Short Duration Services Contract – General Conditions of Services

CONTRACTOR: COMPANY: INVOICE TO:

FAST SERVICE COMPANY SARL KAMOTO COPPER COMPANY S.A. KAMOTO COPPER COMPANY S.A.
Siege Social no. 2831 Avenue Makingo, A public liability company with a board of directors Usines de Luilu
Commune de Lubumbashi Usines de Luilu Commune de Dilala
Province du Lualaba Commune de Dilala Kolwezi - Lualaba
DRC Kolwezi – Lualaba DRC
RCCM 143 ID Nat 6-490-N8146Y DRC RCCM CD/KZI/RCCM/14-B-020 - Id. Nat. 01-193-N45597Q
No TVA: 1588/2013 Share capital: USD 328,938,000.00 NIF A0701041Q
Email: info@fascodrc.com RCCM CD/KZI/RCCM/14-B-020 - Id. Nat. 01-193-N45597Q No TVA 0479/DGI/DGE/DIG/MB/TVA/2011
Tel: +243 81 444 3683 NIF A0701041Q
(the "Contractor") No TVA 0479/DGI/DGE/DIG/MB/TVA/2011 Invoice is to be sent by hard copy to the Company's address
and by electronic version (scan) to:
(The "Company") accountspayable@katangamining.com

EXPECTED
TIME FOR
COMPANY’S CONTRACTOR’S
ORDER NUMBER ORDER DATE COMMENT COMPLETION
REPRESENTATIVE REPRESENTATIVE
OF THE
SERVICES
The Contractor shall provide necessary equipment (including
lubricant, spare parts, consumables and maintenance) working
tools, machinery and materials required for the performance of
the Services, Personal Protective Equipment in accordance with
the Company’s standard, on Site transportation of its Personnel
as well as transportation to and from Site, equipment, working
tools to and from Site, medical care (including medivac for
KCC205-FAS-OPE-2020 17th September 2020 Johan Coetzee Aaron Numbi Two (02) months.
expat Personnel) and insurance for the Personnel and the
Kalume
equipment, necessary work permits and visas, copies and
records of induction, training, competency and medical upon
request by the Company, provide a risk assessments for all
planned activities required to complete the Services, participate
in daily safety talks and discussions when on Site and final
report upon completion of the Services.

Monthly - thirty (30) Days after receipt of correct

USD
invoice by the Company’s Finance department.
PAYMENT TERMS:
Payments shall be based on actual Services
performed.

-1-
N° SCOPE OF SERVICES SITE COMPANY PROVIDED FACILITIES EXPECTED TOTAL COST
COMPLETION DATE (USD)

The Contractor is required to Acid Plant Storm water ponds
construction (the “Services”) as requested by the Company’s
Representative.
The scope of the Services to be performed shall include, but
not be limited to, the following:
 Excavate in all materials and use for embankment or
backfill or dispose as ordered the Aeolian in situ material
located in the area to the sufficient base able to contain
the load. All excavated materials will be removed and
dumped within 1km as per the KCC representative
instruction.
- Acid Plant, Luilu  Access to site 18th November 2020
 Free issue of materials to be installed
 On site induction and safety training
 KCC specific permit to work holders
training for Contractor’s site supervisor
 KCC specific permit to work awareness
training for Contractor’s personnel.
 Oversight supervision.
 Initial project survey benchmarks to allow
the Contractor to set out the works

 Import pioneer rock layer compacted in 150mm

minimum thick layers to 93% of the maximum modified
AASHTO dry density, punch into the soft in situ soil to
provide both a stable working and riding surface and to
ensure that the compaction energy from the roller is not
attenuated through the soft soil below

 Placement of rock grid over the pioneer layer at the

bottom of the excavation in accordance with the
manufacturers direction

 Build an Engineering fill with the G7 materials or

Nodular Ferricrete soil (or Laterite) compacted in 150mm
thick layers to 93% of the maximum modified AASHTO
dry density from the rock fill to the bottom level of the
ponds. The materials imported will include extra over
excavations to Clear and removing overburden at Laterite
borrow area +- 1m deep, the hauling of the materials and
the processing to construct the engineering backfilling.

 Build, Cut and Shape to final levels the ponds walls with
an engineering fill using the G7 materials at least or
Nodular Ferricrete soil (or Laterite) compacted in 150mm
thick layers to 93% of the maximum modified AASHTO
dry density from the bottom Level of the pond to the top
of walls as per the drawing. The embankment forming the

-2-
 slopes to the ponds will be constructed for the internal
sides [LINED SIDE] to Gradients: 1:2 (V/H) and
External sides [UNLINED SIDE] to Gradients: 1:2 (V:H)

 Restricted excavation for lining achor trenches to details

including backfilling on completion of lining installation
executed by others

 Construct sub soil drainage to detail, inclusive of

trenching, laying and coupling pipes, bidum wrap and
washed stone bedding as per "DETAIL 2 : SUB-SOIL
DRAINAGE"

 Construct rodding eye to detail including concrete

encasement

 Concrete works for the wear including reinforcing bars

and formworks

 Erect 6m x 4m x 0.5m Reno mattresses and fill with

selected rock including preparing sub surface and
excavation requirements.

 Excavate a V-Drain to run the water from the Pond to the

T-Wall including outlet pipe installation.

Miscellaneous:

 The Contractor shall coordinate with the Company’s

Representative on the Services schedules;
 The Contractor’s working hours shall be that of the
Company’s working hours unless discussed and
agreed otherwise by the Company’s and Contractor’s
Representative;
 The Contractor shall maintain daily communications
with the Company’s Personnel; and
 All Contractor’s Personnel attendance shall be
recorded on hourly timesheets, verified and signed
off by the Company’s Representative on a daily
basis’

-3-
  The signed timesheets shall be the basis of the
Contractor’s invoicing.

Applicable Drawing:

-4-
Schedule of Rates:

-5-
The Contractor shall be paid as per agreed rates, against actual hours performed, quality approved substantiated by the timesheets and the final Certificate of Completion.

