General Terms & Conditions for the supply of Materials and Services


1 SCOPE AND APPLICATION.

1.1 These general terms are applicable to all Sales or services performed or provided by Asunim Solar South Africa (Pty) Ltd. (ASSA) 2013/172159/07, namely, the ones described in our brochures, price lists, advertisements, budgets, by Internet or verbally and will be regulated by the rules hereby described, excluding any other analogous terms or conditions.

1.2 These general terms will prevail over any others, and ASSA will reserve to itself the faculty or right to modify them, always in writing. The Client order presupposes the acceptance of the hereby described General Terms.

1.3 The default selling conditions are Incoterms 2000: EXW.ASSA

1.4 The head offices of ASSA are:

1.4.1 Asunim Solar South Africa (Pty) Ltd. , The Interchange, 22 Skeen Boulevard, 5th Floor, Bedfordview 2007, Gauteng / South Africa

2 ORDER / CONTRACT.

2.1 All orders/contracts will be formalized in writing, by electronic mail, fax, WhatsApp, SMS or other form of communication and will only have mandatory effects when accepted by ASSA trough the order confirmation done by any of the above-described means of communication.

2.2 The Client should verify the received order confirmation and immediately notify in writing on any identified error until 48 hours after de reception of the order confirmation; otherwise, the product description and the characteristics and/or technical specifications detailed on the order confirmation sent by ASSA will be considered valid and the order will be effective.

3 PRICE AND PAYMENT TERMS.

3.1 The quotations or commercial offers will only be valid when detailed in writing and during the deadline expressly stated in them. If no deadline is established, it will be considered a maximum period of 7 days, with no possibility of any extension.

3.2 The price of the product and the terms of payment will be established on the confirmation of each order.

3.3 ASSA reserves the right to perform an adjustment to the final quotation in case, by unforeseeable or unexpected reasons, out of reach of ASSA, such as variations on currency exchange, taxes, insurances, and other costs of production (including those of components and services). The price may be changed by ASSA with previous warning to the interested parts, who agree to accept the changes.

3.4 The payment will be formalized when the order is effective or, if applicable, as it is established in the conditions stated on the confirmation order.

3.5 Unless expressly stated or charged as a separate item on the quote or invoice, the total amount payable by the client is NET and excludes any and all bank and financial costs, fees and charges related to the payment method chosen by the client.

3.6 ASSA may suspend the delivery of the goods or the providing of the services until the total fulfilment of the global price payment.

3.7 In case of payment delay (arrears) there will be a charge to the final price of all the costs suffered by ASSA as well as a compounding interest charge for any amounts in arrears at a rate of 2% per month.

3.8 Charges will apply daily on the amount of debt or on the remaining amount of debt at that time, from the due date of payment and to its total liquidation.

3.9 Before the shipping of the merchandise or the rendering of a service, ASSA reserves the right to certify the approval of the terms of payment by the corresponding entities, as long as it is considered necessary.

3.10 In case of default on any payment, in the due and agreed date, ASSA may suspend or cancel any shipping or pending Contracts without incurring any liability by damages or losses, including loss of profit or damages that may be caused due to delay or loss of production.

3.11 The execution of the previous right by ASSA will not release the Client from its contractual obligations related to the due payments and to the reception of products in any circumstances.

3.12 When the goods are exported from South Africa to another country, in case the Client has his usual residence outside of The Republic of South Africa and wishes to bring effectiveness to any tax exemption, the client must provide ASSA a copy of their incorporation documents, proof of domicile abroad as well as proof of tax registration.

3.13 ASSA will assist the Client with the invoices and Exporters / Shipment documentation but will only release any goods for export when client provides ASSA with SAD500 and necessary export clearance.

3.14 If the Client fails to present the requested documents, ASSA will charge VAT and consider the sale as a sale of items for the local market. The client can later file a request for refund from SARS if the goods have been exported.

3.15 The client agrees to indemnify ASSA and hold ASSA harmless if the client or the transporter, or logistics operator does not comply with all export procedures.

