33.1 Should any dispute of whatsoever nature arise between the Parties concerning this Agreement, the
Parties shall try to resolve the dispute by negotiation within 10 [ten] Business Days of such dispute
arising.
33.2 If the dispute has not been resolved by such negotiation, either of the Parties may refer the dispute
to AFSA and notify the other Party accordingly, which proceedings shall be held in Johannesburg.
33.3 Such dispute shall be finally resolved in accordance with the rules of AFSA by an arbitrator or
arbitrators appointed by AFSA.
33.4 This clause constitutes an irrevocable consent by the Parties to any proceedings in terms hereof,
and neither of the Parties shall be entitled to withdraw from the provisions of this clause or claim at
any such proceedings that it is not bound by this clause 33.
33.5 This clause 339 is severable from the rest of this Agreement and shall remain in effect even if this
Agreement is terminated for any reason.
33.6 This clause 339 shall not preclude either Party from seeking urgent relief in a court of appropriate
jurisdiction, where grounds for urgency exist.
34 addresses for notices
34.1 The Parties to this Agreement select the physical addresses and fax numbers, as detailed hereafter,
as their respective addresses for giving or sending any notice provided for or required in terms of
this Agreement, provided that either Party shall be entitled to substitute such other address or fax
number, as may be, by written notice to the other:
a) Transnet
(i) For legal notices: Attention: Legal Department
Azwitamisi Mudau
Executive Manager: Legal Services
Cnr Lynette and Koedoespoort
Koedoespoort Road
Pretoria
E-mail: [email protected]
Attention: Transnet Engineering Legal Department
(ii) For commercial notices: Attention: Contracts Department
Mpho Ntjoboko
[email protected]
Attention: Contracts Department
b) The Supplier
(i) For legal notices: Attention:............................................
Tel: .....................................................
Email: ..................................................
(ii) For commercial notices: Attention: ...........................................
Tel: .................................................
Email: ...................................................
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Agreement between Transnet Engineering and
34.2 Any notice shall be addressed to a Party at its physical address, or delivered by hand, or sent by fax
or email.
34.3 Any notice shall be deemed to have been given:
a) if hand delivered, on the day of delivery;
b) if faxed, on the date and time of sending of such fax, as evidenced by a fax confirmation
printout, provided that such notice shall be confirmed by prepaid registered post on the date
of dispatch of such fax, or, should no postal facilities be available on that date, on the next
Business Day; or
c) if sent by email, on the date and time received, provided that such notice shall be confirmed
by prepaid registered post on the date of dispatch of such email, or, should no postal
facilities be available on that date, on the next Business Day.
35 whole and only agreement
35.1 The Parties hereby confirm that this Agreement constitutes the whole and only agreement between
them with regard to the subject matter of this Agreement.
35.2 The Parties hereby confirm that this Agreement replaces all other agreements which exist or may
have existed in any form whatsoever between them, with regard to the subject matter dealt with in
this Agreement, any annexures appended hereto and the Schedule of Requirements/Work Order.
36 amendment and change control
36.1 Any amendment or change of any nature made to this Agreement and the Schedule of
Requirements thereof shall only be valid if it is in writing, signed by both Parties and added to this
Agreement as an addendum hereto. In this regard a Change Notice must first be defined and issued
by the requesting Party. A Change Notice Response must then be issued by responding Party. A
formal approval of the Change Request will then trigger the issue of the addendum to this
Agreement.
36.2 In the event the Parties cannot agree upon changes, the Parties shall in good faith seek to agree
any proposed changes using the dispute resolution procedures in clause 339 [DisputeResolution].
37 general
37.1 Governing Law
This Agreement is exclusively governed by and construed in accordance with the laws of the
Republic of South Africa and is subject to the jurisdiction of the courts of the Republic of South
Africa.
37.2 Change of Law
In this Agreement, unless the context otherwise requires, references to a statutory provision include
references to that statutory provision as from time to time amended, extended or re-enacted and
any regulations made under it, provided that in the event that the amendment, extension or re-
enactment of any statutory provision or introduction of any new statutory provision has a material
impact on the obligations of either Party, the Parties will negotiate in good faith to agree such
amendments to this Agreement as may be appropriate in the circumstances. If, within a reasonable
period of time, the Supplier/Service Provider and Transnet cannot reach agreement on the nature of
the changes required or on modification of Prices, delivery schedules, warranties, or other terms
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
Agreement between Transnet Engineering and
and conditions, either Party may seek to have the matter determined in accordance with clause 339
[DisputeResolution] above.
37.3 Counterparts
This Agreement may be signed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. Either Party may enter into this Agreement by signing any
such counterpart.
38 database of restricted supplier
The process of restriction is used to exclude a company/person from conducting future business with
Transnet and other organs of state for a specified period. No Bid shall be awarded to a Bidder whose name
(or any of its members, directors, partners or trustees) appear on the Register of Tender Defaulters kept
by National Treasury, or who have been placed on National Treasury’s List of Restricted Suppliers. Transnet
reserves the right to withdraw an award, or cancel a contract concluded with a Bidder should it be
established, at any time, that a bidder has been restricted with National Treasury by another government
institution.