KAMOTO COPPER COMPANY S.A SIGNATURE:

AUTHORIZED BY: Clint Donkin

FAST SERVICE COMPANY SARL SIGNATURE:

ACCEPTANCE OF THE CONDITIONS OF THE SERVICES
BY: THE DULY AUTHORIZED REPRESENTATIVE

By the signature of this Service Order, the Contractor accepts all the General Service Conditions of the Company attached her ein

-6-
We confirm that a Service Order now exists between Kamoto Copper
Company S.A. (the “ Company”) and the Contractor (the "Parties")
on the above basis and in accordance with the General Services
Conditions of the Company (the “GSC”) as set out below. A signed
copy of the Service Order must be returned to the Company within two
(2) days after receipt of the order, failure to do so shall constitute
acceptance of the terms and conditions as set out in the Service Order
and the GSC below.
1. ENTIRE AGREEMENT, AMENDMENTS AND WAIVER
1.1 Unless the Parties conclude a written agreement in addition to
the Service Order, signed by both Parties, this Service Order shall set
forth the entire agreement between the Parties pertaining to the subject
of the Service Order and supersedes the Contractor’s Special and
General T erms and Conditions (if any), all enquiry documentation,
proposals, agreements, negotiations and commitments, whether
written or oral, whether expressly rejected or not, prior to the date of
issue of this Service Order.
1.2 No variation, amendment, addition or a complement to the order
shall be binding on the Company unless expressly accepted in writing
in the form of a Service Order or amendment issued by the Company
and duly signed by an authorized representative of the Company.
1.3 T he waiver by a Party at any time, for non-compliance by the
other Party with a provision of this Service Order, shall never be
construed as a waiver by such Party of any subsequent execution of
that provision or a waiver by such Party of the execut ion of any other
provision of the Service Order.
2. DEFINITIO NS
For all purposes of this Service Order, the following words and
expressions shall have the respective meanings assigned to them
below, except where the context otherwise requires:
"Amendment" means any amendment to the Service Order in writing
and signed by the authorised representatives of the Company and the
Contractor or any person duly empowered to that effect.
"Certificate of Completion of the Services " means the certificate of
completion, issued in writing by the Company’s Representative,
proving the completion of the whole or part of the Services to be
delivered by the Contractor, as described in the Service Order.
"Claim" means any claim against the Company and/or the Contractor
including, without limitation, any allegation, debt, cause of action,
notice, demand, action, proceeding, litigation, investigation,
judgment, loss, cost, expense or liability of whatever nature ho wever
arising and whether present or future, fixed or unascertained, actual or
contingent, and arising from Law, equity, statute or otherwise.
"Clause" means a clause of the Service Order.
"Company’s Representative" means the Company’s
representative(s) as described in this Service Order, who has or have
been nominated by Company to act as the primary point of contact
with Contractor with respect to the Services and is authorized to act
on behalf of the Company in administering this Service Order, and
Contractor shall comply with all demands, decisions, instructions and
notices given by the Company’s Representative pursuant to this
Service Order.
"Confidential Information" means any technical and commercial
information of a confidential nature or which may be qualified as
confidential by a reasonable person, including but not limited to
policies, productions, procedures, methods, formulations, facilities,
products, plans, business transactions, organisations, business
relationships, customer list, which may be disclosed, provided or
otherwise made available to the Contractor by the Company and, being
necessary to the carrying out of the Services, whether this information
has been disclosed before or during the execution of the Service Order.
"Contractor's Equipment" means all plant(s), equipment(s),
product(s), good(s), machinery, tools, appliances and other items
which are brought on Site for the completion of Services by the
Contractor or which are otherwise required for the proper carrying out
and completion of the Services.
"Contractor’s Representative" means the Contractor’s
representative(s) as described in this Service Order, who has or have
been nominated by Contractor to act as the primary point of contact
with Company with respect to the Services. Changes to the nominated
representative shall be subject to Company approval.
"Damage" means any direct, indirect or special damages, such as, but
not limited to, any damage to the property, loss of profit, loss of
production, loss of business or trade, or loss of business reputation
suffered by one Party as a result of any breach of the obligations
stipulated in the Service Order by the other Party.
"Day" means a calendar day.
"DRC" means the Democratic Republic of Congo.
"Governmental Unit" means any central, national, federal, state,
provincial, regional, municipal, or local government, any political
subdivision or any governmental, quasi-governmental, judicial, public
or statutory instrumentality, administrative agency, authority, body or
other entity having jurisdiction over the Services.
"Insolvency Event" relating to the Contractor means:
i) the application of a reassessment or liquidation procedure against it;
ii) any declaration of bankruptcy made by the Contractor or imposed
on that latter by any competent authority; the appointment of an
administrator to manage its assets or properties; iii) voting in a general
meeting for the closing of a liquidation proceeding.
"Know-How" means and includes any designs, formulas,
developmental or experimental work, inventions, know-how,
innovations, new applications, techniques, data, devices, computer
and other programs, products, concepts, discoveries, patents, patterns,
methods, information, improvements, creative works, literary works,
pictorial, graphic and sculptural works, audio visual works and other
works of authorship, ideas, procedures, processes, systems, methods
of operation, principles and other discoveries, regardless of the form
in which described, explained, illustrated or embodied, and whether or
not any of them are reduced to writing or reduced to practice, whether
or not they are novel or patentable, whether or not they are invented
or discovered by a Party, whether or not copyrightable or protected as
a trade name, Service mark, trademark, logo, registered or collective
mark or otherwise, and whether or not registered in any jurisdiction.
"Law" means any statute, law, regulation, ordinance, rule, judgment,
order, decree, mandate, directive, code, standard or guideline (to the
extent it is mandatory), policy (to the extent it is mandatory) or
requirement, or any similar form of decision of or determination by,
or any interpretation or administration of, any of the foregoing by any
public authority or Governmental Unit, whether now or hereafter in
effect.
"Liability" means any Claim(s), debts, obligations, liabilities, losses,
costs, expenses and damages of any kind and however arising,
including penalties (notably loss of entitlements to, or associated with,
operating), fines and interest and including those which are
prospective or contingent and those the amount of which is not