3.16 ASSA will allocate payments received to the client’s ongoing account.

4 DELIVERY/TITLE/RISK.

4.1 The delivery of the merchandise will be done within the period indicated in the order confirmation. The deliveries can be made in several parts.

4.2 The delivery will be considered effective as soon as ASSA place the products at the Client’s disposal and as soon as the Client signs the document of the delivery reception.

4.3 We hereby inform that it is the sole responsibility of the Client to check the conditions of the product at reception, stating in the document of reception, if applicable, all justifiable reservations and complaints.

4.4 If the Client refuses the reception of the merchandise without the approval of ASSA, all resulting expenses and/or damages will incur on his account, including the storage and until its withdrawal.

4.5 ASSA will not be liable of failure to perform its obligations when it is caused by events which cannot be foreseen, or, if foreseen, would be inevitable, or for any impediments beyond its control (both in cases of “force majeure” and fortuitous events), including, amongst others, Government or administrative acts, own labor strikes or from third parties, closure order by the employer, civil disorders, earthquakes and any other natural disasters, lack or inability to obtain raw materials, supplies or equipment, lack of operational facilities, Pandemics or other Public Health related matters, insolvency, business rescue, bankruptcy or liquidation of any party, etc.

4.6 The supplied merchandise, notwithstanding its possession being already transferred directly to the Client, will be property of ASSA until the total liquidation of the final price.

4.7 The Client cannot offer the merchandise, cede it to others as collateral, whether real or personal guarantee, or by any other means, until its full payment.

4.8 Until the payment is effective, the Client may not give any use to the merchandise, must maintain the merchandise in perfect condition and identify it, if applicable, as property of ASSA.

4.9 The client’s compliance with ASSA’s lien will not exempt the client from its obligations nor imply that ASSA renounces, forfeits or pardon its right to claim damages, losses and the fulfilment of the Contract by the client.

5 ACCEPTANCE.

5.1 The Client must examine the product immediately after the delivery and within a period of 48 hours, in order to proceed to its inspection and to do the corresponding notes and reservations. After this time period it will be considered that the client accepted satisfactorily the product.

5.2 In case the Client returns the product, by justifiable reasons, and has informed ASSA, and ASSA has accepted the justification, the client should proceed to the return in its original conditions, with its package, return note and purchase justification.

5.3 The return costs will incur at clients’ expense unless exists a justification to the return according to the terms of the product warranty, included in the package.

6 WARRANTIES.

6.1 The Client will use the merchandise according to the user’s manual and the manufacturer’s instructions.

6.2 ASSA will not be liable for any damages or losses caused by the merchandise, or to any third parties, due to an incorrect handling by lack of observation of the instructions stated in the user’s manual or Safety Rules of the merchandise.

6.3 ASSA will not be held liable for any incorrect installation or malfunction.

6.4 If the supplied product(s) are defective during the warranty period given by the manufacturer, ASSA will repair or replace it in a reasonable period of time.

6.5 The Client will allow ASSA to examine it, as wished, in its current location or indicated locations. ASSA have the property of the replaced or spared parts.

6.6 ASSA will provide the necessary assistance in order to solve the problems in an adequate period of time, as the circumstances may demand.

6.7 ASSA does not guarantee or accept responsibility for the following:

6.7.1 Damages caused by incorrect installation, use, modification or repair done by a third party not duly authorized or done by the Client himself;

6.7.2 Damages caused by any other person or external element;

6.7.3 Suitability of the product to an end, purpose or specific use;

6.7.4 Any instruction given by the Client and correctly performed by ASSA.

6.8 The responsibility of ASSA for any violation to this warranty, to its service commitments or any other concept, in any case will not exceed the price of the product established in the confirmation order.

6.9 The warranty will exclusively cover the work force and the defective parts, thereby determining a limitation on the liability of ASSA and not assuming the replacement of consumables neither the abnormal use of the products, the malfunction of the accessories, the damages originated by external causes to the apparatus, neither the deterioration originated by adaptations or adjustments.

