed fee for the Additional Services;

 

10.1.2    Tenthouse will advise the Client of any extension to the timeline set out in the Project Programme which will be required for Tenthouse to render the Additional Services; and

 

10.1.3    the Additional Services shall otherwise be subject to the terms of this Agreement.

 

11    EXTENSION OF TIME FOR COMPLETION

 

11.1    The Parties hereby confirm that the Project Programme includes the timeline in which the relevant phases of the Project will be completed, and that the timeline in the Project Programme may be extended, as determined in the sole discretion of Tenthouse, in the following circumstances - 

 

11.1.1    the Parties agree to a Variation, in accordance with clause 6 hereof;

 

11.1.2    the Parties agree to Additional Services, in accordance with clause 10 hereof;

 

11.1.3    a breach by the Client of any of its obligations in terms of this Agreement;

 

11.1.4    a delay caused by the Client, its representatives, agents, employees, contractors or Workmen, failing to perform any obligations in relation to the Project; and

11.1.5    a failure by the Workmen to comply with the instructions and/or directions of Tenthouse.

 

11.2    In its determination of an extension, pursuant to this clause 11, Tenthouse shall act reasonably and have due regard to the nature of the delay and consult with the Client.

 

11.3    Tenthouse shall be entitled to in its sole, reasonable discretion, determine whether an extension of the timeline as set out in the Project Programme will result in an increase in the Contract Price, and will notify the Client accordingly.

 

12    PRICE AND PAYMENT

 

12.1    The Client will pay Tenthouse the Contract Price as set out in the Quotation, subject to any adjustments thereto as a result of Variations, Additional Services and/or Extension of Time to the Project Programme, in terms of this Agreement.

 

12.2    The Client shall pay Tenthouse all amounts, free of exchange and without any deductions or set-off whatsoever, by electronic transfer to a bank account nominated by Tenthouse in writing from time to time and for the time being as set out below.

 

12.3    Tenthouse will be entitled to suspend Delivery and/or the Services, should the Client not make payment of any invoice issued in terms of this Agreement timeously, and Tenthouse will not be liable for any aspect of the Services which it is unable to complete as a result of non-payment by the Client of any invoice issued to the Client.

 

12.4    Tenthouse will present the Client with invoices in accordance with the timeline set out in the Project Programme. All invoices are payable in full within 10 (ten) Business Days of receipt thereof.

 

12.5    Any reimbursable expenses set out in the Quotation must be paid by the Client within 10 (ten) Business Days of receipt of the invoices therefore from Tenthouse, unless otherwise specified in the Quotation.

12.6    It is recorded that the Project Programme provides for the invoices to be issued in respect of each phase of the Project. Without derogating from any of its rights in terms of this Agreement, in the event that the Client fails to make payment to Tenthouse in respect of a particular phase, Tenthouse shall not be obliged to commence the Services in respect of the next phase until such time as payment for the previous phase has been duly received by Tenthouse.

 

12.7    Unless otherwise agreed in writing, the Contract Price excludes withholding Tax, VAT and GST or any other applicable taxes payable in respect of the Services which shall be paid by the Client at the applicable rate together with payment of the Contract Price. Applicable taxes may include but are not limited to: withholding taxes, duties, state and/or federal taxes and sales taxes.

 

12.8    Unless otherwise agreed in writing, all transport costs will constitute reimbursable expenses, as per clause 12.5 above, however, Tenthouse will make payment of all transport costs up-front in order to affect Delivery. The Client is liable for a handling fee of 5% (five) percent of the transport costs, which fee will be payable in full on presentation of an invoice to the Client by Tenthouse.

 

12.9    Unless otherwise agreed in writing, the Contract Price excludes all travelling, travel insurance, accommodation expenses, and associated expenses incurred by Tenthouse in respect of the Services, where the rendering of the Services requires Tenthouse to travel. The Client shall make payment of such travelling and accommodation expenses against presentation of an invoice to the Client by Tenthouse.