ascertained or ascertainable.
"Party (ies)" means either the Company or the Contractor, as the
context requires.
"Person" means any individual, corporation, company, voluntary
association, partnership, incorporated organization, unincorporated
organization or Governmental Unit.
"Personnel" means Contractor’s employees and/or representatives,
Contractor’s agents and/or subcontractors, as well as employees,
representatives or agents of such agents and/or subcontractors hired to
perform the Services.
"Price" means the price payable by the Company to the Contractor
under this Service Order.
"Schedule(s)" means all of the agreed upon schedules attached to this
Service Order (if any).
"Service O rder" means this document, including the GSC and all
Schedules (if any).
"Services" shall have the meaning set forth in the Service Order.
"SHE" means Safety Health and Environment as provided in Clause
16 of this Service Order.
"Site" means the Company’s site(s) and/or any specific area(s) where
the Services are to be carried out as detailed on the first page of the
Service Order.
"USD" means the currency of the United States of America.
"Value Added Tax" or "VAT" means the "Taxe sur la Valeur
Ajoutée" as defined and applied by the DRC Ordonnance-loi
N°10/001 dated 20 August 2010 and amended by DRC Ordonnance-
loi N°13/007 dated 23 February 2013, as may be further amended from
time to time.
3. SCO PE O F APPLICATIO N
3.1 T he Contractor agrees to perform for the Company the Services
described in this Service Order. Services shall be performed in
accordance with any time for completion requirements (if any) set
forth in this Service Order and in accordance with the GSC.
3.2 T he Company’s Representative is authorized to act on behalf of
the Company in administering this Service Order, and Contractor shall
-7-
comply with all demands, decisions, instructions and notices given by
the Company’s Representative pursuant to this Service Order.
3.3 If individual terms of this Service Order and GSC cannot be
applied for any reason whatsoever, all other terms and conditions will
remain unaffected.
4. GUARANTEES AND O THER CO MMITMENTS
4.1 Declarations, guarantees and commitments of the Parties
Each Party represents, declares and warrants the following:
i) it is legally incorporated in the DRC; ii) it has the power and capacity
to enter into and execute the Service Order; iii) it entered into this
Service Order voluntarily; iv) by signing and executing the Service
Order, it shall not violate directly or indirectly another agreement,
commitment or other sort of Service Order or any applicable Law,
legal requirement or court decision; and v) the Service Order
constitutes valid obligations and is binding it according to its terms
and conditions.
4.2 Declarations, guarantees and commitments of the Contractor
T he Contractor represents, declares and warrants the following: i) it
has all licenses, permissions and sufficient insurance necessary to
perform the Services; ii) it has complied with all taxes in the DRC,
social taxes, special tax, customs, health statements and more
generally any administrative statement that may be needed for its
activity as well as the execution of the Services, and that it is up to date
with the payment of any amount of any nature whatsoever which may
be due to the aforementioned authorities; iii) it has entered into valid
contracts of employment with all its Personnel with a view to the
provision of Services prior to its assignment. In this regard, it is
understood that any dispute, Claim and litigation raised by a member
of Personnel assigned to the Services, shall be directly born and settled
at its own exclusive expenses by the Contractor which shall in no way
be entitled to start any kind of related proceedings whatsoever against
the Company; and iv) it is not in a situation of Insolvency Event.
5. PAYMENT CO NDITIO NS
5.1 Payment is subject to invoice and Certificate of Completion of the
Services, duly signed by an authorized representative of the Company,
being provided before the 25 th of the month in which Services are
completed and handed over to the Company. Subject to the provision
of the abovementioned documents, payment will then be effected
according to the payment terms defined in the Service Order. All
advance payments are subject to the Company’s prior approval and an
original Advance Payment Guarantee being delivered to the Company,
unless the Parties agree otherwise in writing.
5.2 All invoices shall have the following information: Company
details mentioned on the Service Order, Service Order number,
description of Service for each Service invoiced as per the Service
Order structure, hours invoiced for each Service (if applicable), net
price per Service, extended total value for the Service invoiced, Value
Added T ax (if applicable) and any agreed upon additional costs shown
separately. All invoices shall, for the purpose of facilitating direct
electronic payment, indicate the name of the Contractor's nominated
bank, the branch code and account number. Invoices are to be sent
according to the provisions set out in the Service Order with all
abovementioned details.
5.3 Any invoice received in excess of the order value shall be rejected
and returned to the Contractor for cancellation unless an amendment
to the Service Order has been signed and issued. At the Company’s
discretion, Contractor shall either repay Company the excess amount
or provide Company with credit for future services, should incorrect
invoice be paid by the Company.
6. PRICES
6.1 T he Price for the Services shall be as stated in the Service Order.
T he Price comprises any and all fees, duties, taxes, Services,
contributions taxes, special taxes, excluding VAT .
6.2 Unless upon prior written approval of the Company , the
Contractor shall pay (if any) all costs, expenses and liabilities incurred
by its activities in the course of or in connection with the performance
of the Services. If the Company agrees to pay any costs, expenses and
liabilities, all such expenditures shall be reasonable and supported by
original receipts or other appropriate documentation reasonably
acceptable to Company in order for Contractor to be entitled to
reimbursement. Such expenditures reimbursement shall be billed to
Company through a separate invoice headed “Reimbursement Note”
and attached to the invoice for Services.
7. PERFO RMANCE O F THE SERVICES
7.1 T he Services will be executed by the Contractor at Site as stated
on the Service Order.
7.2 T he Contractor shall provide and maintain sufficient equipment
and qualified Personnel to fulfil its obligations under this Service
Order. T he said Personnel will be readily available to meet with the
Company’s Representative on demand.
7.3 Performance of the Services shall be in accordance with this
Service Order.
7.4 T he Contractor shall consistently produce and maintain
performance and quality of work of the highest possible stan dards as
required and expected by the Company. Where, in the opinion of the
Company, the Contractor is found to be responsible for poor
performance and quality of work deemed detrimental to the interests
of the Company, termination of the Service Order, according to Clause
19 may ensue.
7.5 Contractor undertakes that subject to provision of scope of
Services, Contractor will not without the Company’s prior written
approval perform additional services out of the original scope which
may result in an increase of the compensation to the Contractor.