6.10 The warranty will not be valid in the following circumstances:

6.10.1 Strokes, accidents and/or inadequate transportation,

6.10.2 Handling by personnel different from the recommended technical service indicated by ASSA, or

6.10.3 for the handling of any tape or label of identification/control,

6.10.4 for any guilt or negligence from the Client or any technician or third party,

6.10.5 for the normal wear due to use,

6.10.6 for damages due to external phenomena or natural catastrophes such as storms, floods, lightning, earthquakes, fires, etc.

6.10.7 The warranty will also be invalid if the serial number of the product is modified.

7 SERVICES / GOODS.

7.1 Services, as agreed in the scope of work, will be provided by ASSA. Goods. Items and other merchandise will be provided as per Purchase Order confirmation.

7.2 If a service, a task or an item are not explicitly expressed and recorded in the scope of work, or order confirmation, then it is explicitly EXCLUDED from the services, tasks or items to be provided and ASSA is under no obligation to execute any other services or tasks nor supply any other items demanded by the client without adequate compensation.

7.3 The response timings will be estimates and may vary according to the location or accessibility of the product.

7.4 Service can be provided through telephone or Internet, according to its characteristics and circumstances.

7.5 If it is previously agreed and indicated in the confirmation order, the service offer may include advice, training and/or consultation.

7.6 Unless expressly recorded in the confirmation order, service does not include:

7.6.1 articles excluded from the warranty,

7.6.2 modifications in the configuration,

7.6.3 replacement,

7.6.4 preventive maintenance,

7.6.5 works that according to ASSA are considered not necessary and issues related to the electric environment.

7.7 The repair of third parties’ products will be made according to the manufacturer’s warranty or the license issuer.

7.8 The spare parts which are not critical to the product function may not be replaced in the same time of the service offer.

7.9 The transportation from our warehouse(s) to the indicated location by the buyer, as well as the transportation insurance is at the expense of the buyer.

7.10 The responsibility of ASSA does not include damages or loss caused by or during the above referred transportation.

8 EXPORT CONTROL.

8.1 The product may include technology or Software submitted to the control laws of exportation of the USA and/or other country where the product is delivered or used and, therefore, those laws shall be met by the Client.

8.2 The product cannot be sold, rented or transferred to final users or countries restricted by those laws or users implied in matters of massive destruction armament or genocide.

8.3 The restrictions of the USA may frequently vary depending on the product and, therefore, the Client must comply with all the regulations existing in the USA and in each specific case.

8.4 Having made the above warning, ASSA will stand exonerated from any liability, being exclusively the Client and the final acquirer the sole joint responsible before any eventuality that may arise and to respond by any damages or losses that may occur.

9 “FORCE MAJEUR”.

9.1 We do not accept any responsibility for delays (including deliveries and services) caused by any circumstances that are outside of our reasonable control and in that case we will have the right to a postponement of the execution;

9.2 For clarity purposes, these circumstances, may include but are not limited to:

9.2.1 strikes, logistics / transportation problems,

9.2.2 supply or production troubles,

9.2.3 fluctuation on the currency exchange rates,

9.2.4 governmental action / orders

9.2.5 natural disasters,

9.2.6 pandemics or Public Health matters.

9.2.7 insolvency, business rescue, bankruptcy or liquidation of any party

9.3 If the causes endure more than 2 months, this agreement can be resolved by any party with no right to any compensation.

10 CONFIDENTIALITY.

10.1 The parties shall treat all information received or issued by any means and referring, directly or indirectly, to this commercial transaction as “confidential”, with no possibility of using it for other purposes unless the satisfaction and compliance of this contract.

11 RESOLUTION OF CONTRACT.

11.1 ASSA can terminate this contract without previous written warning, based on any of the reasons established in the South African an any applicable international Law as well as any Civil Code or Law of the country of origin of the manufacturers of the products or the country of the consignee receiving the merchandise and if:

11.1.1 A price is not punctually paid and, for that effect, the parties expressly agree that the lack of total or partial payment will produce the automatic and fully rightful termination of all contracts with no possibility of any claim to be held by the Client;

11.1.2 The Client infringes, or ASSA suspects that the Client has infringed laws on the control of export / import of goods.

