General terms and conditions of business for K2014107940 (Pty) Ltd trading as Metal Management Solutions 

 

Entire Contract
 
  1. These general terms and conditions of business, to which you consent on accepting our advice and/or our fee estimate (collectively, the “Contract”) constitute the entire agreement between the company, trust or individual to whom such services is rendered and any other legal entities referred to therein (“Company” or ”you”) and K2014107940 (PTY) LTD trading as METAL MANAGEMENT SOLUTIONS (referred to as “we”, ”us”, “our” or “MMS”) regarding the services.

 

Responsibilities of the Company
 
  1. You acknowledge that you retain all responsibilities related to judgements and decisions regarding your business. Accordingly we will not exercise any such authority on your behalf nor will we authorise, execute or consummate any transactions on your behalf.

  2. We request that you disclose timeously, fully and accurately all information required or reasonably relevant for completing all assignments and that you bring to our attention any matters that you are uncertain about. You agree that on request, officials of the Company will provide us with appropriate assistance to enable us to fulfill our responsibilities.

 

Our Responsibilities
 
  1. We are committed to provide you at all times with the highest quality of services to meet your needs. If at any time you believe that our services could be improved, or if you are dissatisfied with any aspect thereof, we request you to raise the matter immediately with the director responsible for this engagement or with the director in charge of the office rendering the services. In this way we will ensure that your concerns are dealt with properly and promptly.

  2. Unless specifically instructed by you and agreed to by us, we will not be responsible for the implementation or ongoing monitoring of any aspect of your operation.

  3. Although it may be necessary on occasion for us to examine, in our discretion, certain of your records, or information supplied to us, the information which will be included in your returns or upon which they will be based or which will be used by us for the provision of the services will be as supplied by you. Whilst we will take every care to ensure that this information is properly processed, in agreeing to assist you in this manner we do not assume any responsibility for the accuracy or completeness of the information provided to us. The manner in which we collect and process any personal data is described in clause 34 below.   

 

Confidentiality
 
  1. It is agreed that neither ourselves nor the Company will disclose to any third party without the prior written consent of the other party any proprietary or confidential information which is received from the other party for the purposes of providing or receiving services in terms of this Contract. Each party agrees that any such information received from the other party shall be used only for the purposes of providing or receiving services in terms of this Contract. To the extent appropriate and as required by you we shall observe the privilege rules applicable to our directors or employees.

    However, the aforegoing shall not preclude:
     

  • us from using techniques, ideas, and other know-how gained during the performance of your assignments in the furtherance of other client work, and our practice generally, provided that this does not result in a disclosure of confidential information or an infringement of any intellectual property rights.

  • our partners, directors, employees or agents, from taking such steps as are necessary or desirable to comply with the professional or ethical rules or guidelines of any relevant professional body of which such person may be or become a member.

  • either you or us from disclosing any such data to our respective insurers or advisors, or to a third party to the extent that this is required by law.


The previous paragraph shall not preclude us from citing the performance of our services to you, to our clients and prospective clients as an indication of our experience.


Fees and payment

  1. Our fees are based upon the degree of skill and responsibility involved and the time necessarily spent on your affairs by our directors and staff. Out-of-pocket expenses incurred by us in connection with your affairs will be charged to you separately in addition to the fee.

  2. Fee notes for services rendered will be issued on a regular basis as the work is conducted. In particular, our fees will be billed when a particular item of work is completed, or on an interim basis as the work progresses where we consider this to be more appropriate.

  3. Our fee notes are payable on presentation and will be issued in the name of, and will be due to, MMS for which we act as agent in providing metallurgical and software services.

  4. VAT will be charged at the relevant rate in addition to the fee estimates provided.
     

Opinions and advice
 
  1. In written opinions, reports and other documents we will set out our understanding of the nature and extent of the assignment and the relevant background information on which we will base our advice and opinions. If such information is incorrect or inaccurate you should advise us accordingly as soon as possible as this may affect our advice. We cannot and do not guarantee our opinion nor give any representation, warranty, or indemnity with regard to it. We do, however, act strictly in accordance with the professional standard to be expected of us in giving the opinion. Our advice is provided for your benefit. We accordingly disclaim any responsibility for the use our advice for a different entity or in a different context and you hereby indemnify us against any claim by any third party arising from advice given by us to you.

  2. Any draft reports or letters which we might provide to you will not constitute our definitive opinion and conclusions which will be contained solely in the final written product.