 

12.10    The Parties agree that –

 

12.10.1    the Client shall, depending on the mode of delivery of an invoice, be deemed to have received such invoice on the date of deemed receipt contemplated in clause 20.1 below;

 

12.10.2    if the Client fails to make payment in respect of an invoice on the due date, Tenthouse may elect to charge interest on the amount outstanding up to the maximum interest rate as provided for in terms of South African legislation from the 1st day following the due date until date of payment;

 

13    INSURANCE

 

13.1    The Client shall obtain and maintain, for the duration of this Agreement, sufficient insurance to cover public liability and/or legal liability in respect of claims for death of and/or injury to persons or loss of and/or damage to property arising out of the Project, and any unforeseen damages arising from the damage, destruction or loss in respect of any of the Supplied Components after Delivery has taken place. For the avoidance of doubt, Tenthouse will not be liable under any circumstances for any excess or deductibles charged for any claim against the Client’s insurance.

13.2    Tenthouse will have broad-form liability insurance and stock-through-put insurance to the Point of Delivery, as set out in Annexure 4 (issued pre-shipment).

 

14    OWNERSHIP OF INTELLECTUAL PROPERTY

 

14.1    The Client hereby acknowledges and accepts that Tenthouse is the exclusive owner and/or licensee of the Intellectual Property, and the Client acknowledges that it has no rights, whatsoever, in and to the Intellectual Property and will not at any time do or cause any act or thing to be done in any way, which may impair or intend to impair any part of such right, title or interest. The Client shall not in any manner represent that it has any ownership in the Intellectual Property, or registration thereof and will not dispute Tenthouse’s ownership of any such Intellectual Property and any time during the course of this Agreement.

 

14.2    The Client shall be entitled to use the Intellectual Property solely for the purpose of utilising the Supplied Components and the Services for the completion of the Project.

 

14.3    The Client acknowledges that neither it, nor any third party acting on its behalf, is entitled to replicate or reverse engineer any element of Tenthouse’s Intellectual Property, or any component thereof. The Client furthermore acknowledges that neither it, nor any third-party acting on its behalf is entitled to utilise, copy, modify, alter, adapt the Intellectual Property owned by Tenthouse and/or licensed to Tenthouse without the prior written consent of Tenthouse. 

 

14.4    Without limitation of any of the aforementioned provisions, the Client undertakes to take all such reasonable steps to protect the rights of Tenthouse with respect to the Intellectual Property.

 

14.5    Upon the termination of this Agreement, the Client shall immediately cease and desist from all further use of the Intellectual Property and will return to Tenthouse all documentation and data relating to the Intellectual Property.

 

14.6    In as far as the provisions of this Agreement are for the benefit of a third party (including but not limited to the licensor of the Intellectual Property) such third party may at any time accept the benefits of this Agreement and enforce its rights against the Client and/or its directors and shareholders.

 

14.7    Client hereby acknowledges and agrees that Tenthouse will be entitled to use photographic and visualizations of the Final Structures and the Project for Tenthouse marketing materials.

 

14.8    This clause 14 shall survive the termination of this Agreement.

 

15    TERMINATION

 

15.1    If the Client - 

 

15.1.1    fails to pay any amount which it may owe to Tenthouse on due date and fails to pay that amount within 5 (five) Business days after receipt of written notice calling upon it to do so; or

 

15.1.2    breaches any of the terms and conditions of this Agreement, all of which are deemed to be material, and fails to remedy that breach within 5 (five) Business days after receipt of written notice calling upon it to do so;
then and in any of such events, Tenthouse shall, without prejudice to its rights to claim damages or to any other remedy of whatsoever nature that it may have against the Client, become entitled to immediately terminate this Agreement on not less than 5 (five) Business days’ written notice or to claim specific performance of this Agreement from the Client and to claim damages.

 

15.2    If either Party (“the Defaulting Party”) – 

 

15.2.1    is provisionally or finally wound up or placed in business rescue; or

 

15.2.2    a meeting of the Defaulting Party’s shareholders is convened for the purpose of voluntarily winding up that party, or a resolution to that effect is passed; or

 

15.2.3    enters into any compromise, composition or arrangement with any one or more of its creditors; or

 

15.2.4    the Defaulting Party’s goods are attached in pursuance of a judgment and immediate steps to the satisfaction of the non-defaulting Party are not taken to secure the release of those goods; or

 

15.2.5    the Defaulting Party ceases trading altogether or alternatively, materially scales down its trading operations, for a period exceeding 60 (sixty) days; then and in any of such events, the non-defaulting Party shall, without prejudice to its rights to claim damages or to any other remedy of whatsoever nature that it may have against the Defaulting Party, become entitled to immediately terminate this Agreement on not less than 5 (five) Business days’ written notice to the Defaulting Party or to claim specific performance of this Agreement from the Defaulting Party and to claim damages