11.2 ASSA can resolve this contract if the Client:

11.2.1 does not comply in a persistent and material manner with the terms of any existing agreement and does not remedy a breach of such agreement within the following 15 days, after that fact is demanded in written; or

11.2.2 if it is officially that the Client has an event of liquidation, insolvency or bankruptcy and the client is not able to pay its debts in due date.

11.3 ASSA having faithfully fulfilled its obligations, as agreed, can choose to demand the execution any of the obligations acquired by the client, or also, demand the resolution of the agreement and require to be compensated of any damages and losses.

11.4 Notwithstanding the clause before, at its sole discretion, ASSA may, inter alia, invoice the client for any work done for which ASSA has not been compensated.

12 CLIENT OBLIGATIONS.

12.1 The Client will respond for the following:

12.1.1 Its main obligations will be the satisfaction of the services and/or products price in what concerns the deadline and the agreed terms and conditions.

12.1.2 The Client is responsible for the product and its suitability for a purpose and shall also cover all its telephone and mail expenses, if applicable, to contact ASSA.

12.1.3 The Client will address our personnel with due courtesy, showing the proper manners of a good trader, stated in international Commercial Codes, providing all the necessary information and cooperating with ASSA in order to allow them the faithful compliance of their commitments.

13 DATA PROTECTION.

13.1 ASSA are hereby expressly authorized to use the Client’s data related to the commercial relationship and to be object of computer treatment, without prejudice to the right of access, cancelation or rectification that the Client may exercise at any time and by any mean in the headquarters of ASSA.

13.2 The personal data will be used exclusively to the prosecution of orders and to the compliance of the object and purpose of this contract. The subsequent use of the referred data for publicity purposes without the Client’s express consent is hereby totally prohibited.

13.3 In accordance to the Data Protection laws, the registration of these data in our system should be declared to the Committee of Data Protection of the country of origin and headquarters of the firm of ASSA.

14 CONSUMER RIGHTS:

14.1 If the Client is a Consumer, no disposition in this contract will affect in any manner the dispositions of public order in matter of the consumers’ rights.

15 JURISDICTION.

15.1 The hereby conditions will be regulated by the laws of the country of origin and headquarters of the firm of ASSA.

15.2 To solve any doubts, discrepancies or divergences or disputes that may arouse in the compliance and interpretation of the present contract, the parties will submit to the Judges and Courts of South Africa, expressly renouncing to any others.

16 VARIOUS.

16.1 If any disposition in this contract is declared invalid or inapplicable by any Court, the remaining ones will not be affected.

16.2 The Client can subcontract its obligations to a third party. No party can cede or transfer any obligations or rights. The notifications shall be made in written (manually, by e-mail, fax or certified mail) and sent to the legal representative of the other party.

17 INFORMATION.

17.1 The Client will find information on ASSA and their procedures in the Web page: www.asunim.co.za

17.2 The client can address that page to be aware of any update.

17.3 ASSA operates independently of Asunim Group and any of its companies.

17.4 ASSA is exempt from any liability and responsibility for any obligations of Asunim Group and any of its companies

18 NON-CIRCUMVENTION:

18.1 ASSA business involves, among other activities, introducing, participating, effectuating and consummating transactions between its respective contacts, including other Parties and Affiliates (each, a “Transaction”).

18.2 In consideration of the foregoing, the client hereby irrevocably agrees and warrants that it and its Affiliates shall not, directly or indirectly, interfere with, circumvent, attempt to circumvent, avoid or bypass ASSA from any Transactions between its contacts, or obviate or interfere with the relationship ASSA and its contacts for the purpose of gaining any benefit, whether such benefit is monetary or otherwise.