  3. Where requested to do so we will answer enquiries over the telephone or in meetings, on an informal basis. As this may involve immediate answers to complicated problems for which we may not have received full and accurate information, we shall have no liability to you for the immediate answers. You should neither act nor refrain from acting on the basis of such answers unless they are confirmed in writing by us, which we will gladly do if so requested by you.

  4. Our opinions and advice· will be based on our knowledge, understanding and interpretation of the facts on the date on which the advice is provided, as applied to the information supplied by you. It must however be appreciated that interpretation thereof, on which our advice is based, are likely to change over time. Such changes, which may take place before our advice is acted upon or may be retrospective in effect, may impact on the advice given and the outcome of the situations analysed. You are cautioned to keep abreast of such developments and are most welcome to consult us again for this purpose or to request us to review previous work or advice given. We accept no responsibility for any such changes, or in interpretations thereof occurring after the date of issue of the relevant opinion or advice.


Disclaimers, limitations and indemnities
 
  1. Notwithstanding anything to the contrary within this Contract, our liability for any direct or indirect (including, without limitation, consequential) loss, damage, costs and / or expenses of any nature whatsoever which you may suffer or incur as a consequence of or which may arise from or be attributable to (i) the services or any other work we perform, (ii) any act or omission on our part, and/or (iii) any breach, fault or negligence on our part, will (a) exclude liability for any consequential, exemplary, extrinsic, indirect, incidental, punitive, pure economic or special loss or damage of any kind whatsoever and howsoever caused, (b) be limited to direct damages only, and (c) be limited to the total amount of the fees paid by you in connection with the services rendered in the specific assignment concerned. We are not liable to the extent that the loss or damage results from something you do or fail to do (such as giving us the wrong information or not giving us information at a time we ask for it).

  2. Any reports, letters, other advice or information (“the documentation”) provided will be supplied on the basis that they are for the sole use of the parties to whom they are addressed and exclusively for-the purposes set out therein. No party other than those to whom they are addressed may rely upon this documentation for any purpose whatsoever and MMS accepts no third party claims for damages of any nature arising from this documentation. Copies may be made available to the addressee’s advisors provided that the documentation is to be used by them solely for the purposes stated therein and provided that they are made aware of the terms of this paragraph. It may not be made available or copied in whole or in part to any other party without our prior express written consent, so that we will have the opportunity to consider the context in which our advice is being used. Such consent will not unreasonably be withheld. This limitation will obviously not apply to the provision of the documentation as required by law. We retain any intellectual property rights in any such documentation including, without limitation, copyright.

  3. Any claims, howsoever arising, must be commenced formally by service of court summons or process initiating arbitration proceedings within two years 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 three years 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 which would otherwise apply.

  4. MMS shall not be liable for any loss, damages, costs or expenses directly or indirectly incurred as a result of information supplied by, or misrepresentations, negligent or dishonest acts or omissions on the part of the Company, its directors, employees or agents. The Company indemnifies MMS and holds it harmless against all or any claims made against it by any party whatsoever in respect of any such loss, damages, costs or expenses and against the actual costs incurred by MMS in defending such claims.

  5. The exclusion of liability in the previous clauses shall not apply to the extent that any liability arises out of acts, omissions or misrepresentations which are in any case criminal, dishonest or fraudulent on the part of MMS directors, employees, or agents.

  6. In determining the liability of MMS, a court or arbitrator shall limit such liability to that proportion of the loss or damage suffered by the Company which is ascribed to MMS by such court or arbitrator allocating a proportionate responsibility having regard to the contribution to the loss or damage in question of the Company or any other person based upon relative degrees of fault; it being a term of the Contract that the provisions of Section I of the Apportionment of Damages Act, 1956 will apply to all claims between MMS and the Company and that “breach of contract or gross negligence” and “damages” or “losses” as used herein shall be deemed to fall within the meanings of “fault” and “damage” as contained in Section 1 of the Apportionment of Damages Act, 1956. MMS liability to the Company shall in no circumstances exceed the lower of the amount determined by the application of the monetary limit based upon fees paid by you or the amount determined by the apportionment of responsibility as the case maybe.

  7. For the purpose of paragraphs 17 to 25:

  • “MMS ” shall include MMS (South African registration number:2014/107940107), its subsidiary and associated companies and entities, and their respective directors, employees, agents and subcontractors.