8. INDEPENDENT CO NTRACTO R
8.1 T he Contractor is acting as an independent contractor in
performing the Services. T he Contractor shall not be deemed an
employee or a partner of the Company, nor shall Contractor have any
authority to act as Company’s agent.
8.2 As such, the Contractor remains fully and solely responsible for
the remuneration and benefits of its Personnel, including, but not
limited to, pension contributions, annual leave, sick leave, long service
leave, overtime, penalty rates, medical care and more generally for any
sum due to its Personnel.
9. CO MPANY RULES AND PRO CEDURES
Contractor shall comply with any and all instructions given by the
Company and/or the Company’s Representative, including current
rules and procedures of the Company in effect at the Company’s Site,
including, but not limited to, the Company’s Safety, Health and
Environment policies and procedures.
10. CO NTRACTO R’S O BLIGATIO NS
10.1 Without prejudice to any specific provisions of this Service
Order, the Services shall be of a good, workmanlike standard and shall
conform to this Service Order. Any goods supplied, includin g
consumables, materials and equipment utilised in the performance of
Services, shall be of good quality suitable for their respective
purposes, free from all defects and imperfections affecting
performance, of current manufacture and highest grade, and in all
respects suitable for its intended use.
10.2 T he Contractor expressly acknowledges that he has made careful
investigation of the nature of the work and locations of the Site. The
Contractor confirms that he has acquired an awareness of local Laws,
customs and the general and local conditions, and acknowledges that
he has fully informed himself with regard thereto.
10.3 Contractor also represents, declares and warrants that:
10.4 i) it has fully and carefully examined all the documents which
form part of the Service Order and any other information made
available by the Company to the Contractor; ii) it has examined all
information which is relevant to the risks, contingencies and other
circumstances which could affect its performance of the Services and
which is obtained by the making of reasonable enquiries; iii) it has
satisfied itself as to the correctness and sufficiency of its tender for the
Services and that the rates and prices stated therein cover the costs of
performing all of its obligations under the Service Order and all
matters and things necessary for the due and proper performance and
completion of the Services; and iv) its entry into the Service Order is
based solely on its own investigations and determinations.
10.5 T he Contractor will provide experienced supervision and skilled
labour that comply with all of the domestic and mining regulations.
10.6 T he Contractor will provide all care and maintenance of its
machinery and equipment, including labour, spare parts and
consumables.
10.7 If in the opinion of the Company, the Contractor has not carried
out its obligations under this Service Order, then the Company shall,
by notice in writing to the Contractor, provide details of the specific
obligations that have not been carried out. If, after seven (7) Days from
the date of such notice, the Contractor fails to remedy such default then
the Company may, without prejudice to any other rights or remedies,
terminate this Service Order by giving to the Contractor a notice of
termination in accordance with Clause 19, but with immediate effect.
11. CO MPANY’S O BLIGATIO NS
-8-
11.1 T hroughout the period of this Service Order, the Company shall
afford the Contractor access to the Site, as the Contractor may require
to perform the Services.
11.2 T he Company shall advise the Contractor of the rules and
regulations that are then in force for the conduct of all its Personnel at
Site and the Contractor shall ensure that its Personnel will comply with
all such rules and regulations.
12. PERSO NNEL
12.1 All Personnel who provide Services at Site are subject to the
approval of the Company’s Representative, which may be granted or
withheld at Company’s sole discretion.
12.2 Accordingly, the Contractor shall promptly remove, at
Contractor’s own cost, any Personnel whose removal is requested by
the Company for any reason and promptly replace him with Personnel
acceptable to the Company.
12.3 T o that end, the Contractor shall provide a list of its Personnel
authorised to access the Site for the execution of the Services and hand
this list to the Company’s Representative.
12.4 No rejection of Personnel shall relieve the Contractor from any
responsibility to perform the Services in accordance with this Service
Order.
12.5 Contractor shall ensure that: i) all its Personnel will have
necessary qualifications and experience to perform the Services and
ensure it does not undertake any other assignment which would be in
conflict with the Contractor’s obligations under the Service Order or
the Company’s interest ; ii) all its Personnel rendering the Services at
Site have undergone medical check-ups at the Contractor’s own costs,
prior to rendering Services at Site and that all are deemed healthy to
perform the Services at Site; iii) all its Personnel are fully trained and
suitably qualified/certified to perform the Services; iv) all its
Personnel will follow and observe the Company’s policies and
procedures including but not limited t o the prevailing Company’s SHE
policies, procedures and code of practice; v) all its Personnel is
available at any time, as required by the Company, for any matter
related to any investigation, including questioning and taking
polygraph detector tests; and vi) all its expatriate workforce will be
fully authorised to work in compliance with DRC regulations
including, but not limited to, being in the possession of work permits
and visas.
13. MEDICAL EVACUATIO N
13.1 T he Contractor shall, at its own expense, subscribe and maintain
in effect at all times during the performance of Services, sufficient
medical evacuation insurance coverage.
13.2 Should the Contractor’s Personnel require medical evacuation
from Site, and if, for any reason, the Company is required by and gives
its consent to the Contractor to assume and fund any medical costs for
the evacuation to medical facilities under escorts, all costs shall be
refunded by the Contractor to the Company.
13.3 T his repayment shall be done either by direct refund or by offset.
In the event that transportation belonging to or chartered by the
Company is used for the medical evacuation, the Contractor will need
a prior written consent from the Company.
14. EXTENSIO N O F TIME FO R CO MPLETIO N
14.1 T he Contractor shall not be entitled to any extension of time for
completion of the Services, unless upon prior written ap proval of the
Company. Should any event be considered by the Contractor as
justification to obtain an extension of time for completion, the
Contractor shall send a written notice to the Company, as soon as
reasonably possible but no later than seven (7) Days prior to the period
of time allowed for the completion for the Services, of its claim for an
extension of time for completing the Services. T he Company shall
notify the Contractor in writing of the number of Days extension of
time granted, or if the claim, or part of the claim, is rejected.
14.2 In the event that the Contractor fails to send a notice as described
in Clause 14.1, and has no written confirmation approving the
extension of time, the Contractor shall have no entitlement to an