19 NO WAIVER

19.1 No failure or delay on the part of Asunim Solar South Africa hereto in the exercise of any right set in this engagement letter will impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty, covenant or agreement herein, nor will any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

19.2 No waiver of any provision of this document shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), or shall constitute a continuing waiver unless otherwise expressly provided.

19.3 No waiver of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party against whom such waiver is intended to be effective.

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Annexure 1 to the General Terms & Conditions for the supply of Engineering, Procurement and Construction Services

1. Information

1.1. All information regarding the client’s business and affairs is privileged and will be kept confidential by ASSA (Asunim Solar South Africa (Pty) Ltd) at all times, save for the purpose of instructing and dealing with other advisers acting on the client’s behalf, or if it is already in the public domain, or the client instruct ASSA to disclose information, specifically or by implication, to a third party. In certain circumstances, however, ASSA may be obliged to give evidence and produce such information to courts or authorities in connection with the client’s affairs.

2. Indemnity and Right to Compensation

2.1. The client irrevocably accepts to indemnity and compensate ASSA for any losses related to unethical actions or behaviors performed by the client, its shareholders, directors or employees.

2.2. Not limited to the below list of unethical behaviors, ASSA will be entitled to be indemnified and compensated for any of the following actions that the client or any of its affiliated companies, shareholders, directors, employees do:

2.2.1. Use ASSA’s good name, reputation and references to participate in tenders, projects, or work that otherwise would not have access to, and then terminates the engagement or contracts or hires another firm or person or employee to provide the same or similar EPC services that ASSA would be performing and be remunerated for.

2.2.2. Termination of the engagement and or contract before its term or the term of any project in which ASSA has been working on.

2.2.3. Ceed, give away, subcontract, any rights to a contract, project or work in which ASSA has worked with the client.

2.2.4. Deprive, hide, omit or not disclose to ASSA information on awards of any projects that ASSA has been involved to avoid continuing to work with ASSA in said projects and keeping ASSA access to reasonable expected income for the performance of the services.

2.2.5. Circumvent the relationship between ASSA and its employees, suppliers, manufacturers, consultants, and engage such entities with offer to contract, purchase, sell, or employ, to avoid paying ASSA’s fees.

2.2.6. Sabotage the work, project or actions to claim just cause in termination of contracts.

2.2.7. After requesting any meetings, site visits, quotes or estimates preparation, presentations, financial models, possible technical solutions, drawings or any other work, ghosting ASSA, refuse to reply follow ups, change their minds without any form of negotiation and instead contract with another supplier, keeping ASSA from recovering the costs of work already done from the margin and income ASSA would get by supplying, delivering and installing any type of solar, energy production component, energy storage system or related services.

2.2.8. Any form of action or behavior that can be interpreted as misrepresentation, fraud or unjust enrichment by the client.

3. Copyright and Copies

3.1. Unless agreed to the contrary in writing, the copyright in all work prepared by Asunim Solar South Africa (Pty) Ltd (below “ASSA”) for the client will be owned by ASSA who hereby grant the client a non-exclusive right to use the work prepared for the client by ASSA.

3.2. All information and data held by ASSA belongs to it and it has the right to retain ownership and keep copies of information and data.

4. Legal Proceedings

4.1. In the event of ASSA instituting legal proceedings against the client, the client agrees to pay all legal fees incurred by ASSA on the attorney and own client scale, including tracing agents’ fees and collection commission.

5. Limitation of liability

5.1. Notwithstanding any express, implied or tacit term to the contrary in this document, the maximum aggregate liability of ASSA, its employees, consultants and agents for any loss or damage, whether direct, indirect, consequential or otherwise, which may be suffered by the client arising from any cause in connection with this letter (including, without limitation, any cause in connection with anything done or not done pursuant to this letter), whether such loss or damage results from breach of contract (whether material, fundamental or otherwise), delict, negligence or any other cause without limitation and whether this letter is cancelled or not, will in no circumstances exceed the fees actually paid to ASSA for the services or work contemplated in any particular instruction, unless it is finally determined that the loss or damage was caused by fraud or willful misconduct on the part of ASSA, ASSA will not be liable to the Client or any cessionary or third party claiming through or on behalf of the Client for any punitive damages whatsoever or for any consequential or other loss or damages beyond the maximum liability specified.

