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FAM : Service Provider Agreement : Towing Providers 1

SERVICE PROVIDER AGREEMENT

entered into between

FIRST ASSIST MANAGEMENT (PTY) LTD

and

Company Registration No :


TABLE OF CONTENTS

1. INTERPRETATION ........................................................................................................................................ 3

2. DEFINITIONS ................................................................................................................................................. 3

3. PREFACE ...................................................................................................................................................... 6

4. APPOINTMENT ............................................................................................................................................. 6

5. DURATION ..................................................................................................................................................... 6

6. SERVICES ..................................................................................................................................................... 7

7. PROCESS ...................................................................................................................................................... 7

8. SERVICE LEVELS ......................................................................................................................................... 7

9. PAYMENT FOR SERVICES .......................................................................................................................... 8

10. OBLIGATIONS OF THE SERVICE PROVIDER ........................................................................................ 8

11. REPORTING AND ACCESS ..................................................................................................................... 9

12. VEHICLE CHECKLIST............................................................................................................................... 9

13. INSURANCE ............................................................................................................................................ 10

14. DAMAGES AND ADDITIONAL COSTS ................................................................................................... 10

15. INDEMNITY ............................................................................................................................................. 10

16. WARRANTIES ......................................................................................................................................... 11

17. CONFIDENTIALITY ................................................................................................................................. 12

18. PROPRIETARY MATERIALS .................................................................................................................. 12

19. FAM LOGO .............................................................................................................................................. 13

20. RELATIONSHIP OF THE PARTIES ........................................................................................................ 13

21. TERMINATION ........................................................................................................................................ 13

22. BREACH .................................................................................................................................................. 14

23. VIS MAJOR .............................................................................................................................................. 14

24. ASSIGNMENT ......................................................................................................................................... 14

25. MEDIATION ............................................................................................................................................. 14

26. WHOLE AGREEMENT ............................................................................................................................ 15

27. NON VARIATION ..................................................................................................................................... 15

28. NON WAIVER .......................................................................................................................................... 15

29. DOMICILIA ............................................................................................................................................... 16

30. NOTICES ................................................................................................................................................. 16

31. CO-OPERATION ..................................................................................................................................... 17

32. SEVERABILITY ....................................................................................................................................... 17

33. GENERAL ................................................................................................................................................ 17

34. REPRESENTATIONS .............................................................................................................................. 17


1. INTERPRETATION

1.1. In this Agreement, unless a contrary intention clearly appears:

1.1.1. In this Agreement, clause headings are for convenience and shall not be used in its

interpretation or nor modify nor amplify the terms of this Agreement nor any clause thereof.

1.1.2. Unless the context clearly indicates a contrary intention, an expression which denotes any

gender includes the other genders; a natural person includes an artificial or juristic person and

vice versa; the singular includes the plural and vice versa.

1.1.3. Any reference to a statutory enactment is to that enactment as at the Signature Date and as

amended or re-enacted or substituted from time to time thereafter and includes all and any

statutes, ordinances, regulations and by-laws promulgated in terms thereof from time to time.

1.1.4. If any provision in a definition is a substantive provision conferring rights or imposing

obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be

given to it as if it were a substantive provision in the body of the Agreement.

1.1.5. Where figures are referred to in numerals and in words, if there is a conflict between the two

the words will prevail.

1.1.6. Each term and condition of this Agreement is a separate and independent term or condition, as

the case may be, and is severable from all other terms and conditions, and the invalidity of any

term or condition shall not affect its severability from this agreement or the validity and

enforceability of any other terms and conditions contained in this Agreement.

1.1.7. The expiry or termination of this Agreement shall not affect such of the provisions of this

Agreement which expressly provide that they will operate after any such expiration or

termination or which of necessity must continue to have effect after such expiration or

termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.1.8. References to a Party will include a reference to that Party’s agents, representatives,

successors in title and assigns allowed at law.