Thus signed by the Parties and witnessed on the following dates and at the following places:
For and on behalf of For and on behalf of
TRANSNET soc ltd
duly authorised hereto duly authorised hereto
Name: Name:
Position: Position:
Signature: Signature:
Date: Date:
Place: Place:
As witness: as witness:
Name: Name:
Signature: Signature:
As witness: as witness:
Name: Name:
Signature: Signature:
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
1 introduction ................................................................................................................................ 3
2 definitions .................................................................................................................................... 3
3 interpretation ............................................................................................................................. 6
4 nature and scope ......................................................................................................................... 6
5 authority of parties ................................................................................................................... 7
6 duration/term and cancellation ............................................................................................... 7
7 risk management .......................................................................................................................... 8
8 transnet’s obligations................................................................................................................ 8
9 general obligations of the supplier/service provider ........................................................... 8
10 subcontracting .......................................................................................................................... 10
11 payment to sub-contractors .................................................................................................... 11
12 b-bbee and socio-economic obligations .................................................................................. 11
13 penalties ..................................................................................................................................... 12
14 invoices and payment................................................................................................................. 14
15 price adjustments ...................................................................................................................... 15
16 warranties applicable to goods .............................................................................................. 16
17 third party indemnity ............................................................................................................... 16
18 inspection applicable to goods ............................................................................................... 16
19 defective goods ......................................................................................................................... 17
20 total or partial failure to perform ....................................................................................... 18
21 non conformance of goods ...................................................................................................... 18
22 rights on cancellation ............................................................................................................. 18
23 breach and termination ............................................................................................................ 19
24 cessions and assignments as per nt instruction note /2023 ............................... 20
25 force majeure ............................................................................................................................. 20
26 protection of personal information ...................................................................................... 20
27 confidentiality .......................................................................................................................... 22
28 insurances .................................................................................................................................. 24
29 limitation of liability ............................................................................................................... 25
30 intellectual property rights ................................................................................................... 25
31 non-waiver .................................................................................................................................. 27
32 partial invalidity ....................................................................................................................... 27
33 dispute resolution .................................................................................................................... 28
34 addresses for notices ............................................................................................................... 28
35 whole and only agreement ....................................................................................................... 29
36 amendment and change control .............................................................................................. 29
37 general ........................................................................................................................................ 29
38 database of restricted supplier .............................................................................................. 30
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
meaning assigned thereto in this clause, except where the context clearly requires otherwise:
2.1 AFSA means the Arbitration Foundation of South Africa;
2.2 Agreement means this Agreement and its associated schedules and/or annexures and/or
appendices, and/or schedules, including the Schedule of Requirements/Work Orders, the technical
specifications for the Goods and such special conditions as shall apply to this Agreement, together
with the General Tender Conditions and any additional provisions in the associated bid documents
tendered by the Supplier [as agreed, in writing, between the Parties], which collectively and
exclusively govern the supply of Goods and provision of ancillary Services by the Supplier to
Transnet;
2.3 Assignment refers to the transfer of rights and obligations in a contract from an assigner to an
assignee.
2.4 Background Intellectual Property means all Intellectual Property introduced and required by
either Party to give effect to their obligations under this Agreement owned in whole or in part by or
licensed to either Party or their affiliates prior to the Commencement Date or developed after the
Commencement Date otherwise pursuant to this Agreement;
2.5 Business Day(s) means Mondays to Fridays between 07:30 and 16:00, excluding public holidays
as proclaimed in South Africa;
2.6 Cession refers to the transfer of only the rights a service provider has in terms of a contract from it
to a third party.
2.7 Commencement Date means .........................., notwithstanding the signature date of this
Agreement;
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2.8 Confidential Information means any information or other data, whether in written, oral, graphic
or in any other form such as in documents, papers, memoranda, correspondence, notebooks,
reports, drawings, diagrams, discs, articles, samples, test results, prototypes, designs, plans,
formulae, patents, or inventor’s certificates, which a Party discloses or provides to the other Party
[intentionally or unintentionally, or as a result of one Party permitting the representative of the
other Party to visit any of its premises], or which otherwise becomes known to a Party, and which is
not in the public domain and includes, without limiting the generality of the term:
a) information relating to methods of operation, data and plans of the disclosing Party;
b) the contents of this Agreement;
c) private and personal details of employees or clients of the disclosing Party or any other
person where an onus rests on the disclosing Party to maintain the confidentiality of such
information;
d) any information disclosed by either Party and which is clearly marked as being confidential or
secret;
e) information relating to the strategic objectives and planning of the disclosing Party relating to
its existing and planned future business activities;
f) information relating to the past, present and future research and development of the
disclosing Party;
g) information relating to the business activities, business relationships, products, services,
customers, clients and Subcontractors of the disclosing Party where an onus rests on the
disclosing Party to maintain the confidentiality of such information;
h) information contained in the software and associated material and documentation belonging
to the disclosing Party;
i) technical and scientific information, Know-How and trade secrets of a disclosing Party
including inventions, applications and processes;
j) Copyright works;
k) commercial, financial and marketing information;
l) data concerning architecture, demonstrations, tools and techniques, processes, machinery
and equipment of the disclosing Party;
m) plans, designs, concepts, drawings, functional and technical requirements and specifications
of the disclosing Party;
n) information concerning faults or defects in Goods, equipment, hardware or software or the
incidence of such faults or defects; and
o) information concerning the charges, fees and/or costs of the disclosing Party or its
authorised Subcontractors, or their methods, practices or service performance levels actually
achieved;
2.9 Copyright means the right in expressions, procedures, methods of operations or mathematical
concepts, computer program codes, compilations of data or other material, literary works, musical
works, artistic works, sound recordings, broadcasts, program carrying signals, published editions,
photographic works, or cinematographic works of the copyright owner to do or to authorise the
doing of certain acts specified in respect of the different categories of works;
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
the designated Incoterm as stipulated in Schedule 1 hereto. Further details of the Incoterm
[purchase terms] for this Agreement, if applicable, can be viewed at the International Business
Training website - http://www.i-b-t.net/incoterms.html;
2.16 Intellectual Property means Patents, Designs, Know-How, Copyright and Trade Marks and all
rights having equivalent or similar effect which may exist anywhere in the world and includes all
future additions and improvements to the Intellectual Property;
2.17 Know-How means all Confidential Information of whatever nature relating to the Intellectual
Transnet’s field of technology, including technical information, processing or manufacturing
techniques, Designs, specifications, formulae, systems, processes, information concerning materials
and marketing and business information in general;
2.18 Parties mean the Parties to this Agreement together with their subsidiaries, divisions, business
units, successors-in-title and assigns;
2.19 Party means either one of these Parties;
2.20 Patents mean registered Patents and Patent applications, once the latter have proceeded to grant,
and includes a right granted for any inventions, products or processes in all fields of technology;
2.21 Permitted Purpose means any activity or process to be undertaken or supervised by a Staff
member of one Party during the term of this Agreement, for which purpose authorised disclosure of
the other Party’s Confidential Information or Intellectual Property is a prerequisite in order to enable
such activity or process to be accomplished;
2.22 Price(s) means the agreed Price(s) for the Goods to be purchased from the Supplier by Transnet,
as detailed in the Schedule of Requirements, issued in accordance with this Agreement, as amended
by mutual agreement between the Parties and in accordance with the terms and conditions in this
Agreement from time to time;
2.23 Purchase Order(s) means official orders issued by an operating division of Transnet to the
Supplier for the supply of Goods or Services;
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for any purpose or in any form whatsoever.