extension of time and any principle of Law or equity (including
without limitation those which might otherwise entitle the Contractor
to relief) which might otherwise render the date for completion
unenforceable, shall not apply.
14.3 T he Company may at any time, and for any reason whatsoever,
by notice in writing to the Contractor, extend the time for completing
the Services, in which case, Clause 14.1 shall not apply to the
extension of time.
15. SUBCO NTRACTO R
T he Contractor shall not be entitled to hire a subcontractor without the
prior written consent of the Company. Should the Company provide
such written consent, the Contractor shall remain fully and solely
liable to the Company for the proper execution of the Services. It shall
not oppose the Company any failure, fault, negligence or any other
fact on behalf of its subcontractor to claim exemption from its
obligations under the Service Order. T he Contractor shall indemnify
the Company from any Claim made against it from a subcontractor,
notably payments that the Contractor might owe its subcontractor or
any compensat ion for breach of agreement. In addition, the Contractor
shall comply with the DRC Katanga Province’s Edit No 0002, dated
September 22, 2009, relating to the compulsory subcontracting.
16. SAFETY, HEALTH AND ENVIRO NMENT
16.1 Without prejudice to the provisions of this Service Order, all
Services must be performed in accordance with the following
provisions: i) the Contractor shall be fully responsible at all times, for
the execution of the Services in order to avoid any risk relating to
health and physical integrit y of persons as well as any Damage or harm
to properties and any environmental degradation due to poor
management practices of environmental problems. T o this end, the
Contractor shall regularly inspect, with the due diligence of a
professional, all equipment and tools used by its Personnel for the
carrying out of the Services. T he Contractor shall remain fully and
solely responsible for the discovery of defects and shall bear all the
necessary corrections to be made; ii) the Contractor shall be solely
responsible for both the safety and the health of its Personnel during
the performance of the Services. Under no circumstances will the
Company be responsible for overseeing the implementation of health
and safety programs of the Contractor, the safety of the Contractor's
Personnel or environmental obligations of that latter; iii) all required
safety equipment shall be supplied by the Contractor and the Personnel
shall be regularly instructed in its proper use. T he safety equipment
shall be in accordance with t he Company’s standards; iv) all
Contractor’s Personnel, before commencing work, shall undergo and
pass all safety inductions provided by the Company, perform the
necessary training and obtain the required licenses; v) all Personnel
required to drive vehicles or operate equipment shall at all times be in
possession of the necessary licences required by the Company and the
Law, which shall include, but not be limited to, DRC driving licences.
16.2 T he Company may at any time, whenever it deems necessary,
specify the security measures and procedures for mitigation of
environmental impacts to be implemented for the execution of the
Services.
16.3 In the event that the Contractor does not take the necessary
measures to comply with the Company’s requirements, the latter may
immediately take such measures and charge to the Contractor all
related costs and retain such costs from amounts due to the Contractor.
16.4 T he Contractor represents and warrants that it will comply with
all safety, occupational health and environmental management
applicable in the DRC, including the Company's SHE policies,
procedures and code of practice, of which it declares to have
knowledge.
16.5 T he Contractor shall comply with all applicable legal
requirements and all appropriate non-statutory codes of practice and
guidance notes issued by any Governmental Unit or other regulatory
authorities.
16.6 T he Company and Contractor shall co-operate fully in the area
of SHE and shall ensure that the following principles apply to any
incident on the Site relating to the Contractor's Equipment, Personnel
or products at the Site and/or to any incident relating to the Company's
property, assets, equipment and employees:
16.6.1 Both Parties shall ensure that any incident relating to the
Contractor's Equipment, Personnel or products at the Site and/or to any
incident relating to the Company's property, assets, equipment and
employees having a SHE implication, shall be immediately
communicated orally to the other Party, and promptly confirmed in
writing. In the case of serious incident s, the Company and Contractor
shall jointly establish relevant communication systems to ensure that
the incident is properly and expediently dealt with, taking cognisance
of both the Company’s and Contractor’s respective procedures in
dealing with such incidents;
16.6.2 T he Company’s security and safety personnel shall fully
investigate any incident occurring on Site which involves Contractor’s
Equipment and Personnel working at the Site.
-9-
16.7 Contractor shall keep the area of his works clear of rubbish,
waste materials and debris at all times.
16.8 Any failure to report an incident as provided in Clause 16.6.1
above, and more generally, any failure to comply with Clause 16 of
this Service Order by the Contractor shall be considered by the
Company as a breach of Service Order and may result in the
termination of the Service Order pursuant to Clause 19, but with
immediate effect.
17. CO NTRACTO R’S LIABILITY AND DAMAGES
17.1 T he Contractor represents and warrants that it is fully liable and
will indemnify the Company and bear all the consequences of any
Claim and for any Damage being the consequence, directly or
indirectly, of the Contractor’s Liability, which shall include, but not
be limited to: i) any fraudulent act, negligence, omission, and/or
carelessness by the Contractor, its Personnel or its subcontractor(s) in
carrying out the Services; ii) any failure by the Contractor to fulfil its
contractual obligations under the Service Order; iii) any disclosure,
misuse or fraudulent use of Confidential Information by the
Contractor, its Personnel or subcontractors; iv) any dispute raised by
a third party concerning the fraudulent use or use without permission
of its intellectual property and Know-How made by the Contractor, its
Personnel or subcontractor(s); v) any Damage to the Company’s
property which may arise as a result of, or in the course of carrying out
of the Services; vi) any death or bodily injury which may arise as a
result of, or in the course of, the carrying out of the Services; vii) any
environmental Damage due to any fault or defect in the Services
performed; viii) any other Damage due to any fault or defect in the
Services performed.
17.2 T he compensation due under this Service Order shall continue
until full payment by the Contractor and the obligations of the
Contractor to that effect shall survive the termination of this Service
Order occurring for any cause whatsoever.
17.3 Each compensation due under this Service Order shall be
considered separately and be added, if applicable, to any other
compensation due and cannot in any way limit the generality of
another indemnity.
17.4 T he Contractor shall defend, indemnify and hold harmless the
Company from and against all actions, claims, suits and demands at