  • “The Company” shall include the party on whose behalf or on whose instruction the service was rendered and also any person or entity purporting to claim through or on behalf of the above.

  1. MMS alone will be responsible for the provision of the services. By entering into this Contract you agree that you will not bring any claim in respect of or in connection with the services whether in contract, delict or otherwise, against any MMS entity other than MMS, or against any of the directors, partners or employees of MMS or any other MMS entity.

  2. You agree to indemnify and hold harmless any MMS entity and their directors, partners, employees, agents or sub-contractors from any and all third-party claims, liabilities, costs, and expenses, including reasonable attorneys fees, arising from or relating to the services under this Contract, except to the extent finally determined to have resulted from acts, omissions, or misrepresentations which are in any case criminal, dishonest or fraudulent on the part of any director, employee or agent of any MMS entity, relating to such services.
     

Retention of records
 
  1. It is our normal policy to destroy client files after ten years. If you wish us to vary this policy in respect of your affairs please let us know in writing.
     

E-mail communications
 
  1. During the course of our work, we and you may wish to communicate electronically “With each other. However, the electronic transmission of information cannot be guaranteed to be secure or virus- or error-free and consequently, such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. We and you each recognize that systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazards.

  2. We and you both agree that:

  • Each party accepts these risks and authorises electronic communications between us.

  • Each party agrees to use commercially reasonable procedures to check for the currently most commonly known viruses before sending information electronically.

  • Each party shall be responsible for protecting its own systems and interests in relation to electronic communications and neither you nor we (in each case including our respective directors, partners, employees, sub-contractors or agents) will have any liability to each other on any basis, whether in contract, delict (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between us or our reliance on such information.
     

  1. Where messages are sent by email, we shall adopt the following procedures and you agree to do likewise:

  • if a matter is urgent, the sender shall supplement the email with a telephone call to confirm that appropriate action is being taken;

  • unless you instruct us clearly on your e-mail message to us that you do not want a response in

  • electronic form, we may respond via email.

 

Privacy policy and personal data

  1. Our Privacy Policy sets out the manner in which we collect and process any personal data that you provide through your use of our website or any of our products and services. In this context, “personal data” means “personal information” as defined in the Protection of Personal Information Act, 4 of 2013 (“POPI“) and “personal data” as per the EU General Data Protection Regulation 2016/679 (“the GDPR“). For further information on the gathering, use and disclosure of your personal data please see our Privacy Policy. 

 

Exclusivity

  1. Neither we nor any MMS (Pty) Limited entity will be prevented or restricted by anything in this Contract from providing services to any other clients or prospective clients.

 

Governing Law

  1. This Contract will be governed by and interpreted in accordance with the laws of South Africa. Should any dispute arise between you and us, both parties will attempt to resolve the dispute in good faith by senior level negotiations. Where both of us agree that it may be beneficial, both parties will seek to resolve the dispute through mediation using the services of a mutually acceptable mediator to facilitate the mediation process. If the dispute is not resolved through negotiation or mediation each of us agrees that the South African Courts will have exclusive jurisdiction in connection with the resolution of the dispute.

 

Other Provisions

  1. Neither party may transfer, charge or otherwise seek to deal with any of its rights or obligations under this Contract without the prior written consent of the other party, except that we may, without requiring your consent, transfer our rights and obligations under this Contract to any legal entity established or authorised to take over all or any part of our business.

  2. Neither you nor us will be liable to the other for any delay or failure to fulfill their obligations under this Contract to the extent that any such delay or failure arises from causes beyond their control, including but not limited to fire, floods, acts of God, acts or regulations of any governmental or supranational authority, war, riot, terrorist activities, strikes, lockouts and industrial disputes.

  3. Unless otherwise stated in the engagement letter, this Contract will commence as from the date of signature of the engagement letter and will thereafter continue in effect indefinitely, subject to the right of either party to terminate it upon 30 days prior written notice. Unless otherwise agreed, such termination will not affect the applicability of this Contract to any uncompleted projects.

  4. All terms of this Contract that are intended by their nature to survive termination of this Contract shall survive termination and remain in full force, including but not limited to the terms concerning fees and payment, disclaimers, limitations and indemnities. If any provision of this Contract is determined to be invalid under South African law, such provision will be applied to the maximum extent permitted by applicable law, and shall automatically be deemed amended in a manner consistent with its objectives to the extent necessary to conform to any limitations required under applicable law.