5.2 Neither Party shall be entitled to, or have the power or authority to:
a) enter into an agreement in the name of the other; or
b) give any warranty, representation or undertaking on the other's behalf; or
c) create any liability against the other or bind the other’s credit in any way or for any purpose
whatsoever.
6.2 Notwithstanding clause 239 [Breach and Termination], either Party may cancel this Agreement
without cause by giving 30 [thirty] calendar days prior written notice thereof to the other Party,
provided that in such instance, this Agreement will nevertheless be applicable in respect of all
information is subject to any internal security rules and requirements and subject to the observance
by the Supplier/Service Provider of its confidentiality obligations under this Agreement.
8.2 The Supplier/Service Provider shall give Transnet reasonable notice of any information it requires.
8.3 Transnet agrees to provide the Supplier/Service Provider or its Personnel such access to and use of
its facilities as is necessary to allow the Supplier/Service Provider to perform its obligations under
this Agreement.
fail to present Transnet with such renewals as they become due, Transnet shall be entitled,
in addition to any other rights and remedies that it may have in terms of the Agreement, to
terminate this Agreement forthwith without any liability and without prejudice to any claims
which Transnet may have for damages against the Supplier/Service Provider.
9.2 The Supplier/Service Provider acknowledges and agrees that it shall at all times:
a) render the supply of the Goods/Services and ancillary Services (if applicable) and perform all
its duties with honesty and integrity;
b) communicate openly and honestly with Transnet regarding the supply and performance of
the Goods/Services and demonstrate a commitment to effecting the supply and performing
ancillary Services timeously, efficiently and at least to the required standards;
c) endeavour to provide the highest possible standards of service and workmanship, with a
reasonable degree of care and diligence;
d) use its best endeavours and make every diligent effort to meet agreed deadlines;
e) treat its own Staff, as well as all Transnet’s Staff, with fairness and courtesy and respect for
their human rights;
f) practice and promote its own internal policies aimed at prohibiting and preventing unfair
discrimination;
g) treat all enquiries from Transnet in connection with the supply of the Goods/Services and/or
ancillary Services with courtesy and respond to all enquiries promptly and efficiently. Where
the Supplier/Service Provider is unable to comply with the provisions of this clause, the
j) not accept or offer, nor allow, induce or promote the acceptance or offering of any gratuity,
enticement, incentive or gift that could reasonably be regarded as bribery or an attempt to
otherwise exert undue influence over the recipient;
k) not mislead Transnet or its officers, employees and stakeholders, whether by act or
omission;
l) not otherwise act in an unethical manner or do anything which could reasonably be expected
to damage or tarnish Transnet’s reputation or business image;
m) immediately report to Transnet any unethical, fraudulent or otherwise unlawful conduct of
which it becomes aware in connection with Transnet or the supply of Goods/Services or
ancillary Services to Transnet;
n) ensure that at all times, during the currency of this Agreement, it complies with all
obligations and commitments in terms of the provisions of the Income Tax Act, No , the VAT Act or any other tax legislation relating to their liability for Income Tax, VAT,
Clearance Compliance, for the duration of this Agreement;
o) not victimise, harass or discriminate against any employee of either Party to this Agreement
or any applicant for employment with either Party to this Agreement due to their gender,
race, disability, age, religious belief, sexual orientation or part-time status. This provision
applies, but is not limited to employment, upgrading, work environment, demotion, transfer,
recruitment, recruitment advertising, termination of employment, rates of pay or other forms
of compensation and selection for training.
p) shall ensure that its employees, agents and Subcontractors will not breach any applicable
discrimination legislation and any amendments and re-enactments thereof.