6. Performance of Assignments

6.1. Any assignment performed for the Client is governed by South African law and any claims will be (subject to clause 8 hereof) subject to the exclusive jurisdiction of the Courts of South Africa.

6.2. Any claims, howsoever arising, must be commenced formally in accordance with clause 11 hereof within 2 (two) months after the party bringing the claim becomes aware (or ought reasonably to have become aware) of the facts which give rise to the claim and, in any event regardless of the knowledge of the claimant, by no later than 6 (six) months after the date of any alleged breach of contract, delictual act or other act or omission giving rise to a cause of action. This expressly overrides any statutory provision that would otherwise apply.

7. Indemnification against liability

7.1. In the event of any third party making any claim against ASSA for any loss or damage, whether direct, indirect, consequential or otherwise, arising from any cause in connection with this letter (including without limitation, any cause in connection with anything done or not done pursuant to this letter), whether such loss or damage results from breach of contract (whether material, fundamental or otherwise), delict, negligence or any other cause without limitation, and whether this letter is cancelled or not, the client hereby indemnify ASSA against any such claim, unless it is finally determined that the loss or damage was caused by fraud or willful misconduct on the part of ASSA or any or its employees or agents.

8. Exclusion of liability Misrepresentation:

8.1. Because of the importance to ASSA’s work of relevant, accurate and complete information being furnished to ASSA by the client (whether requested or not), and because ASSA has to be reliant on the information for the purposes of discharging ASSA’s obligations in terms of this document, ASSA shall not be liable for any loss, damage, costs or expenses whatsoever and howsoever caused, incurred, sustained or arising from a failure to disclose such information to ASSA or from incorrect and/or incomplete information furnished to ASSA or from misrepresentations (whether such failure, furnishing and/or misrepresentation is innocent, negligent, reckless or willful).

9. Electronic communication:

9.1. ASSA may correspond, convey documentation and generally communicate with the client electronically (unless the client expressly requests otherwise on specific matters) and receive such communications from the client. ASSA may also, with client’s agreement, use electronic means of communication to send and receive information requests to and from designated third parties in connection with the assignment.

9.2. The client understands and acknowledges that the electronic transmission of information by electronic mail on the Internet or otherwise has inherent risks and that such communications may become lost, delayed, intercepted, corrupted or be otherwise altered, rendered incomplete or fail to be delivered.

9.3. ASSA shall use its reasonable endeavours to ensure that electronic communications that it sends are free from viruses and any other material that may cause inconvenience or harm to any other computer system and the client undertake to do likewise with any electronic communications that the client send to us.

9.4. However, because the electronic transmission of information cannot be guaranteed to be secure or error free and its confidentiality may be vulnerable to access by unauthorised third parties, ASSA shall have no responsibility or liability to the client on any basis other than ASSA’s bad faith or willful default in respect of any error, omission, claim or loss arising from or in connection with the electronic communication of information to the client (or client’s reliance on such information) or electronic communications entered into with the client’s agreement with designated third parties in connection with the transmission.

9.5. Regardless of whether or not this contract is for any reason terminated or cancelled, or held to be void or voidable, and is thereafter voided, the terms set out in the clauses under the heading “GENERAL” will remain binding on ASSA and the client.

10. Reliance on advice:

10.1. Any advice (including but not limited to any report/information) given by ASSA to the Client – whether verbally or in writing – shall be based on the information supplied by the Client to ASSA. ASSA shall not be liable to the Client or to any third party for any damages suffered as a result of the Client failing to disclose any relevant information to ASSA.

10.2. Any advice given by ASSA to the Client is based on the facts and circumstances of the Client. Therefore, such advice shall be given for the sole use of the Client to whom it is addressed and may be relied on only by the Client. No party other than the Client to whom it is addressed shall be entitled to rely on advice given by ASSA to the Client for any purpose whatsoever.