any time (including any third party claim) suffered by any such person
as a result of: i) injury to or death of, or loss or damage to the property
of third parties and their employees arising directly or indirectly out of
any negligent, reckless or tortuous act or omission (including strict or
absolute liability) of the Contractor; ii) injury to or death of any
Personnel of the Contractor; or iii) any loss or damage to the property
of the Company, except in the case of either (i), (ii) or (iii) to the extent
that the liabilities, claims, damages, losses, and expenses (includin g
any third party claims) result from the sole negligence of carelessness
actions of the Company.
17.5 T he Company shall not be liable for the payment of any
Damages and/or compensation arising out of the death of, or injury to
a workman, or other person employed by the Contractor or any
subcontractor engaged by t he Contractor unless such death was caused
solely by a grossly negligent act, error or omission of the Company.
18. INSURANCE
18.1 General
a) T he Contractor is required to effect and maintain the necessary
insurance for protection against any of the Contractor's Liability
arising from, or in consequence, of the Services being provided by the
Contractor.
b) T he Contractor shall, at its own expense, subscribe and maintain
in effect at all times during the performance of Services, sufficient
insurance coverage for each occurrence, including, but not limited to,
contractual liability, bodily injury, property damage and personal
injury, insurance of Contractor's personnel (including but not limited
to, liability insurance, medical insurance and medical evacuation) and
insurance on Contractor's Equipment (including but not limited to
automobile public liability insurance).
c) Where design work is undertaken by or on behalf of the
Contractor, the Contractor shall disclose to the Company details of its
relevant professional insurance, which would apply in respect of
liability arising from any act, omission or negligence in such design
work.
d) Should the Contractor make use of subcontractor(s), the
Contractor shall ensure that its subcontractor(s) effect and maintain the
necessary insurance for protection against any of the subcontractors
liability including but not limited to services provided, equipment,
employees and/or medical insurance. T he Contractor hereby will be
liable for and will indemnify the Company against any damages
arising from all acts or omissions of its subcontractor(s).
18.2 Documentary evidence of insurances:
a) T he Contractor shall make available to the Company immediately
upon request documentary evidence of the insurances required for the
Company’s approval.
b) Prior to the commencement of any Services on Site, the Contractor
shall provide the Company’s Representative with the Personnel’
insurance numbers of the Contractor and its potential subcontractors.
18.3 Remedy on failure to insure: if the Contractor fails to provide
the necessary proof that insurance required by this Clause, and any
other insurance required in conformity with the terms of the Service
Order has been effected, or in case where the Company deems that the
Contractor's insurance institution is not adequate to provide the proper
cover as required by the Services, any deficiencies in or non -existence
of such insurance protection, shall not affect or absolve the Contractor
from liability as outlined in the Contractor’s Liability Clause hereof.
19. TERMINATIO N
19.1 T he Company may at its sole discretion terminate this Service
Order at any time, and without cause, by giving a seven (7) Days' prior
written notice to the Contractor. If this Service Order is so terminated
by the Company, the Company shall pay the Contractor the amounts
for the Services carried out and completed at the date of termination
and determined by the provisions of this Service Order.
19.2 T he Company shall be entitled to a refund of any advance
payment made in excess of the Services rendered as per the Certificate
of Completion of the Services. Payment of any amount due by the
Company under this Service Order is subject to the Company’s right
of set off and deduction in respect of any and all amounts owed by the
Contractor to the Company.
19.3 During the said seven (7) Days’ notice period, the Contractor
will take all reasonable steps to minimise costs to the Company.
19.4 In the event of this Service Order being terminated: i) Unless
upon prior written consent of the Company to the Contractor defining
the price and the conditions, under no circumstances the Contractor's
Equipment shall be used, nor remain on Site, at the expiration of the
seven (7) Days' termination notice period; ii) the Contractor will
further surrender all Company’s documents, equipment and other
goods related to the Services.
19.5 T he rights to terminate this Service Order shall not prejudice any
other right or remedy of the Company in respect of the breach
concerned (if any) or any other breach of the Contractor.
20. DEFAULT
20.1 Should the Contractor: i) experience any Insolvency Event; ii)
fail to proceed with the Services with due diligence and in a competent
manner; iii) fail to comply with Company’s SHE requirements; or iv)
otherwise fail to perform or observe any obligation, term, condition or
stipulation contained in this Service Order, the Contractor shall be in
default under this Service Order and Company may exercise any and
all remedies available under applicable Law, and shall additionally
have the right (to the extent not already available under applicable
Law) to: i) take the Services remaining to be completed out of the
hands of Contractor or ii) terminate this Service Order by notice to
Contractor in application of Clause 19, but with immediate effect.
20.2 T he presence or absence of a financial penalty for delay shall not
be deemed to waive or impair Company’s right to declare a default
and exercise all remedies otherwise available upon any failure by
Contractor to achieve the timing requirements (if any) contained in
this Service Order.
21. SUSPENSIO N O F THE EXECUTIO N O F THE SERVICES
21.1 T he Company may suspend, at its sole discretion, the execution
of all or part of the Services, by notifying the Contractor with a one
(1) Day's notice. T he notification shall specify the duration for which
the execution of the Services will be suspended. T he Company may
extend this time by notifying the Contractor with a one (1) Day's notice
before the prescribed deadline for the resumption of the Services.
21.2 T he suspension shall in no way affect the initial term expected
for the completion of the Services. However, any suspension may be
a ground for an extension of the time allocated for the carrying out the
Services pursuant to Clause 14.
- 10 -
21.3 Under no circumstances shall the Company be held liable for
losses, costs, Damages or expenses incurred by the Contractor and
caused by such a suspension.
22. INTELLEC TUAL PRO PERTY
22.1 T he performance of Services may involve Contractor’s use of
the Contractor technology, as amended, supplemented or otherwise
modified from time to time.
22.2 Contractor hereby grants to Company a perpetual, royalty-free,
non-exclusive license with the right to assign or sublicense to its
affiliates as well as in the context of a corporate reorganisation to use
any and all Know-How owned or developed by Contractor in the
performance of the Services.
22.3 Company shall own all right, title and interest to any Know-How