9.3 In compliance with the National Railway Safety Regulator Act, , as may be amended from
time to time, the Supplier shall ensure that the Goods/Services and ancillary Services, to be supplied
to Transnet under the terms and conditions of this Agreement, comply fully with the Specifications
as set forth in Schedule 1 hereto, and shall thereby adhere [as applicable] to railway safety
requirements and/or regulations. Permission for the engagement of a Subcontractor by the Supplier,
as applicable, shall be subject to a review of the capability of the proposed Subcontractor to comply
with the specified railway safety requirements and/or regulations. The Supplier and/or its
11.1 Transnet reserves the right, in its sole discretion, to make payment directly to the sub-contractor of
the Supplier, subject to the following conditions:
a) Receipt of an undisputed invoice from the sub-contractor; and
b) Receipt of written confirmation from the Supplier Provider that the amounts claimed by the
sub-contractor are correct and that the services for which the sub-contractor has requested
payment were rendered to the satisfaction of the Supplier, against the required standards.
11.2 Nothing contained in this clause must be interpreted as bestowing on any sub-contractor a right or
legitimate expectation to be paid directly by Transnet. Furthermore, this clause does not bestow any
right or legitimate expectation on the Supplier to demand that Transnet pay its sub-contractor
directly. The decision to pay any sub-contractor directly, remains that of Transnet alone.
11.3 The Supplier remains liable for its contractual obligations under the Agreement, including all services
rendered by the sub-contractor.
11.4 This clause does not establish any contractual relationship between Transnet and any sub-contractor
of the Supplier, whatsoever.
13.1 Penalties for Non-compliance to Service Level Agreement
The Supplier guarantees that it will achieve a 95% [ninety-five per cent] service level on the
following measures:
a) Random checks on compliance with quality/quantity/specifications
b) On-time delivery
- If the supplier does not achieve this level as an average over each quarter, Transnet will
receive a 1.5% [one and a half per cent] rebate on quarterly sales payable in the next
quarter
- The Supplier must provide a telephone number for customer service calls. Failure of the
cancel the contract in whole, without penalty to Transnet, giving 30 [thirty] calendar days’
notice to the Supplier of its intention to do so.
13.2 Non-compliance penalties for subcontracting
a) Breach of subcontracting obligations provides Transnet cause to terminate the contract in
certain cases where there is a material Non-compliance.
b) If the Supplier fails to achieve its subcontracting commitments as per their bid submission
(“a Non-Compliance”), the Supplier shall pay a Non-Compliance penalty (“Non-compliance
Penalty”) to Transnet in respect of such Non-compliance.
c) Such penalty shall be calculated based on the difference in value between the committed
and delivered subcontracting value (i.e. 100% of the undelivered subcontracting value) plus
an additional 10% (ten per cent) of such difference.
e) A Non-compliance Penalty Certificate shall be prima facie proof of the matters to which it
relates. If the Supplier disputes any of the amounts set out in a Non-compliance Penalty
Certificate:
- the dispute shall be resolved in accordance with the provisions of the Agreement; and
- if pursuant to that referral, it is determined that the Supplier owes any amount to
such amount to Transnet within 10 (ten) Business Days of the determination made
pursuant to such determination and an accompanying valid Tax Invoice.
i) The Non Compliance Penalties set forth in this Clause are stated exclusive of VAT. Any VAT
payable on Non Compliance Penalties will be for the account of the Supplier.
13.3 Non-compliance penalties for Job Creation
a) Breach of job creation obligations provides Transnet cause to terminate the contract in
certain cases where there is a material Non-compliance.
b) If the Supplier fails to achieve its job creation commitments as per their bid submission (“a
Non-Compliance”), the Supplier shall pay a Non-Compliance penalty (“Non-compliance
Penalty”) to Transnet in respect of such Non-compliance.
c) Such penalty shall be calculated based on the difference between the committed and
delivered jobs. For every job not created, a penalty of 2% of the contract value will be
applied.
d) If any Non-compliance Penalty arises, the Supplier Development Manager shall issue a Non-
compliance Penalty Certificate 90 business days before the expiry of the contract indicating
the Non-compliance Penalties which have accrued during that period.
e) A Non-compliance Penalty Certificate shall be prima facie proof of the matters to which it
relates. If the Supplier disputes any of the amounts set out in a Non-compliance Penalty
Certificate:
- the dispute shall be resolved in accordance with the provisions of the Agreement; and
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such amount to Transnet within 10 (ten) Business Days of the determination made
pursuant to such determination and an accompanying valid Tax Invoice.
14.2 Transnet shall pay such amounts to the Supplier upon receipt of a valid and undisputed Tax
appended hereto, once the valid and undisputed Tax Invoices or such portions of the Tax Invoices
which are valid and undisputed become due and payable to the Supplier for the delivery of the
Goods/Services ordered, in terms of clause 14.5 below.
14.3 Transnet may, pending an investigation, withhold any payments to the Supplier, in the case where
irregular expenditure has been identified in the particular contract and that there is reasonable
suspicion that the Supplier is involved or was aware that the contract transgressed any legislation.
14.4 All Prices set out in this Agreement and the Schedule of Requirements hereto are to be indicated
inclusive and exclusive of VAT, which will be payable at the applicable rate in ZAR.
14.5 Unless otherwise provided for in the Schedule of Requirements appended to this Agreement, Tax
end statement shall be made by Transnet within 30 [thirty] calendar days after date of receipt by
Transnet of the Supplier’s statement together with the relevant valid and undisputed Tax
Invoice(s) and supporting documentation.
14.6 Where the payment of any Tax Invoice, or any part of a Tax Invoice which is not in dispute, is not
made in accordance with this clause, the Supplier shall be entitled to charge interest on the
outstanding amount, at The Standard Bank of South Africa’s prime rate of interest in force, for the
period from the due date of payment until the outstanding amount is paid.
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
times on request and such records may, at Transnet's option, be audited by Transnet or its
designated representatives.