 

15.3    Upon termination of this Agreement for whatever reason –

 

15.3.1    the Client shall, without delay, return all Intellectual Property belonging to Tenthouse;

 

15.3.2    the provisions which survive the termination of this Agreement shall continue to have force and effect; 

 

15.3.3    Subject to clause 4.6.1 above, Tenthouse shall be entitled to:

 

15.3.3.1    retain all amounts already paid to it by the Client, and to issue a final invoice to the Client in respect of the Services that have been rendered and Supplied Components which have been completed and are ready for Delivery, up to the date of termination of this Agreement; and

 

15.3.3.2    all invoices which have been issued to the Client in terms of this Agreement shall become immediately due and payable and the provisions of this Agreement shall remain valid and binding for the purpose of enforcing the Parties rights and obligations in respect of all outstanding invoices.

 

16    LIABILITY AND INDEMNITY

 

16.1    Under no circumstances shall Tenthouse be liable for any indirect, consequential or special damages, or amounts for loss of income, profits, opportunity costs or savings, third party loss of any other damages or expense suffered or incurred of any kind whatsoever, arising out of or relating to its performance or failure to perform under this Agreement. Without derogating from the aforegoing, Tenthouse’ s liability under this Agreement shall be limited to the amount which Tenthouse has received from the Client in terms of this Agreement, prior to the event giving rise to any such liability.

 

16.2    For the avoidance of doubt, Tenthouse shall only be liable for direct damages if such damages were cause by the gross negligence, fraudulent or wilful misconduct by Tenthouse and any such liability shall be excluded to the extent that it results from failure of the Client to perform any material obligation in terms of this Agreement.

 

16.3    The Client shall, upon becoming aware of an actual claim or lawsuit against an indemnified party, promptly notify Tenthouse thereof, but not accept any liability on behalf of Tenthouse.

 

16.4    The Client hereby indemnifies Tenthouse and holds it harmless against any claims from any third party against Tenthouse, and all costs incurred in connect therewith (including legal costs on an attorney and own client scale) which arise out of or are connected with any act or omission on the part of the Client, its employees, agents, representatives and Workmen.

 

17    CONFIDENTIALITY

 

17.1    Each Party (“Receiving Party”) acknowledges that any information supplied in connection with this Agreement or in connection with the other Party’s technical, industrial or business affairs and Intellectual Property which has or may in any way whatsoever be transferred or come into the possession or knowledge of the Receiving Party may consist of confidential or proprietary data, disclosure of which to, or use by, third Parties might be damaging the Party disclosing such information (“Disclosing Party”).

 

17.2    The Receiving Party therefore agrees to, insofar as is reasonably possible, hold such material and information in the strictest confidence, to prevent any copying thereof by whatever means and not to make use thereof other than for the purposes of this Agreement and to release it only to such properly authorised directors, employees or third parties requiring such information for the purposes of this Agreement and agree not to release or disclose it to any other party who has not signed an agreement expressly binding itself not to use or disclose it other than for the purposes of this Agreement.

 

17.3    The undertaking and obligations contained in this clause do not apply to information which –
17.3.1    is publicly available at the date of disclosure or thereafter becomes publicly available from sources other than the Parties;
17.3.2    is already in possession of the Receiving Party prior to its receipt by or disclosure to it by Disclosing Party;
17.3.3    is required by law or any regulatory authority to be disclosed;
17.3.4    after being disclosed to the Receiving Party is disclosed by any other person to the Receiving Party otherwise than in breach of any obligation of confidentiality.

 

17.4    The Parties acknowledge that the disclosure of the Confidential Information will cause the Disclosing Party to suffer irreparable financial harm.

 

17.5    This clause 17 shall remain in full force and effect during the term of this Agreement and indefinitely after the termination of this Agreement.

