PROCHAIN GENERAL TERMS AND CONDITIONS
- These General Terms and Conditions (“Terms and Conditions”) shall apply to all suppliers that wish to register on Prochain
Best Practice Supply Chain Solutions Proprietary Limited (“Prochain”)’s Vendor Compliance Management system (“VCM”).
This includes the web portal as well as the mobile application.
- The purpose of VCM is to establish suppliers’ compliance with legal- and / or statutory requirements.
- By accepting these Terms and Conditions, the supplier acknowledges, accepts and agrees, in light of the purpose of VCM,
if a supplier is found to have provided fraudulent information and / or documentation that such supplier may be classified
as being non-complaint. Prochain reserves the right to forthwith remove such a supplier from VCM without Prochain incurring
any liabilities as a result of such removal.
- GOVERNING LAW
- The law which is to apply to these Terms and Conditions, and according to which these Terms and Conditions are to be interpreted,
shall be the law of the Republic of South Africa.
- In these Terms and Conditions, except where the context requires otherwise:
- a party or any other person includes its successors in title, permitted assigns and permitted transferees;
- “written” or “in writing” means hand-written, typewritten, printed or electronically made, and resulting in a permanent record; and
- any Act or regulations shall refer to such Act or regulation, as amended from time to time and shall include any subordinate
legislation promulgated thereunder, as amended from time to time.
- The rule of construction that an agreement shall be interpreted against the party responsible for the drafting or preparation thereof,
must not apply in the interpretation of these Terms and Conditions.
- The use of the word “including” followed by specific examples will not be construed as limiting the meaning of the general wording
preceding it, and the eiusdem generis rule must not be applied in the interpretation of such general wording or such specific examples.
Unless the contrary intention appears a reference to any amount of money to be paid by either Party in terms of this Contract shall be exclusive of VAT.
The supplier acknowledges and agrees that it has been free to secure independent legal and other professional advice (including financial and taxation advice)
as to the nature and effect of all the provisions of these Terms and Conditions and that it has either taken such independent advice or has dispensed with the
necessity of doing so, and that all the provisions of these Terms and Conditions and the restrictions herein contained, are fair and reasonable as between the
parties in all the circumstances and are in accordance with the supplier’s intentions.
- All electronic communications received by Prochain whether directly or via VCM from the supplier or vice versa shall be deemed legally binding and enforceable
by law as provided in Chapter 3, section 11(1) – 11(3) of the Electronic Communications and Transactions Act 25 of 2002, provided that the electronic communication
have been sent by a person duly authorised to commit the party in accordance with the provisions of these Terms and Conditions.
- The information contained in any electronic communication shall be deemed as confidential, legally privileged and protected by law. Any electronic communication
shall be deemed solely for the use of the intended recipient to whom it is addressed. The unauthorised use of any such electronic communication or any attachments
thereto, by any person other than the intended recipient is strictly prohibited.
- Cession or Assignment
- The supplier shall not be entitled to cede, assign or delegate any of its rights and/or obligations without having obtained the prior written consent of Prochain.
- Prochain may cede any of its rights and/or delegate any of its obligations under these Terms and Conditions to a third party, by giving 5 (five) business
days’ written notice thereof to the supplier.
- Concession not to Constitute Waivers
- No grant by either party to the other of any concession, waiver, condonation or allowance shall, in respect of any specific event or circumstance other than that
in respect of which the grant was made, constitute a waiver of the rights of the grantor in terms of these Terms and Conditions or estoppel of the grantor’s right
to enforce the provisions of these Terms and Conditions.
- Terms of Payment
- In order to register and make use of VCM, a supplier will be required to pay a licence fee per user as well as purchase tokens for the purpose of vetting its legal
documentation and/or information.
- The licence fee will be payable each year on the birthday of the initial registration date.
- Token fees which is utilised for vetting shall be payable in advance to vet each document required in VCM.