that does not relate to the Contractor technology.
23. FO RCE MAJEURE
23.1 An event of force majeure ("Force Majeure") is constituted by
any act or event, resulting de jure or de facto from a phenomenon
external in nature, unforeseeable and insurmountable beyond the
reasonable control of the Party invoking it and preventing the
execution of its obligations including (but not limited to) any strike,
lock-out or other social unrests, insurrection, riot, act of public
violence, act of terrorism, robbery, rebellion, revolt, revolution, war
(declared or not), civil war, sabotage, blockade, embargo, coup, any
natural disaster, economic crisis, epidemic, cyclone, landslide,
lightning, storm, flood, earthquake or extreme weather conditions, any
fire or explosion, provided that the Party invoking Force Majeure has
taken all reasonable and appropriate care and alternative measures to
avoid the delay or failure to perform the Services, completely or
partially, and its other obligations incumbent upon it under the Service
Order.
23.2 Unless physically impossible, the Party invoking Force Majeure
shall give notice in writing to the other Party, within two (2) Days after
the rise of the event that may be described as Force Majeure, with a
detailed statement specifying the facts defining it and the estimated
deadlines regarding the delay in the execution of its obligations.
23.3 T he Party not claiming Force Majeure shall have a period of two
(2) Days from the day after the day of receipt of the notice to contest
the content of it, failing which the constitution of Force Majeure shall
be considered accepted. Any dispute raised by the Parties as regards
Force Majeure shall be settled in accordance with Clause 33.
23.4 T he Party invoking Force Majeure shall make every effort and
take all necessary measures to limit the scope and thus protect the
interests of the other Party by protecting it from problems and losses.
23.5 In case of any delay by either Party in the execution of its
contractual obligations due to a case of Force Majeure, the prescribed
time for the execution thereof shall be extended automatically for a
period equal to the related delay.
23.6 T he extension thus made shall entail no penalty at the expense
of the Parties.
23.7 When Force Majeure represents a final obstacle to the execution
of the Service Order, the Party not invoking Force Majeure may then
terminate the Service Order by giving two (2) Days' written notice to
the other Party.
24. CO NFIDENTIAL INFO RMATIO N
24.1 Contractor shall keep confidential, and shall not disclose to third
parties without the prior written consent of the Company, any
Confidential Information.
24.2 Contractor shall, and does hereby agree to, indemnify, defend
and hold harmless Company from and against any and all losses
directly or indirectly arising out of any violation of this Clause.
24.3 Contractor agrees that upon any breach by Contractor of this
Clause, Company will suffer irreparable harm. T herefore,
notwithstanding the dispute resolution provisions set forth below,
Contractor agrees that Company shall be entitled to seek immediate
injunctive relief from any court of competent jurisdiction upon any
breach by Contractor of any restriction contained in this Clause, in
addition to seeking indemnity, Damages or other appropriate relief.
25. SECURITY AND PRO TECTIO N O F THE SERVICES
25.1 Contractor shall be responsible for the provision and
maintenance of security for its Personnel, materials and Contractor’s
Equipment and all materials that are provided by the Company to the
Contractor.
25.2 Contractor shall take all practical precautions and provide
protection to safeguard all works, materials and equipment.
25.3 Contractor shall take all necessary measures to ensure that its
Personnel circulates only in areas of the Company's premises or
installation that are concerned by the execution of the Services.
25.4 Contractor shall, and does hereby, indemnify, defend and hold
harmless Company from and against any, Damages of the Contractor’s
Equipment or materials issued by the Company arising out of or in
connection with the performance of the Services.
26. WARRANTY
26.1 Contractor warrants that the Services shall be performed with
due professionalism and in accordance with industry standard practice
and the more specific qualitative and/or quantitative requirements (if
any) specified in this Service Order.
26.2 Contractor agrees and undertakes to rework or re-perform, at
Contractor’s sole costs and expenses, any Services or workmanship
which are discovered to be defective or fail to conform to the foregoing
requirements and obligations, either during the duration of the Service
Order or during the 24-month' period following completion of the
Services. Should Contractor fail upon Company’s written request to
promptly rework or re-perform any such defective or deficient
Services or workmanship as necessary to bring them into comp liance
with the requirements of this warranty, then such defect or deficiency
may be remedied by Company (either itself or through a-third party of
its choosing). In such event, Contractor shall be liable to reimburse
Company for any and all costs incurred to correct such defect or
deficiency.
26.3 T he liability restrictions set forth elsewhere in the Service Order
shall not limit or restrict Contractor’s obligations under this warranty
Clause.
27. ASSIGNMENT
27.1 T he Contractor shall not in any way assign this Service Order or
any part thereof without the prior written consent of the Company.
27.2 T he Company may assign, subject to a seven (7) Days' notice
given to the Contractor, all rights and obligations under this Service
Order to any Person of its choice who will accept all the obligations
and rights of the Company by virtue of this Service Order.
28. FEES, LAWS, TAXES AND CO NTRIBUTIO NS
28.1 Compliance with DRC fees, Laws, taxes and contributions as a
DRC registered contractor
28.1.1 T he Contractor shall comply with the DRC’s Laws and pay
any and all taxes, duties, excises, fees, royalties, assessments and other
charges in connection with the performance of the Services that may
be claimed by any authority (such as tax, parafiscal, custom, social,
social security, or any other authority).
28.1.2 In particular, the Contractor shall be fully and solely
responsible for the compliance with and the payment of all national
and local taxes as mentioned in particular, but not limited to, DRC
ordinance-laws, mining code, e.g. VAT , taxes on profits and profit
margins, payroll tax, all forms of tax on salary income IPR, IERE,
INSS ("Institut National de la Sécurité Sociale"), INPP, work permits,
residency cards, visas, taxes on dividends and parafiscal taxes,
customs duties, tax or customs deposit, tax instalments, withholding
taxes, retirement guarantee costs, whether for mining services or
otherwise, in any other case and at any applicable rate; and any other
taxes that may be charged by any of the DRC’s authorities.
28.1.3 T he Contractor must meet the operating conditions required
for the implementation of commercial activities in the DRC. As such,
any official document issued by the Contractor shall provide: i) its
registration number with the T rade and Personal Property Credit
Register (RCCM); ii) its national identification number; iii) its tax
number; iv) its DRC VAT registration certificate; and v) all its invoice
shall mention the rate and amount of the VAT charged.