 

18    FORCE MAJEURE

 

18.1    Either Party shall not be liable for any failure to fulfil its duties and obligations in terms of this Agreement to the extent that such failure is caused by any event of Force Majeure such events shall include, but are not be limited to: fire, flood, storm, lightning or any natural disaster, pandemic, epidemic, civil disturbance, explosion, power failure, rolling black-outs, or reduction of power supply, acts, orders or regulations of any governmental or regulatory authority, agency or department, war, invasion, act of a foreign enemy, hostilities (whether war be declared or not), terrorism, civil war, rebellion, revolution, criminal action, theft or vandalism, strikes, lock-outs and labour disputes causing cessation (whether complete or partial) of work, interruption or slow-down of work, whether of the Party concerned or service provider of such Party;

 

18.2    If a Party is affected by an event of Force Majeure, the affected Party shall promptly notify the other Party in writing of the event and the estimated extent and duration of that Party inability to perform its duties and obligations.

 

18.3    Upon the cessation of the event of Force Majeure, the affected Party shall notify the other Party of such cessation.

 

18.4    If, as a result of the event of Force Majeure the performance of the Company’s duties and obligations is only partially affected, the Company shall remain liable for the performance of those duties and obligations not affected by the event, occurrence, circumstance or condition.

 

18.5    If any event of Force Majeure contemplated in this clause 18 continues for an uninterrupted period of 60 (sixty) days, either Party may cancel this Agreement with immediate effect by delivering a written notice to that effect to the other Party.

 

19    WARRANTIES, REPRESENTATIONS AND DEFECTS 
General Warranties and Representations:

 

19.1    Each Party represents and warrants to the other that –

 

19.1.1    it has full power to conclude this Agreement and to perform its obligations in terms of this Agreement;

 

19.1.2    to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all its obligations in terms of this Agreement;

 

19.1.3    it is entering into this Agreement as principal (and not as agent or in any other capacity);

 

19.1.4    it has consulted with its own legal, regulatory, tax, business, investment, financial, accounting and other advisers to the extent it has deemed necessary, and it has made its own decisions based upon its own judgement and upon any advice from such advisers as it has deemed necessary, and not upon any view expressed by the other Party; and

 

19.1.5    it is entering into this Agreement with a full understanding of the terms, conditions and risks thereof and it is capable of and willing to assume those risks.

 

19.2    Tenthouse warrants that it has and will at all relevant times have adequate insurance and/or succession mechanisms in place to cover all directors and key staff members to ensure that the Client and the specific project will not be prejudiced in any way or form should Tenthouse suffer the loss or incapacitation of any director or key staff member.
Standard Supplied Component Warranty:

 

19.3    For the purposes of this clause 19, “Defect” means a defect in Supplied Components and/or the Final Structures.

 

19.4    Tenthouse warrants that for a period of 6 (six) months (“the Warranty Period”), the Supplied Components and/or Final Structures shall be deemed to be free of Defects, excluding any Defects which may arise from or as a result of:

 

19.4.1    material degradation or damage due to force majeure factors;

 

19.4.2    minor manufacturing or aesthetic variations or defects that have no structural impact;

 

19.4.3    the Client using the Client components or parts that were not proposed or recommended by Tenthouse;

 

19.4.4    any issues arising out of the interface of Supplied Components with Client Components forming part of the Final Structure, where Tenthouse has not performed the engineering and/or provided the specifications of said structure and/or Client Components;

 

19.4.5    any issues arising out of the interface of Supplied Components with Client Components forming part of the Final Structure, where Tenthouse has performed the engineering and/or provided the specifications of said structure and/or Client Components, but the Client or its representatives have failed to comply therewith;

 

19.4.6    the negligent or wilful misconduct of the Client, it’s assigns, employees, contractors and/or guests; and

 

19.4.7    the improper use or improper installation by the Client or any third party of the Supplied Components and/or Final Structures.

 

19.5    Minor textile fabrication and panel marketing of PVC tensile membranes and canvas works may arise from time to time. These are a normal result of the knitting, weaving, coating, welding or stitching processes associated with textile architecture. They are cosmetic in nature only, and do not affect the strength, durability or performance of the structure. Our team takes care to minimize their visibility wherever possible. These are not regarded as defects.
           Component Warranties general:

 

19.6    Tenthouse shall not be liable for Client Components or any materials or goods which are not manufactured or supplied by Tenthouse. 