- Vetting fees become payable upon the renewal and/or new upload of documents and/or information on VCM as vetting needs to be repeated each time the said documents expire
or are updated.
- No refunds shall be made in the instance where a supplier uploads and/or provides incorrect documentation and/or information.
- Should a supplier fail to pay the required licence fee; the supplier will not be granted access to VCM and will subsequently not be visible to any clients participating in VCM.
The supplier’s access to VCM will furthermore be revoked.
- Where a supplier wishes to remove or delete its profile from VCM and no longer wishes to make use thereof, any fees paid by such supplier will not be refundable.
- Regardless of whether a supplier is found to be compliant or not, fees paid will not be refundable under any circumstances.
- No Guarantees/Warranties
- Suppliers should take specific note that the main purpose of VCM is to promote legal compliance. In this regard the supplier acknowledges and agrees that Prochain does not in any way
guarantee or warrant that the supplier will obtain any opportunities or new business by virtue of registering on VCM.
- Protection of Personal Information
- In order to promote compliance in terms of the Protection of Private Information Act 4 of 2013 (“POPI Act”), the below provisions are specifically brought to the attention of the supplier.
- The term “Personal Information” is defined in the POPI Act as follows:
- information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to –
- information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental
health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
- information relating to the education or the medical, financial, criminal or employment history of the person;
- any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;
- the biometric information of the person;
- the personal opinions, views or preferences of the person;
- correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original
- the views or opinions of another individual about the person; and
- the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
- Prochain will collect such Personal Information from the supplier, which shall specifically include but is not limited to:
- BEE documentation and information, including BEE certificates or affidavits, letter from the supplier’s accountant confirming turnover, ownership and shareholding distribution
percentages in accordance with race;
- Financial information, including VAT certificate, banking details, tax clearance certificate, income tax number, turnover, PAYE number, name of accountant/auditor and financial statements;
- Personal details such as first names, surnames, identity numbers and title of all directors, members, trustees, shareholders and/or representatives of the supplier;
- The names, surnames, gender, race, age, identity number, registration number (if applicable), shareholder percentages, entity type (if applicable), registered entity name
(if applicable) of the supplier’s shareholders, members or trustees.
- Contact details, including telephone numbers, cell phone numbers; physical address, proof of address, e-mail addresses of the supplier and its employees, directors, members,
trustees and/or any other company representatives;
- Company registration documentation, company structure information, business sector category as well as joint venture agreements between the supplier and a third party (if applicable);
- Letter of Good Standing issued by the Department of Labour;
- Technical capability and traceability information, including supplier’s technical assessment scorecard (if applicable);
- Any other Personal Information as provided by the supplier.
- The source(s) from which the Personal Information will be collected include:
- The supplier itself;
- Publicly accessible platforms; and
- Client(s) to whom the supplier previously made such Personal Information available.
- The Personal Information will be collected by Prochain by way of direct uploading thereof to VCM by the supplier.
- Prochain’s offices are situated at:
Route 21 Corporate Park
5 Regency Drive
- The purposes for which the supplier’s Personal Information will be collected and processed are as follows:
- To enable the establishment of a national supplier database, known as VCM;
- To ensure that the Personal Information and documentation of all suppliers on VCM are verified and vetted to promote compliance and thus prevent corrupt business activities;
- To enable Prochain’s clients to issue requests for quotations and purchase orders to compliant and / or vetted suppliers; and
- To create a database, known as VCM, to promote competitive sourcing.
- The provision of a supplier’s Personal Information is required for the supplier to obtain the full benefit of VCM. Failure of a supplier to provide its Personal Information will
prevent a supplier to reap the full benefits of VCM.