10.3. The Board of Directors of the Client shall be solely responsible for

10.3.1. (a) making all relevant management decisions and instruct ASSA on performing all services, supplies and functions.

10.3.2. (b) designating a competent Board member to oversee the services.

10.3.3. (c) evaluating the adequacy and results of the services.

10.3.4. (d) accepting responsibility for the results of the services; and

10.3.5. (e) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.

10.4. The Client indemnifies ASSA against any claim by any third party arising from advice given by ASSA to the Client.

11. Dispute Resolution

11.1. If any dispute arises out of or in connection with this agreement, or related thereto, whether directly or indirectly, the Parties must refer the dispute for resolution firstly by way of negotiation.

11.2. A dispute shall arise if the dispute and particularity thereof is communicated by one party to the other in writing. Each party agrees to continue performing its obligations under the Agreement while any dispute is being resolved except to the extent that the issue in dispute precludes performance.

11.3. Within 21 (twenty one) days of the dispute arising, the Parties shall seek an amicable resolution to such dispute by referring such dispute to representatives of each of the Parties concerned for their negotiation and resolution of the dispute. The representatives shall be authorised to resolve the dispute.

11.4. The period of 21 (twenty one) days aforesaid for negotiation may be shortened or lengthened by written agreement between the parties.

11.5. The provisions of this clause 11 shall not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending the outcome of the arbitration for which purpose the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.

11.6. This clause is a separate, divisible agreement from the rest of any Agreement and shall remain in effect even if the Agreement terminates, is nullified or cancelled for whatsoever reason or cause.

11.7. This clause 11 shall survive the cancellation or termination of this Agreement for whatsoever reason or cause.

11.8. The Parties acknowledge that this clause entitles them to a fair hearing within a reasonable time by an independent and impartial tribunal agreed to by them.

12. Amendment

12.1. Any amendment to the terms regulating ASSA’s relationship, or cancellation / termination of ASSA’s mandate by mutual agreement, as well as any indulgence or accommodation to be granted by ASSA to the Client, must be in writing and signed by the client and one of ASSA’s directors, in order to be valid, enforceable and binding (this avoids any misunderstanding or uncertainty).

13. Payment

13.1. Where a dispute relates to ASSA’s charges, the client shall be obliged to make payment to ASSA of all the disbursements and interest, and an amount equivalent to 80% (eighty per centum) of the fees charged (including VAT thereon) by way on an interim payment, which payment shall be made by the client, and received by ASSA, without prejudice to the client’s rights or ASSA’s rights.

13.2. Once the matter is resolved, an adjustment will be effective and if there is an amount for which the client is liable to ASSA, the client will pay ASSA that amount together with mora interest from inception; if, however, the client’s payment to ASSA as hereinbefore set out represents an overpayment, ASSA shall immediately refund to the client such overpayment, together with mora interest, from the date of such payment until date of refund.

14. Acknowledgement

14.1. Should ASSA not hear from the client to the contrary in writing by 17h00 on the third calendar day following the date of the signature of any agreement, ASSA shall assume and accept that the client is satisfied with the matters referred to herein as read with the Agreement and agree to the basis upon which ASSA is to perform the work for and charge the client for any services or work in which ASSA may be instructed to perform on client’s request.

14.2. The matters referred to in this document constitute the basis and terms upon which ASSA is prepared to work for the client and ASSA cannot over emphasise the importance of any document and this Annexure.

14.3. ASSA urges the client to familiarise itself with its contents which comprise contractual terms regulating ASSA’s contractual relationship in addition to such terms (if any) as may be implied at law; the importance hereof must not be underestimated and if there is anything that the client is not certain of and which is herein contained, the client should not hesitate to discuss such issue with ASSA.

15. Interpretation

15.1. This document is an annexure to several documents which is e-mailed, faxed, posted or delivered by hand to the client.

15.2. It is deemed to be incorporated and to form an integral part of any negotiation, task, service or work. In the event of a conflict between any document and this annexure, the terms and conditions of the annexure shall apply.