15.4 Should Transnet and the Supplier fail to reach an agreement on Price for the successive period,
either Party shall be entitled to submit this matter to dispute resolution in accordance with clause
39 of the Master Agreement [Dispute Resolution].
15.5 If during the period of this Agreement Transnet can purchase similar Goods of a like quality from
another supplier at a total delivered cost to a Transnet facility that is lower than the total delivered
cost of the Goods purchased hereunder from the Supplier, Transnet may notify the Supplier of
such total delivered cost and the Supplier shall have an opportunity to adjust the Price of the
to Transnet, within 30 [thirty] calendar days of such notice. If the Supplier fails to do so or
cannot legally do so, Transnet may (i) purchase the Goods from such other supplier in which case
the obligations, including, but not limited to, any purchase and sale requirements and/or
commitments, if any, of Transnet and the Supplier hereunder shall be reduced accordingly; (ii)
terminate this Agreement without any penalty, liability or further obligation; or (iii) continue
purchases under this Agreement.
15.6 If during the period of this Agreement the Supplier sells any materials which are the same as,
equivalent to, or substantially similar to the Goods herein, at a total delivered cost to a third party
lower than the total delivered cost to a Transnet facility, then the Supplier has an opportunity to
adjust its Price for the Goods purchased hereunder within 30 [thirty] calendar days so that the
do so or cannot legally do so, Transnet may (i) purchase the Goods/Services from any other such
supplier, in which case the obligations, including, but not limited to, any purchase and sale
requirements and/or commitments, if any, of Transnet and the Supplier hereunder shall be
reduced accordingly; or (ii) terminate this Agreement without any penalty, liability or further
obligation. Within 30 [thirty] calendar days of the Commencement Date of this Agreement or at
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
16.1 pursuant to clause 9.3 [General Obligations of the Supplier], the Goods will be manufactured in
accordance with the specifications appended hereto at Schedule 1, or the manufacturer’s
specifications, as agreed in writing by both Parties;
16.2 the execution and performance of this Agreement by the Supplier does not infringe any rights of a
third party or breach any obligation of the Supplier to any third party; and
16.3 it has taken all reasonable precautions to ensure that, in the event of a disaster, the impact of
such disaster on the ability of the Supplier to comply with its obligations under this Agreement will
be reduced to the greatest extent possible, and that the Supplier shall ensure that it has
appropriate, tested and documented recovery arrangements in place.
the port of shipment, as specified in this Agreement, only as regards outward condition of
packages and Transnet retains the right to reject the Goods supplied, on or after arrival at the
place to which they are consigned, or after they have been placed in use in South Africa, should
they be found defective.
19.2 If Goods are rejected owing to latent defects becoming apparent during machining operations or
other preparation necessary on the part of Transnet before they can be put into use, the Supplier
shall bear all expenses incurred by Transnet in carrying out such necessary operations.
19.3 If such Goods are rejected, the Supplier will pay the following costs:
a) for Goods purchased in South Africa on an ex works basis, the cost of transport from the
Supplier’s works in South Africa to the named destination where the Goods have been
rejected by Transnet, plus handling charges and storage, if leviable; or
b) for Goods manufactured overseas, the Supplier shall pay all replacement costs including the
overseas inland transport cost, freight and insurance charges incurred plus railage or other
inland transport costs from the South African port to the place where the Goods have been
rejected by Transnet, including handling charges, storage, landing charges, customs duty
and surcharges, if leviable.
19.4 If Transnet requires rejected Goods to be replaced, the Supplier shall, when called upon to do so,
arrange prompt replacement of the Goods within the prescribed manufacturing lead times for such
Goods, as indicated in Schedule 1.
19.5 If Goods are found to be defective but the defects are, in the opinion of Transnet, not of so
serious a nature as to warrant total rejection of the Goods, the Supplier shall, when called upon to
do so, remedy or make good such defects at its own cost, or Transnet may remedy or make good
such defects at the request of the Supplier and recover from the Supplier all costs or expenses
reasonably incurred by it in doing so.
19.6 Should the Supplier fail, when called upon to remedy or make good such defects within a
reasonable time or to request Transnet to do so, Transnet may proceed to remedy or make good
such defects and thereafter recover from the Supplier all such costs and expenses as
aforementioned.
19.7 Any amount recoverable from the Supplier in terms of this clause may, without prejudice to any
other legal remedies available to Transnet, be deducted in whole or in part from any monies in the
hands of Transnet which are due for payment to the Supplier.
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20.1 In the case of Goods to be specially manufactured for it, if Transnet at any time ascertains that:
a) no manufacturing of the Goods specified in a Purchase Order has commenced and there is
little or no prospect, in Transnet’s opinion, that manufacturing will commence within a
reasonable time; or
b) delivery of any of the Goods is being or is likely to be delayed beyond the promised delivery
date(s), and there is little or no prospect of the Purchase Order(s) being carried out within
reasonable adherence to the promised delivery rate(s) or time(s),
then Transnet may, irrespective of the cause of the delay, by notice to the Supplier, cancel as from
a future date specified in such notice the whole or any part of this Agreement or Purchase Order in
respect of which the Goods to be supplied have not been completed by that date, without incurring
any liability by reason of such cancellation except as provided in this clause.
20.2 The Supplier shall thereupon, as soon as possible after such date, deliver to Transnet the Goods [if
any] already completed, and payment for the part performance shall be made on a pro rata basis,
provided the uncompleted part is not an integral or essential part of the completed Goods/Services.
23.1 Termination in accordance with clause 6 [Term and Cancellation] shall not prejudice or affect any
right of action or remedy which shall have accrued or shall thereafter accrue to either Party and all
provisions which are to survive this Agreement or impliedly do so shall remain in force and in effect.