2. DEFINITIONS

2.1 The following expressions shall bear the meanings assigned to them below and cognate expressions

bear corresponding meanings –

2.1.1 "Accident" means damage to body panels or the undercarriage, wheels or suspension of a

Vehicle due to a collision with another vehicle, pothole or any other object;

2.1.2 “Accident Tow” as described under Incident Types in Annexure C;


2.1.3 "Agreement" means this agreement including all annexures annexed hereto;

2.1.4 “Breakdown" means an occasion whereby a Vehicle cannot be driven as a result of a warranty

related electrical or mechanical failure;

2.1.5 “Business Day" means any day of the week other than a Saturday, Sunday or public holiday;

2.1.6 “Call Out” as described under Incident Types in Annexure C;

2.1.7 "Code of Conduct" means the code of conduct, as set out in Annexure A, including any

amendments as confirmed from time-to-time, which Service Provider is required to comply with;

2.1.8 “Confidential Information” means all information, commercial, financial, technical or otherwise

relating to the business affairs or methods of the parties to this agreement, disclosed to or

otherwise obtained by the other Party in connection with this Agreement, whether or not it is

marked or designated as confidential;

2.1.9 “Customers" means any owner or driver of a Vehicle to whom Services has to be rendered to

by the Service Provider as authorised by FAM in terms of this Agreement;

2.1.10 “Days” means calendar days inclusive of public holidays;

2.1.11 “Disciplinary Code” means the code that confirms serious offenses and related disciplinary

action(s) which may be imposed should the Service Provider be found in breach or guilty of the

alleged offence, as set out in Annexure B;

2.1.12 “Duration” means the period as contained in this Agreement for as long as this agreement is

not terminated by either Party in terms of this Agreement;

2.1.13 "Effective Date" means the Signature Date of this Agreement or such other date as the Parties

may agree to in writing;

2.1.14 “FAM” means First Assist Management (Proprietary) Limited, a company duly incorporated

with limited liability having its principal place of business at 121 10th Road Kew, 2090;

2.1.15 “Incident Types” describes each Service which the Service Provider warrants it has the

necessary competency to perform, as set out in Annexure C;

2.1.16 “Rate Schedule” means the prescribed rates payable in respect of the Services rendered by the

Service Provider as set out in Annexure E;

2.1.17 "Region" means the non-exclusive region to which the Service Provider is assigned by FAM;

2.1.18 "Register of Recovery Service Vehicles" means the recovery service vehicles, which the

Service Provider shall utilize to provide the Services to FAM;


2.1.19 “Response Times” means the time from dispatching the Service Provider (dispatch), to the time

the Customer is assisted (pick up), including the time from assistance rendered (pick up) to

closing of the case (off loaded);

2.1.20 “Roadside Assistance” as described under Incident Types in Annexure C;

2.1.21 “Rural” means any area that is not urban as per the definition;

2.1.22 “Services” means the rendering of any Incident Type as set out in Annexure C;

2.1.23 “Service Provider” means the entity with whom FAM is concluding this Agreement with,

including its partners, shareholders, members, directors, employees, agents and or sub-

contractors;

2.1.24 “Signature Date” means the date the last Party signs this Agreement;

2.1.25 “the Parties” means FAM and the Service Provider and the word “Party” will refer to any one of

them;

2.1.26 “Trade Tow (Breakdown Tow)" as described under Incident Types in Annexure C;

2.1.27 “Urban” means any major metropolitan area or city;

2.1.28 “Vehicle” means any authorised motor vehicle, in the possession of a Customer, in respect of

which Services are rendered.

2.1.29 “Company Particulars Form” means the Company Particulars Form which the Service Provider

is required to complete, confirming all contact and domicilium details of the Service Provider,

which shall be deemed as true and correct unless indicated otherwise in writing to FAM;

2.2 Where any term is defined within a particular clause other than shown in this clause that term shall bear

the meaning ascribed to it in that clause wherever it is used in this Agreement.