 

19.7    The warranties provided herein clause 19 and the structural integrity of the Final Structure are subject to the Client adhering to any guidelines and instructions supplied to the Client by Tenthouse regarding the maintenance, usage and care thereof. The Supplied Component and Final Structure warranties shall be in effect if, and only if, repairs and/or alterations to the Supplied Components and/or Final Structures have been made by representatives of Tenthouse or by a person duly authorised by Tenthouse.

 

19.8    The effective date of warranties provided herein clause 19 commence on the Practical Completion date as set out in the Project Programme, or should the Project Programme be delayed, as alternatively agreed to in writing between the Parties, and is subject to payment in full by the Client of the Contract Price and compliance with all the terms of payment and conditions of the Agreement. For the avoidance of doubt textile warranties, are an exception to this and commence at the date the goods leave the textile manufacturer’s facilities.

Defects Procedure and Limitation of Liability:

 

19.9    If the Client discovers a Defect in the Supplied Components and/or Final Structures during the Warranty Period, the Client shall, without unreasonable delay, deliver a written notice (“Defect Notice”) to that effect to Tenthouse in which:

 

19.9.1    the nature of the Defect and the number of items affected and the date it was discovered are clearly stipulated and photographed; and

 

19.9.2    Tenthouse is invited to inspect the relevant items within a reasonable period at the Client’s costs for both travel, meals and accommodation.

 

19.10    If the Defect is of such a nature that it can be repaired, the Client shall allow Tenthouse 10 (ten) Business Days after delivery of the Defect Notice or after the inspection in terms of clause 19.9.2 (whichever comes later), to provide a solution and program to repair the Defect, which repair costs shall be for the account of Tenthouse.

 

19.11    For the avoidance of doubt, Tenthouse’s maximum total liability for the repair and/or replacement of all Defects during the warranty period, is limited to the value of the Supplied Components proportion of the Contract Price as set out in the Quotation. Should any repairs and replacements be necessary which exceed this amount, Tenthouse shall inform the Client in writing, and on receipt of written notice from the Client to proceed with the repairs, such repairs will be at the Client’s expense.

 

19.12    If the Defect is of such a nature that it cannot reasonably be repaired, or Tenthouse fails to remedy the Defect within 120 (one hundred and twenty) calendar days after delivery of the Defect Notice and/or inspection of the defect (whichever comes later), then the Client shall be entitled to claim from Tenthouse a replacement of the Supplied Component, or a credit note in respect of the price payable by the Client in respect of those items referred to in the Defect Notice and which could not be repaired, it being agreed that any replacement costs shall be for the account of Tenthouse

 

19.13    Tenthouse will provide the Client with a basis of design and/or an engineer’s report prior to manufacture of structural components, which shall contain a summary of the tensile structure analysis in order to provide any engineers of record appointed by the Client with further information.

 

20    DISPUTE RESOLUTION

 

20.1    In the event of a dispute, demand or claim arising between the Parties, a representative of each Party shall, upon written notice issued by any Party to the other Party, meet to negotiate and resolve the dispute. If the parties to the dispute cannot resolve the dispute within 30 (thirty) days from receipt of written notice as aforesaid, such dispute shall be submitted to arbitration in accordance with the following provisions of this clause 0.

 

20.2    If the Parties are unable to resolve any dispute, demand or claim within 30 (thirty) days of receipt of the written notice referred to in clause 20.1, such dispute, demand or claim, as the case may be, shall, on written demand by any Party, be submitted to arbitration in accordance with in accordance with the Expedited Rules (“the Rules”) of the Arbitration Foundation of Southern Africa (“AFSA”). 

 

20.3    The Parties hereby consent to the arbitration being dealt with on an urgent basis in terms of the Rules should either Party by written notice require the arbitration to be held on an urgent basis.  In such event the Parties agree to apply jointly to the AFSA Secretariat as required in terms of the said Rules to facilitate such urgent arbitration.

 

20.4    The arbitration shall be held –

 

20.4.1    at Cape Town;

 

20.4.2    with only the legal and other representatives of the Parties to the dispute present thereat; and

 

20.4.3    otherwise in terms of the Arbitration Act, No 42 of 1965 (“Arbitration Act”), unless otherwise provided for herein.

 

20.5    The arbitrator shall be a practising advocate of the Cape Bar of at least ten years’ standing, appointed by agreement between the Parties to the dispute, subject to clause 20.6

 

20.6    Should the Parties fail to agree on an arbitrator within 14 (fourteen) days after the giving of notice in terms of clause 20.2, the arbitrator shall be appointed by the Chairperson of AFSA.