28.2 Compliance with DRC fees, Laws, taxes and contributions as a
foreign entity.
28.2.1 Each Party shall be liable for its own taxes. T he Contractor
shall be responsible, at its own expense, to seek all necessary advice
from third party counsels to comply with any DRC laws and taxes.
28.2.2 Should any withholding tax be applicable on the Services
carried out by the Contractor in the DRC, which would not form a tax
credit in DRC or abroad, nor be refundable for the Contractor, the
Price of the Services will be increased accordingly after Company's
written approval.
28.2.3 Although the Parties agree to take reasonable and
appropriate steps to minimise the amount of any withholding taxes,
the Contractor will remain solely responsible for providing evidence,
valid residence certificate duly stamped, and any document required
- 11 -
by any tax authorities to apply any exemption or a reduction of any
withholding taxes, and/or to introduce a claim for the refund to the
relevant authorities
28.2.4 Should the Contractor qualify as a permanent establishment
in DRC as per DRC law and/or any tax treaty provisions by satisfying
one of the conditions below (non-exhaustive list): i) conducting
commercial activities or performing the Services in DRC for a
duration longer than 6 months; or ii) performing the Services with
significant equipment on site including, but not limited to, offices, car
rentals, workshops; or iii) hiring DRC local workforce; the Contractor
warrants that it will take all necessary measures to fully comply with
all applicable legal or tax provisions and meet the operating conditions
required for the implementation of commercial activities in the DRC.
28.2.5 Should the Contractor be required to implement any
structure to meet the operating conditions in the DRC, such as, but not
limited to, register a branch, incorporate a subsidiary, elect domicile
in the DRC (the "Contractor's DRC Entity"), the provisions stated in
Clause 28.1 shall apply to the Contractor and the Services shall be
transferred to the Contractor's DRC Entity subject to the Company's
priori written approval.
28.2.6 Should the Contractor is considered as meeting the
permanent establishment conditions in DRC and the Contractor
complies with all legal regulations in DRC, the Parties further agree
that they will meet and negotiate in good faith under which conditions
the performance of the Services shall be carried out by the Contractor
and/or the Contractor's DRC Entity.
29. BUSINESS ETHICS
29.1 T he Contractor hereby warrants that it will not, directly or
indirectly, and it has no knowledge that other persons will, directly or
indirectly, make any payment, gift or other commitment to its or the
Company’s suppliers or customers, to government officials or to
agents, directors and employees of the Company or any other party in
a manner contrary to applicable laws (including but not limited to
legislation enacted by member States and signatories implementing
the OECD Convention Combating Bribery of Foreign Officials) and
shall comply with all relevant laws, regulations, ordinances and rules
regarding bribery and corruption.
29.2 Nothing in this Service Order shall render the Company liable to
reimburse the Contractor for any such consideration given or
promised.
29.3 Contractor shall immediately report in writing to the Company,
if any of the Company’s employee, its affiliates or suppliers solicits
any payment or any other thing of value whether for the employee or
for any other Person outside of the normal compensation payable
under this Service Order.
29.4 T he Contractor’s material violation of any of the obligations
contained in this Clause may be considered by the Company to be a
material breach of this Service Order and shall entitle the Company to
terminate this Service Order with immediate effect and without
prejudice to any further right or remedies on the part of the Company
under this Service Order or applicable law. T he Contractor shall
indemnify the Company for all liabilities, damages, costs or expenses
incurred as a result of any such violation of the above mentioned
obligations and termination of this Service Order.
29.5 T he Company has established the following reporting channels
where the Contractor and its employees may report suspected
violations of applicable laws, policies or standards of conduct:
Web portal: www.violation-katanga.com
T elephone: +243 970019000 (DRC toll free number)
T elephone: +27 800000847 (SA toll free number)
T elephone: +41 800944785 (Switzerland toll free number)
30. PARTIAL NULLITY
30.1 In the event that any provision of this Service Order is declared
invalid or unenforceable by any court or body of competent
jurisdiction or under any Law, regulation or order that may be applied
to the Service Order as well as for any other reason, such provision
shall be void and unenforceable only in this respect and the validity
and enforceability of any other provision of this Service Order shall
not be affected.
30.2 However, if the nullity relates to a key and decisive provision of
the Service Order without which a Party would not have contracted or
would have contracted but on different terms, such provision shall be
subject to a new version recorded by an Amendment signed by the
Parties. Without an agreement between the Parties within ten (10)
Days after the annulment of that Clause, the proceedings under Clause
33 may be initiated by the most prompt Party.
31. NO TIFICATIO NS AND ADDRESS FO R SERVICES
31.1 Address for service
For the execution of this Service Order, the Parties are legally
domiciled at the following addresses respectively:
For the Company: As per the address details relating to the Company
provided on the first page of the Service Order.
For the Contractor: As per the address details relating to the Contractor
provided on the first page of the Service Order.
31.2 Any notification or communication under this Service Order
shall be deemed sufficiently given if it is validly made in writing, by
all manner of notification with receipt, and delivered to either Party at
the address given above.
31.3 T he notice period provided by the notification only starts the day
after the submission of the notification and ends on the last day of the
period. If however, this period ends on a Saturday, Sunday or a holiday
or day off in the DRC, the delay will be automatically extended until
the first next business day.
32. GO VERNING LAW
T he Parties agree that this Service Order shall be governed by and
construed in accordance with the Laws of the DRC.
33. SETTLEMENT O F DISPUTES
34. Amicable Settlement
In case of dispute or disagreement between the Parties arising out of
the Service Order the Company’s and Contractor’s Representatives
will try to reach an amicable settlement. In the absence of an
agreement reached between them within seven (7) Days after the
occurrence of the event giving rise to the dispute or the knowledge of
it by the Party raising the dispute, the dispute shall then definitely be
referred to competent courts of the DRC as provided in Clause below.
35. T he Parties consent and submit to the jurisdiction of the
Commercial Court of Lubumbashi, Katanga Province, DRC, in respect
of all disputes between them relating to the Service Order, provisional
or conservatory measures pursuant to this clause.
36. CUMULATIVE RIGHTS
T he rights and obligations of Parties under the Service Order are
cumulative of all rights and obligations provided for under the
mandatory Laws of the DRC.
- 12 -