2.3 The terms of this Agreement having been negotiated, the contra proferentem rule shall not be applied in

the interpretation of this Agreement.


3. PREFACE

3.1 WHEREAS FAM contracts to Clients to provide confirmed Services to its Customers;

3.2 AND WHEREAS the Service Provider is qualified and possesses sufficient skills and capabilities

including technical expertise, where required, to perform the Services for the Duration and at the Rates

as confirmed in this Agreement;

3.3 WHEREAS FAM and the Service Provider have reached an agreement in regard to the rendering of the

Services to Customers as recorded in this Agreement.

4. APPOINTMENT

4.1 FAM hereby appoints the Service Provider, who hereby accepts such appointment, to provide

Customers with the Services within the Region in terms of the provisions of this Agreement.

4.2 The Service Provider acknowledges and accepts that it is not appointed as the sole and exclusive

Service Provider to carry out the Services within the Region.

5. DURATION AND NOTICE

5.1 This Agreement shall, subject to clause 22 hereof;

5.1.1 commence on the Effective Date; and

5.1.2 continue for a period of 12 (twelve) months ("the Initial Period"), with an automatic renewal.

5.2 Should either Party wish to terminate this Agreement at the end of the Initial Period, such Party shall be

obliged to give the other Party written notice ("Notice") to such effect to be delivered to the other Party at

least 1 (one) calendar months prior to the conclusion of the Initial Period, failing which the provisions of

clause 5.3 hereunder shall apply.

5.3 Should the notice referred to in clause 5.2 not be given at least 1 (one) calendar months prior to the

conclusion of the Initial Period, this Agreement shall automatically renew for a further 12 months subject

to either Party's right, to terminate the Agreement on each Anniversary Date, on written notice to the

other, to be given 1 (one) calendar months prior to the expiry of any Anniversary Date of the Renewal

Period.

5.4 Upon lawful termination of this Agreement, by either Party all outstanding invoices, except invoices

which are the subject of complaints or queries, shall become due and payable within 90 (ninety)

calendar days of date of invoice.


6. SERVICES

6.1 As from the Effective Date, the Service Provider shall render the Services to Customers within the

Region.

6.2 The Services referred to in 6.1 shall be rendered by the Service Provider in accordance with the

Agreement.

7. PROCESS

7.1 FAM will, through its contact centre, contact the Service Provider and provide the necessary particulars

and authorisation to render the Services. Refer to Annexure A and C in respect of confirmed terms and

conditions.

7.2 FAM will follow up with the Customer and Service Provider to ensure that the Services are provided

promptly and adequately.

7.3 Upon successful completion of the authorised Service, the Service Provider will provide FAM with an

invoice as prescribed in this Agreement. Refer to Annexure C, D and E in respect of confirmed terms

and conditions.

7.4 FAM shall deal directly with Service complaints / queries and will forward it to the Service Provider,

where necessary, for resolution.

7.5 The Parties may agree in writing on a different process from time to time.

8. SERVICE LEVELS

8.1 In line with Service Level Agreements as contracted with FAM Clients, FAM requires the Service

Provider to maintain the following Response Times (as per the Service Provider’s area of operation)

within a 40 km roundtrip:

8.1.1 Urban area between 30 - 60 minutes; and/or

8.1.2 Rural area within 60 minutes.

FAM will monitor the Response Times in terms of the Disciplinary Code as set out in Annexure B.

8.2 FAM will measure the amount of Services that are offered to a Service Provider which is either accepted

or declined by the Service Provider, whereby

8.2.1 the Service Provider outrights decline the Service offered; and

8.2.2 the Service Provider accepts the Service offered and then at a later stage cancel.

These measurements will be monitored and communicated and discussed with the Service Provider

from time to time.


In the instance whereby a Service Provider declined more than 10% of total Services offered in any one

month, the Service Provider will be subject to the terms and conditions of the Disciplinary Code as set

out in annexure B.