23.2 On termination of this Agreement or a Work Order, the Service Provider will immediately deliver up,
and procure that its Personnel will immediately deliver up to Transnet, all Deliverables and property
belonging to Transnet [or, in the event of termination of a Work Order, such as is relevant to that
Work Order] which may be in the possession of, or under the control of the Service Provider, and
certify to Transnet in writing that this has been done.
23.3 To the extent that any of the Deliverables and property referred to in clause 23.2 above are in
electronic form and contained on non-detachable storage devices, the Service Provider will provide
delete copies so held.
23.4 In the event that this Agreement is terminated by the Service Provider under clause Error!
Reference source not found. [Term and Cancellation], or in the event that a Work Order is
terminated by Transnet under clause Error! Reference source not found.9 [Breach and
Consequences of Termination], Transnet will pay to the Service Provider all outstanding Fees
[apportioned on a pro rata basis] relating to the work undertaken by the Service Provider up until
the date of such termination. Transnet will also pay the costs of any goods and materials ordered by
the Service Provider in relation to the such work for which the Service Provider has paid or is legally
obliged to pay, in which case, on delivery of such goods or materials, the Service Provider will
promptly deliver such goods and materials to Transnet or as it may direct.
23.5 If either Party [the Defaulting Party] commits a material breach of this Agreement and fails to
remedy such breach within 30 [thirty] calendar days of written notice thereof, the other Party
[hereinafter the Aggrieved Party], shall be entitled, in addition to any other rights and remedies
that it may have in terms of this Agreement, to terminate this Agreement forthwith without any
liability and without prejudice to any claims which the Aggrieved Party may have for damages
against the Defaulting Party.
23.6 Either Party may terminate this Agreement forthwith by notice in writing to the other Party when
the other Party is unable to pay its debts as they fall due or commits any act or omission which
would be an act of insolvency in terms of the Insolvency Act, [as amended from time to
time], or if any action, application or proceeding is made with regard to it for:
a) a voluntary arrangement or composition or reconstruction of its debts;
b) its winding-up or dissolution;
c) the appointment of a liquidator, trustee, receiver, administrative receiver or similar officer;
d) any similar action, application or proceeding in any jurisdiction to which it is subject.
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
whether by ownership of shares, membership of the board of directors, agreement or otherwise.
23.8 Notwithstanding this clause 239, Transnet may cancel this Agreementwithout cause by giving 30
[thirty] calendar days prior written notice thereof to the Supplier/Service Provider, or
23.9 The provisions of clauses 2 [Definitions], 162 [Warranties], 228 [Rights on Cancellation], 263
[Confidentiality], 295 [Limitation of Liability], 36 [Intellectual Property Rights], 339 [Dispute
Resolution]and 37.1 [GoverningLaw]shall survive termination or expiry of this Agreement.
24 cessions and assignments as per nt instruction note /2023
24.1 The Supplier is not allowed to cede its rights for payment in terms of this Agreement without prior
written approval from Transnet. Cession shall only be applicable as follows:
a) Cession must only be applicable to the transfer of right to payment for goods delivered by a
Supplier to an FSP or State Institutions;
b) The written request for cession must be by the Supplier and not a third party; and
c) The written request by the Supplier must be accompanied by the cession agreement.
24.2 The Supplier is prohibited from transferring its rights and obligations to perform under this contract.
Assignments are against the principles of section 217 of the Constitution mainly, fairness,
transparency and competitiveness.
25.1 Neither Party shall have any claim against the other Party arising from any failure or delay in the
performance of any obligation of either Party under this Agreement caused by an act of force
majeure such as acts of God, fire, flood, war, lockout, government action, laws or regulations,
terrorism or civil disturbance, defaults or other circumstances or factors beyond the reasonable
control of either Party, and to the extent that the performance of obligations of either Party
hereunder is delayed by virtue of the aforegoing, any period stipulated for any such performance
shall be reasonably extended. Transnet may however rely on strikes, industrial dispute and riots as
a ground of force majeure.
25.2 Each Party will take all reasonable steps by whatever lawful means that are available to resume full
performance as soon as practicable and will seek agreement to modification of the relevant
provisions of this Agreement in order to accommodate the new circumstances caused by the act of
forcemajeure. If a Party fails to agree with such modifications proposed by the other Party within
90 [ninety] calendar days of the act of force majeure first occurring, either Party may thereafter
terminate this Agreement with immediate notice.
requested the Parties to delete all instances of their personal information. The information will be
destroyed or de-identified in such a manner that it cannot be reconstructed to its original form,
linking it to any particular individual or organisation.
26.6 Personal Information security breach:
a) Each Party shall notify the other party in writing as soon as possible after it becomes aware of
or suspects any loss, unauthorised access or unlawful use of any personal information and shall,
at its own cost, take all necessary remedial steps to mitigate the extent of the loss or
compromise of personal information and to restore the integrity of the affected personal
information as quickly as is possible. The Parties shall also be required to provide each other
with details of the persons affected by the compromise and the nature and extent of the
compromise, including details of the identity of the unauthorised person who may have
accessed or acquired the personal information.
b) The Parties shall provide on-going updates on the progress in resolving the compromise at
reasonable intervals until such time as the compromise is resolved.