- The Personal Information will be received by Prochain and will be fully visible to the supplier and Prochain. The following Personal Information will be made visible to any Prochain
clients which subscribe to VCM:
- BEE certificate or affidavit and BEE ownership percentages and/or level;
- VAT certificate and VAT number, banking details and tax clearance certificate;
- Company registration documentation and physical address of company;
- Letter of Good Standing issued by the Department of Labour;
- Contact details, name, surname, telephone number, cell phone number and e-mail address of the supplier and its company representatives;
- A supplier’s Personal Information as collected and vetted by Prochain may at times leave South Africa due to the reason that Prochain’s client base is not limited to the Republic of
South Africa alone.
- To ensure that a supplier’s Personal Information is protected to the extent required, all international clients who register to become part of VCM will be required to
adhere to the POPI Act’s requirements, irrespective of where such clients are located.
- The supplier has the right to access its Personal Information and the obligation to rectify any incorrect details and to maintain and keep such Personal Information updated.
- The Personal Information collected by Prochain will be retained by it for up to a maximum of 5 (five) years for the purpose of legislative reporting.
- Should there be a breach of the confidentiality of a supplier’s Personal Information, Prochain will take all reasonable steps to ensure that the supplier is notified
promptly of such breach. Prochain does not, however, accept any liability for the unauthorised use of a supplier’s Personal Information by any client.
- The supplier has the right to lodge a complaint to the Information Regulator where the supplier is of the view that its rights in terms of the POPI Act have been breached.
The contact details of the Information Regulator are as follows:
Telephone number: 012 406 4818
Fax number: 086 500 3351
E-mail address: firstname.lastname@example.org
- The supplier acknowledges that it has been made aware of its rights in terms of the POPI Act and agrees that acceptance of these Terms and Conditions constitutes permission to
collect and process the Personal Information of such supplier as required by VCM and for the purpose(s) as set out in these Terms and Conditions.
- The supplier acknowledges and agrees that Prochain or any of its clients may use its Personal Information for purposes of requesting quotations, requesting information,
issuing a purchase order, drafting and/or amending a contract and BEE reporting.
- The supplier acknowledges and agrees that should there be a suspicion of fraudulent representations of the supplier’s BEE status or commitment to black social and
economic upliftment (known as “fronting”), Prochain may evaluate the Personal Information that has been provided by the supplier and use such Personal Information
to investigate the true value of the supplier’s contribution to the development and upliftment of historically disadvantaged communities. The outcome of said
investigation will be made available to the relevant authorities or clients requesting such information. The supplier acknowledges and agrees that it may affect
the supplier’s compliance score and may also be displayed to clients participating on VCM.
- For the purposes of these Terms and Conditions, all information furnished by Prochain to the supplier, and vice versa, shall be deemed confidential information and
shall include, but not be limited to:
- all information marked (in any legible form) confidential, restricted or proprietary by either of the parties; or
- either party’s know-how, data, documentation, sketches or diagrams, reports, systems, technical specifications, techniques, manufacturing processes, reports and
monitoring results, inventions, patents, tenders and contracts; or
- any other commercially sensitive information, such as rates, names of suppliers, customers, manufacturing processes, business strategies and any other proprietary
information deemed confidential by the disclosing party.
- The parties shall hold in confidence all confidential information received from one another and shall not divulge the confidential information to any person including
employees, save for the employees or agents directly involved with the execution of the scope of work, and in such case, the disclosure of the confidential information to such
employees or agents shall only be to the extent required for the execution of the scope of work.
- Each party will ensure that its employees, agents or other third parties, who may require to be exposed to the confidential information, will have signed a
confidentiality agreement which contains no less favourable terms than those set out herein.
- With respect to all confidential information provided by either party, the parties will use the same care and diligence to prevent disclosure to unauthorised third parties of
such confidential information, as it employs to avoid disclosure, publication or dissemination of its own confidential information.
- The parties will not publicly disclose the terms of these Terms and Conditions, or any other agreement between them, without the prior written consent of the other party.