8.3 In the instance whereby a Service Provider do not respond or abandon a Customer, without immediate

notification to the FAM call centre, FAM will consider such an action as a material breach of this

agreement, and the Service Provider will be subject to the terms and conditions Disciplinary Code as set

out in annexure B.

9. PAYMENT FOR SERVICES

9.1 FAM shall remunerate the Service Provider for the authorised Services rendered in accordance with the

Incident Types as set out in Annexure C and Rates Schedule as set out in Annexure E.

9.2 All amounts due and payable in terms of this Agreement shall be affected by Electronic Funds Transfer

("EFT"), unless otherwise agreed to in writing.

9.3 All amounts referred to in the Rate Schedule are exclusive of Value Added Tax (VAT).

9.4 The amounts referred to in the Rate Schedule will be reviewed from time to time, irrespective of the

Signature Date and FAM may amend the amounts having regarded, among other considerations, the

consumer Price Index, Diesel Price increases etc. The increase shall at all times be within the

discretion of FAM.

9.5 No payment shall be made for any Service rendered by the Services Provider except for Services

authorised, detailed and set forth in this Agreement.

9.6 If a Service complaint or query has been received regarding the Service rendered, payment shall be

retained pending the successful resolution of the complaint or query.

9.7 FAM will collect a 10% (ten per cent) settlement discount on all payments made to the Service Provider.

10. OBLIGATIONS OF THE SERVICE PROVIDER

10.1 The Service Provider shall at all times:

10.1.1 Conduct itself in a professional manner and render the highest possible level of service to

Customers and refrain from any activity which could prejudice FAM or the Customer.

10.1.2 Complete a comprehensive checklist on the Vehicle prior to transportation;

10.1.3 Accept liability for any damage to the transported Vehicle for the duration of the Service being

provided, until such time that the Vehicle has been accepted and signed for;


10.1.4 Ensure that the recovery vehicles used is suitably equipped and able to provide efficient

recovery and transportation of the disabled Vehicle;

10.1.5 Observe and adhere to fair and proper business practises;

10.1.6 Attain and maintain the highest possible service delivery at all times;

10.1.7 Ensure that procedures are in place to manage the entire process of Services rendered with

efficiency and integrity;

10.1.8 Not misrepresent itself, or the authorised Service, at any time.

11. REPORTING AND ACCESS

11.1 The Service Provider shall throughout the period of this Agreement –

11.1.1 Keep and maintain accurate and detailed records relating to the Services provided to

Customers as authorised by FAM;

11.1.2 Allow FAM, or its representatives, to inspect such records at its premises without prior

notice, whereby FAM will be further allowed to make copies of related records and/or

take extracts there from.

12. VEHICLE CHECKLIST

12.1 The Service Provider shall be responsible for completing a comprehensive checklist on the

Vehicle prior to transportation, which include confirmation of existing damage, scratches and

dents to the vehicle, including any specific equipment / valuables / assets which remain in the

Vehicle for any reason whatsoever.

12.2 The checklist should be kept for a minimum of 6 (six) months following the incident to assist in

a complaint or enquiry which might result following the Service rendered.

12.3 The Service Provider is required to ensure the Customer signs the completed checklist prior to

transportation. In the instance whereby the Customer is incapacitated for any reason

whatsoever, the Service Provider is required to obtain the signature of a witness at the incident.

12.4 In the instance whereby a Service Provider is not able to present a signed checklist, on

request, and such checklist is required to resolve a complaint or enquery lodged by a

Customer, FAM will have no alternative but to side with the Customer in determining the

defaulting party.


13. INSURANCE (Third Party Goods in Transit)

13.1 The Service Provider shall procure and maintain, for the duration of this Agreement, comprehensive

insurance, including public liability insurance in the amount of no less than R2 500 000 (two and a half

million Rand), in respect of any claims that may arise whilst providing the Services to Customers, with

an insurer(s) approved in writing by FAM.