c) Where required, the Parties must notify the South African Police Service; and/or the State
seeking appropriate relief or the instituting of a defensive action to protect the Confidential
Information concerned;
b) not to use, exploit, permit the use of, directly or indirectly, or in any other manner
whatsoever apply the Confidential Information disclosed to it as a result of this Agreement,
for any purpose whatsoever other than for the purpose for which it is disclosed or otherwise
than in strict compliance with the provisions in this Agreement;
c) not to make any notes, sketches, drawings, photographs or copies of any kind of any part of
the disclosed Confidential Information without the prior written consent of such other Party,
except when reasonably necessary for the purpose of this Agreement, in which case such
copies shall be regarded as Confidential Information;
d) not to de-compile, disassemble or reverse engineer any composition, compilation, concept
application, item, component de-compilation, including software or hardware disclosed and
shall not analyse any sample provided by Transnet, or otherwise determine the composition
or structure or cause to permit these tasks to be carried out except in the performance of its
obligations pursuant to this Agreement;
e) not to exercise less care to safeguard Transnet Confidential Information than the Party
exercises in safeguarding its own competitive, sensitive or Confidential Information;
f) Confidential Information disclosed by either Party to the other or by either Party to any other
party used by such party in the performance of this Agreement, shall be dealt with as
“restricted” or shall be dealt with according to any other appropriate level of confidentiality
relevant to the nature of the information concerned, agreed between the Parties concerned
and stipulated in writing for such information in such cases;
g) the Parties shall not make or permit to be made by any other person subject to their control,
any public statements or issue press releases or disclose Confidential Information with
regard to any matter related to this Agreement, unless written authorisation to do so has
first been obtained from the Party first disclosing such information;
h) each Party shall be entitled to disclose such aspects of Confidential Information as may be
relevant to one or more technically qualified employees or consultants of the Party who are
required in the course of their duties to receive the Confidential Information for the
interest therein, and then only to the extent necessary for the Permitted Purpose, and is
informed by the Party of the confidential nature of the Confidential Information and the
obligations of the confidentiality to which such disclosure is subject and the Party shall
ensure such employees or consultants honour such obligations;
i) each Party shall notify the other Party of the name of each person or entity to whom any
Confidential Information has been disclosed as soon as practicable after such disclosure;
j) each Party shall ensure that any person or entity to which it discloses Confidential
27.2 The duties and obligations with regard to Confidential Information in this clause 273 shall not apply
where:
a) a Party can demonstrate that such information is already in the public domain or becomes
available to the public through no breach of this Agreement by that Party, or its Staff; or
b) was rightfully in a Party’s possession prior to receipt from the other Party, as proven by the
first-mentioned Party’s written records, without an infringement of an obligation or duty of
confidentiality; or
c) can be proved to have been rightfully received by a Party from a third party without a breach
of a duty or obligation of confidentiality; or
d) is independently developed by a Party as proven by its written records.
27.3 This clause 273 shall survive termination for any reason of this Agreement and shall remain in force
and effect from the Commencement Date of this Agreement and 5 [five] years after the termination
of this Agreement. Upon termination of this Agreement, all documentation furnished to the
28.1 Without limiting the liability of the Supplier under this Agreement, the Supplier shall take out
insurance in respect of all risks for which it is prudent for the Supplier/Service Provider to insure
against, including any liability it may have as a result of its activities under this Agreement for theft,
destruction, death or injury to any person and damage to property. The level of insurance will be
kept under review by Transnet, on an annual basis, to ensure its adequacy, provided that any
variation to the level of such insurance shall be entirely at the discretion of the Supplier/Service
28.2 The Supplier/Service Provider shall arrange insurance with reputable insurers and will produce to
Transnet evidence of the existence of the policies on an annual basis within 30 [thirty] calendar
days after date of policy renewals.
28.3 Subject to clause 28.4 below, if the Supplier/Service Provider fails to effect adequate insurance
under this clause 284, it shall notify Transnet in writing as soon as it becomes aware of the
reduction or inadequate cover and Transnet may arrange or purchase such insurance on behalf of
the Supplier/Service Provider. The Supplier/Service Provider shall promptly reimburse Transnet for
any premiums paid provided such insurance protects the Supplier/Service Provider’s liability.
Supplier/Service Provider’s liability.
28.4 In the event that the Supplier/Service Provider receives written notice from its insurers advising of
the termination of its insurance cover referred to in clause 28.1 above or if the insurance ceases to
be available upon commercially reasonable terms, the Supplier/Service Provider shall immediately
notify Transnet in writing of such termination and/or unavailability, whereafter either the
29.1 The Supplier/Service Provider’s liability under this clause 295 shall be in addition to any warranty or
condition of any kind, express or implied by law or otherwise, relating to the Goods/Services or
ancillary Services, including the quality of the Goods/Services or ancillary Services or any materials
delivered pursuant to this Agreement.
29.2 Neither Party excludes or limits liability to the other Party for:
a) death or personal injury caused by its negligence, [including its employees’, agents’ or
Subcontractors’ negligence]; or
b) fraud or theft.
29.3 The Supplier/Service Provider shall indemnify and keep Transnet indemnified from and against
liability for damage to any Transnet property [whether tangible or intangible] or any other loss,
costs or damage suffered by Transnet to the extent that it results from any act of or omission by
the Supplier/Service Provider or its Personnel in connection with this Agreement. The
Supplier/Service Provider’s liability arising out of this clause 29.3 shall be limited to direct damages.
29.4 Subject always to clauses 29.1 and 29.2 above, the liability of either the Supplier/Service Provider or
breach of contract or otherwise, for direct loss or damage arising out of each Default or series of
related Defaults shall not exceed 100% [one hundred per cent] of the Fees paid under the schedule
or Work Order to which the Default(s) relates.