- Notwithstanding the foregoing, this clause will not apply to any information, to which the parties can demonstrate the following:
- at the time of disclosure, such information was known in the public domain;
- after disclosure, such information became published or otherwise, becomes part of the public domain through no fault of the receiving party;
- such information was already in the possession of the receiving party at the time of disclosure by the disclosing party;
- the receiving party also received such information, after disclosure by the disclosing party, from a third party who had a lawful right to disclose such information to it; or
- the receiving party independently developed additional information, without reference to any confidential information received by it from the disclosing party.
- At the request of either party, at any time, the parties shall promptly deliver to the requesting party all written, printed, electronically stored and copied confidential
information of whatever nature disclosed to it without retaining any copies thereof and shall either so deliver or destroy any written material based on the confidential information.
- The parties agree to use the confidential information for the sole purpose of these Terms and Conditions and the purposes as set out in clause 9.6.
- Should there be a dispute between the parties as to whether either party complied with the provisions of this clause or not, the onus shall be on the alleged defaulting party
to show that it took all reasonable steps to comply with the provisions of this clause and further, the aggrieved party shall take all reasonable steps to assist the alleged defaulting
party in establishing the source from which such confidential information was made known.
- The provisions of this clause 10 (Confidentiality) shall survive the fulfilment, cancellation or termination of these Terms and Conditions for any reason whatsoever and remain binding
on the parties in perpetuity.
- Termination, Reporting and Breach
- Either party may terminate the agreement entered into between the parties, as contemplated in clause 1 (General), as a whole or in part, immediately at any given time by written
notice thereof to the other party. The supplier will, however, not be entitled to the return of any payments made by it prior to termination.
- Termination of the agreement may take place in the following ways:
- Upon the supplier’s request for termination;
- Automatically upon non-payment of licence fees by the supplier; or
- automatically, where the supplier provides false information or commits any fraudulent act in relation to the provision of information.
- Prochain shall be entitled to, in addition to terminating the agreement between the parties, report any supplier where such supplier commits any fraudulent act in relation to the
information provided to Prochain, including the intentional provision of false information. Such supplier may therefore be prevented from accessing VCM and may be prohibited from
ever registering on VCM again.
- Where a party is in breach or default of these Terms and Conditions or of the provisions of the agreement entered into between the parties, as contemplated in clause 1 (General),
the defaulting party shall be notified in writing within 7 (seven) calendar days of the aggrieved party’s dissatisfaction with regard to performance or non-conformance and shall be
provided with the opportunity to respond in writing and take corrective action within 7 (seven) calendar days after being issued with the notice. Record shall be kept of all communication
in this regard.
- Dispute Resolution
- Any disagreement or dispute arising between the parties relating to or arising out of these Terms and Conditions or the agreement entered between the parties, as contemplated in clause 1
(General), shall in the first instance be referred to the parties’ respective Chief Executive Officers (or their designated nominees) for resolution. In the event of the dispute not having
been resolved within 15 (fifteen) business days of such referral, or such longer period as the parties’ respective Chief Executive Officers (or their designated nominees) may agree in writing,
the dispute or difference will be referred to arbitration.
- Limitation of Liability
- Neither Party shall be liable towards the other Party for any indirect or consequential losses or damages.
- Prochain’s liability towards the supplier for loss of, or damage to the supplier’s property shall be limited to all direct losses or damages capped at the amount recoverable in terms
of Prochain’s liability insurance cover, provided that such damages be limited to proven damages only.
- Prochain’s total liability to the supplier, for all matters arising under or in connection with this agreement, other than the excluded matters, shall be limited to all direct losses
or damages capped at the amount recoverable in terms of Prochain’s liability insurance cover, provided that such damages are limited to proven damages only.
- Prochain accepts no liability where a supplier suffers reputational damage or where current or potential work of such a supplier is compromised as a result of the compliance status results
allocated to a supplier’s profile.
- Unenforceable Provisions
- Should any provision of this disclaimer is, or is found to be, unenforceable under any applicable law, that will not affect the enforceability of the other provisions as set out in this disclaimer.