13.2 The Service Provider shall provide FAM with proof of insurance(s) as set out in 13.1 on request. Should

the Service Provider fails to do so, without prejudice to FAM's rights, FAM shall be entitled to pay such

premiums on behalf of the Service Provider and recover same from the Service provider or to summarily

terminate this Agreement.

14. DAMAGES AND ADDITIONAL COSTS

14.1 In the event of the Service Provider, whilst performing assigned Services, cause damage to or give rise

to any additional costs over and above that of the authorised Service, FAM will hold the Service Provider

responsible and liable for damages and/or additional costs incurred. This will include, but not limited to,

repairs to damages caused, reimbursements of overcharges etc.

15. INDEMNITY

15.1 The Service Provider hereby indemnifies and hold harmless FAM, its subsidiaries, holding company,

shareholders, directors, officers, employees and agents against any claim, suit, demand, loss, damage,

expense or liability (including those that may be asserted by a third party) that may result from, arise out

of or relate to –

15.1.1 the Service Provider’s performance under this Agreement;

15.1.2 the Service Provider's failure to perform its obligations under this Agreement;

15.1.3 caused by the negligent acts, errors or omissions of the Service Provider;

15.1.4 the Service Provider’s breach of this Agreement.

15.2 The Service Provider undertakes to reimburse FAM for all damages and expenses (including attorney

and Customer costs) as incurred by FAM arising from any such claim or suit, referred to in Clause 15.1.

15.3 Where a claim is made by a third party against FAM for which it is entitled to be indemnified by the

Service Provider in terms of 15.1, FAM shall provide such assistance in defence and settlement of such

claim or action as the Service Provider may reasonably request at the expense of the latter.


15.4 The Service Provider consents to FAM setting off any amount, which it contends is owed to any FAM

Customer arising from any act or omission of the Service Provider, from any amount that is owed by

FAM to the Service Provider.

16. WARRANTIES

16.1 The Service Provider hereby warrants that:

16.1.1 Services shall be performed by employees, agents, representatives or sub-contractors who

possess the necessary competency to perform such Services;

16.1.2 its employees, agents, representatives or sub-contractors are licensed drivers, sufficiently

trained and qualified to render safe and efficient Services who will conduct themselves in

accordance with this Agreement, the Road Traffic Act and any other applicable law or

regulation;

16.1.3 Recovery Service Vehicles and equipment used to render the Services:

16.1.3.1 meets the certificate of fitness requirements and are registered as contained in the

Road Traffic Act and any other applicable laws or regulations;

16.1.3.2 will be maintained and kept in that standard;

16.1.3.3 is suitably equipped for the safe and efficient recovery and transportation of the

particular disabled Vehicle;

16.1.3.4 prominently display relevant Service Provider details on both sides of the applicable

Vehicle used to render Services.

16.1.4 a flatbed truck is the only acceptable means of transporting a disabled Vehicle;

16.1.5 will timeously inform FAM of any deviations to the agreed service levels and estimated time of

arrival, as confirmed in clause 8, due to matters beyond the Service Provider’s control i.e. peak

hour traffic, road works, weather conditions, location of the Vehicle etc.;

16.1.6 it will comply with all the annexures to the Agreement which governs the relationship and

Services, of which FAM retain the right to amend from time to time.

16.2 FAM, or its representative shall be entitled to inspect the Service Provider’s vehicles, premises and

operational processes utilized to render the Services from time to time.


17. CONFIDENTIALITY

17.1 All information contained in this Agreement inclusive of the annexure hereto, shall constitute

Confidential Information.

17.2 The Parties shall at all times maintain confidentiality with respect to the details of this

agreement and will not use the content or nature of this Agreement or the name of the other

Party (or of other company in the Group of Companies of which the other Party forms part) in

any publicity advertisement or other disclosure, including but not limited to, media releases,

public announcements and public disclosures, with regard to this Agreement without the prior

written consent of the other Party.