​

20.7    The Parties hereby consent to the jurisdiction of the High Court of South Africa in respect of the proceedings referred to in clause 20.8.

 

20.8    The decision of the arbitrator shall be final and binding on the Parties to the dispute and may be made an order of the court referred to in clause 20.7 at the instance of any of the parties to the dispute.

 

20.9    In the event that a party to a dispute wishes to appeal the decision of the arbitrator, such party shall apply to the arbitrator for leave to appeal within 14 (fourteen) days of the decision of the arbitrator.

 

20.10    In the event that a party to the dispute is granted leave to appeal the decision of the arbitrator, such appeal shall be held before 3 (three) arbitrators appointed in accordance with 20.5 and 20.6, which may include retired judges also appointed in accordance with 20.5 and

 

20.6.

 

20.11    In the event that a party to the dispute is granted leave to appeal the decision of the arbitrator such party shall furnish security for the costs of the appeal in an amount of R150 000 (one hundred and fifty thousand Rand) within 10 (ten) Business Days from the date on which leave to appeal is granted.  Should the relevant party fail to furnish security to this effect the leave to appeal shall lapse.

 

20.12    The Parties agree 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 purposes of obtaining an order as contemplated herein.

 

20.13    It is recorded that it is the intention of the Parties, that any dispute referred to arbitration in terms of 20.2 shall be resolved strictly in accordance with the provisions of this clause 0. The Parties accordingly agree and undertake as follows –

 

20.13.1    that it shall not make any application to Court as contemplated in terms of section 3(2) of the Arbitration Act; 

 

20.13.2    that it shall not make any application to the arbitration tribunal as contemplated in terms of section 20(1); and

 

20.13.3    the periods set out in section 23 of the Arbitration Act shall not be applicable to any arbitration proceedings arising out of this Agreement.

 

20.14    The provisions of this clause 0 are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.

 

21    NOTICES AND DOMICILIA

 

21.1    The Parties choose as their domicilia citandi et executandi their respective addresses set out in 1 and 2 of the Schedule for all purposes arising out of or in connection with this Agreement at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.

 

21.2    Any notice given in terms of this Agreement shall be in writing and shall -

 

21.2.1    if delivered by hand or courier, be deemed to have been duly received by the addressee on the date of delivery; or

 

21.2.2    if transmitted by electronic mail be deemed to have been received by the addressee on the expiration of 24 (twenty-four) hours after transmission;
unless the contrary is proved.

 

21.3    Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the Parties from another shall be adequate written notice or communication to such party.

 

22    GENERAL

 

22.1    No particulars contained in any advertising matter, catalogue, drawings or other publication supplied by Tenthouse nor any verbal representation by any employee or agent of Tenthouse nor any previous correspondence between the Parties shall form part of this Agreement nor shall they be treated as constituting a representation on the part of Tenthouse.

 

22.2    No alteration, cancellation, variation of, or addition to this Agreement shall be of any force or effect unless reduced to writing and signed by all Parties to this Agreement or their duly authorised representatives.

 

22.3    No indulgence, leniency or extension of time which any party may grant or show, shall in any way prejudice such party or preclude it from exercising any of its rights in the future.

 

22.4    The expiration, cancellation or other termination of this Agreement shall not affect those provisions of this Agreement which expressly provide that they will operate after such expiration, cancellation or other termination or which of necessity must continue to endure after such expiration, cancellation or other termination, notwithstanding that the relevant clause may not expressly provide for such continuation.

 

22.5    If any provision of this Agreement is illegal, invalid or unenforceable, then it is the intention of the Parties that the remainder of this Agreement shall not be affected, and it is also the intention of the Parties that, in place of each provision of this Agreement that is illegal, invalid or unenforceable, there be added as part of this Agreement a provision as similar in nature and content as the aforementioned provision in order to render the intention contained in the provision legal, valid and enforceable.

 

22.6    The Client shall not cede or delegate its rights or obligations in terms of this Agreement without the prior written consent of Tenthouse, whose discretion in this regard shall be sole and absolute. 

 

22.7    This Agreement may be signed in counterparts, with each individual part constituting an original and together constituting the whole instrument.