- Support and Good Faith
- The Parties undertake always to do all such things, perform all such actions and take all such steps and to procure the doing of all such things, the performance of all such actions and the
taking of all such steps as may be necessary for or incidental to the putting into effect or maintenance of the terms, conditions and/or import of these Terms and Conditions.
- The parties shall always during the continuance of this agreement observe the principles of good faith towards one another in the performance of their obligations in terms of the
Terms and Conditions. This implies, without limiting the generality of the foregoing, that they shall:
- always during the term of the relationship act reasonably, honestly and in good faith; and
- perform their obligations arising from the Terms and Conditions diligently and with reasonable care.
END-USER LICENCE AGREEMENT FOR VCM AND THE E-PROCUREMENT FUNCTIONALITY
IMPORTANT: Please read the terms and conditions of this license agreement carefully before continuing with this program:
- Prochain’s End-User License Agreement (“EULA”) is a legal and binding agreement between the supplier (either an individual or a single entity) and Prochain for the Prochain software product(s),
namely the Vendor Compliance Management system (“VCM”) and e-procurement functionality which may include associated software components, media, printed materials, and “online” or electronic
documentation (“Software Product”). By installing, copying or otherwise using the Software Product, the supplier agrees to be bound by the terms of this EULA. This license agreement represents the
entire agreement concerning the program between the supplier and Prochain (referred to as “licenser”), and it supersedes any prior proposal, representation, or understanding between the parties in
this regard. If the supplier does not agree to the terms of this EULA, the supplier must not install or use the Software Product.
- The Software Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold.
- Grant of License
- The Software Product is licensed as follows:
- Installation and Use
Prochain grants the supplier the right to use the Software Product on its computer running a validly licensed copy of the operating system and internet browser for which the
Software Product was designed [Windows XP, Windows Vista, Windows 7].
- Description of Other Rights and Limitations
- Maintenance of Copyright Notices
The supplier may not remove or alter any copyright notices on any and all copies of the Software Product.
The supplier may not distribute registered or unregistered copies of the Software Product to third parties.
- Prohibition on Reverse Engineering, Decompilation and Disassembly
The supplier may not reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by applicable law
notwithstanding this limitation.
The supplier may not rent, lease or lend the Software Product.
- Support Services
Prochain may provide the supplier with support services related to the Software Product (“Support Services”). Any supplemental software code provided to the
supplier as part of the Support Services shall be considered part of the Software Product and subject to the terms and conditions of this EULA.
- Compliance with Applicable Laws
The supplier must comply with all applicable laws regarding use of the Software Product.
- Without prejudice to any other rights, Prochain may terminate this EULA if the supplier fails to comply with the terms and conditions of this EULA. In such event, the
supplier must destroy all copies of the Software Product in its possession.
- All title, including but not limited to copyrights, in and to the Software Product and any copies thereof are owned by Prochain. All title and intellectual property rights in
and to the content which may be accessed through use of the Software Product is the property of the respective content owner and may be protected by applicable copyright or other
intellectual property laws and treaties. This EULA grants the supplier no right to use such content. All rights not expressly granted are reserved by Prochain.
- No Warranties
- Prochain expressly disclaims any warranty for the Software Product. The Software Product is provided “As Is” without any express or implied warranty of any kind,
including but not limited to any warranties of merchantability, non-infringement, or fitness of a particular purpose. Prochain does not warrant or assume responsibility for the
accuracy or completeness of any information, text, graphics, links or other items contained within the Software Product. Prochain makes not warranties in respect of any harm
that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb or other such computer program. Prochain further expressly disclaims any warranty or
representation to Authorised Users or to any third party.
- Limitation of Liability
- In no event shall Prochain be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) arising out of Authorised Users’
use of or inability to use the Software Product, even if Prochain has been advised of the possibility of such damages. In no event will Prochain be liable for loss of data or
for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, delict or otherwise. Prochain shall have no liability with respect
to the content of the Software Product or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy,
trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.