29.5 Subject to clauses 29.1 to 29.4 above, in no event shall either Party be liable to the other for
indirect or consequential loss or damage or including indirect or consequential loss of profits,
business, revenue, goodwill or anticipated savings of an indirect nature or loss or damage incurred
by the other Party as a result of third party claims.
29.6 If for any reason the exclusion of liability in clause 29.5 above is void or unenforceable, either
Party’s total liability for all loss or damage under this Agreement shall be as provided in clause 29.3
above.
29.7 Nothing in this clause 295 shall be taken as limiting the liability of the Parties in respect of clauses
263 [Confidentiality]and 306 [IntellectualPropertyRights].
Provider’s Background Intellectual Property shall remain vested in the Supplier/Service
b) Transnet shall grant to the Supplier/Service Provider an irrevocable, royalty free, non-
exclusive licence to use Transnet’s Background Intellectual Property only for the Permitted
c) The Supplier/Service Provider shall grant to Transnet an irrevocable, royalty free, non-
exclusive licence to use the Supplier/Service Provider’s Background Intellectual Property for
the Permitted Purpose. This licence shall not permit Transnet to sub-license to other parties.
d) The Supplier/Service Provider shall grant Transnet access to the Supplier/Service Provider’s
30.2 Title to Intellectual Property
a) All right, title and interest in and to Foreground Intellectual Property prepared, conceived or
developed by the Supplier/Service Provider, its researchers, agents and employees shall vest
in Transnet and the Supplier/Service Provider acknowledges that it has no claim of any
nature in and to the Foreground Intellectual Property. The Supplier/Service Provider shall not
at any time during or after the termination or cancellation of this Agreement dispute the
validity or enforceability of such Foreground Intellectual Property, or cause to be done any
act or anything contesting or in any way impairing or tending to impair any part of that right,
title and interest to any of the Foreground Intellectual Property and shall not counsel or
assist any person to do so.
b) Transnet shall be entitled to seek protection in respect of the Foreground Intellectual
protection of the Foreground Intellectual Property.
c) Where the Foreground Intellectual Property was created by the Supplier/Service Provider or
its researchers, agents and employees and where Transnet elects not to exercise its option
to seek protection or decides to discontinue the financial support of the prosecution or
maintenance of any such protection, Transnet shall notify the Supplier/Service Provider who
shall have the right of first refusal to file or continue prosecution or maintain any such
applications and to maintain any protection issuing on the Foreground Intellectual Property.
d) No consideration shall be paid by Transnet to the Supplier/Service Provider for the
assignment of any Foreground Intellectual Property from the Supplier/Service Provider to
record and perfect the assignment of the Foreground Intellectual Property to Transnet.
e) Subject to anything contrary contained in this Agreement and/or the prior written consent of
Transnet [which consent shall not be unreasonably be withheld], the Supplier/Service
Transnet’s Background Intellectual Property and/or Foreground Intellectual Property.
30.3 Title to Improvements
Transnet’s Background Intellectual Property and/or Confidential Information shall be exclusively
owned by Transnet. The Supplier/Service Provider shall disclose promptly to Transnet all such
improvements, developments, adaptations and/or modifications, inventions or discoveries. The
Transnet Agreement No TE/2024/11/0008/84535/RFQ of 30
protection of the improved Foreground Intellectual Property.
30.4 Unauthorised Use of Confidential Information
of any party so acting, and shall provide Transnet the information with such assistance as Transnet
reasonably requires, at Transnet’s cost and expense, to prevent such third party from so acting.
30.5 Unauthorised Use of Intellectual Property
a) The Supplier agrees to notify Transnet in writing of any conflicting uses of, and applications
of registrations of Patents, Designs and Trade Marks or any act of infringement, unfair
competition or passing off involving the Intellectual Property of Transnet of which the
option, to proceed against any party infringing its Intellectual Property.
b) It shall be within the sole and absolute discretion of Transnet to determine what steps shall
be taken against the infringer and the Supplier/Service Provider shall co-operate fully with
Transnet, at Transnet’s cost, in whatever measure including legal action to bring any
infringement of illegal use to an end.
c) The Supplier/Service Provider shall cooperate to provide Transnet promptly with all relevant
ascertainable facts.
d) If proceedings are commenced by Transnet alone, Transnet shall be responsible for all
expenses but shall be entitled to all damages or other awards arising out of such
proceedings. If proceedings are commenced by both Parties, both Parties will be responsible
for the expenses and both Parties shall be entitled to damages or other awards arising out of
proceedings.
33 dispute resolution
33.1 Should any dispute of whatsoever nature arise between the Parties concerning this Agreement, the
Parties shall try to resolve the dispute by negotiation within 10 [ten] Business Days of such dispute
arising.
33.2 If the dispute has not been resolved by such negotiation, either of the Parties may refer the dispute
to AFSA and notify the other Party accordingly, which proceedings shall be held in Johannesburg.
33.3 Such dispute shall be finally resolved in accordance with the rules of AFSA by an arbitrator or
arbitrators appointed by AFSA.
33.4 This clause constitutes an irrevocable consent by the Parties to any proceedings in terms hereof,
and neither of the Parties shall be entitled to withdraw from the provisions of this clause or claim at
any such proceedings that it is not bound by this clause 33.
33.5 This clause 339 is severable from the rest of this Agreement and shall remain in effect even if this
36.2 In the event the Parties cannot agree upon changes, the Parties shall in good faith seek to agree
any proposed changes using the dispute resolution procedures in clause 339 [DisputeResolution].
and conditions, either Party may seek to have the matter determined in accordance with clause 339
[DisputeResolution] above.
37.3 Counterparts