17.3 Should confidential information be disclosed by the Disclosing party to the other Party in the

course of activities undertaken between the Parties, the Receiving Party shall accept and hold

such confidential information in confidence.

17.4 The Receiving Party shall not disclose directly any confidential information to any person not a

party to this Agreement, save and except as expressly required for the purposes of execution of

this Agreement. Where disclosure of Confidential information to a Party’s employees is

necessary in order to accomplish activities undertaken between the parties, the Receiving Party

will do so only to those of its employees who require to know such information and who have

been duly notified of and have undertaken to be bound to respect the confidential nature of

such information.

17.5 The Receiving Party will exercise proper internal control over any documentation containing

Confidential information and the Receiving Party will not reproduce nor make copies of any

Confidential information except as required in order to accomplish the purposes of the activities

being undertaken in terms of this Agreement or as duly authorised by the other party

beforehand in writing.

17.6 The confidentiality provisions of this Agreement will in each instance of confidential disclosure

remain in full force and effect for a period of 5 (five) years from the date of disclosure except

where otherwise mutually agreed in writing by the Parties hereto.

18. PROPRIETARY MATERIALS

18.1 In the course of performing their obligations in terms of this Agreement, the Service Provider

may use products or systems that are proprietary to FAM. The Service Provider will not have,

nor obtain any rights in any such product or system other than the limited, non-transferable,

non-assignable, non-exclusive right to use such product or system save and except if

authorized in writing by the other from time to time.


19. FAM LOGO

19.1 If required by FAM, the Service Provider shall be obliged to display the logo of FAM on all

recovery vehicles which will be utilised to provide the required Services.

19.2 The Service Provider will be required to confirm details of the branded recovery vehicles, which

will be incorporated in an appropriate register administered by FAM.

20. RELATIONSHIP OF THE PARTIES

20.1 It is understood and agreed by the Parties hereto that they shall at all material times operate as

independent contractors and that nothing contained in this Agreement shall be construed as constituting

a partnership, joint venture or the like as between the Parties.

20.2 No Party shall make or give any express or implied agreements, warranties, guarantees or

representations or incur any debt in the name of or on behalf of the other than in the normal course of

carrying out their respective duties in terms of this Agreement, unless specifically authorised to do so, or

represent that their relationship is other than as specifically set out and incorporated in this Agreement.

20.3 The Service Provider will be solely and entirely responsible for its acts and for the acts of its agents,

employees, servants, sub-contractors or representatives during the performance of this Agreement.

20.4 It is recognised that the Service Provider may, or will be performing services during the terms of this

Agreement for other parties, provided however that such performance or other services hall not conflict

with or interfere with the Service Providers ability to perform the Services. The Service Provider agrees

to resolve any such conflicts of interest in favour of FAM.

20.5 The Agreement does not establish exclusivity in any way whatsoever.

21. TERMINATION

21.1 Notwithstanding clause 22, FAM shall, without prejudice to any other rights which it might be entitled to

in law, be entitled to immediately cancel the Agreement and/or claim damages by giving written notice to

this effect to the Service Provider, whereby the Service Provider –

21.1.1 takes steps to place itself, or is placed, in liquidation, whether voluntary or compulsory, or in

judicial management, in either case whether provisionally or finally; or

21.1.2 takes steps to surrender that Party's estate or that Party is sequestrated, whether provisionally

or finally; or

21.1.3 takes steps to de-register itself or is de-registered; or

21.1.4 seeks a compromise with its creditors generally.


22. BREACH

22.1 If either Party commits a breach of any of the provisions of this Agreement, subject to clause 25 and the

Disciplinary Code as set out in Annexure B, and fails to remedy such breach within 48 (forty eight) hours

(provided if the relevant breach is not capable of being remedies within 48 (forty eight) hours within such

longer period as the defaulting party may prove to be reasonable in the circumstances) after receipt of

written notice from the other Party calling upon it to remedy such breach then the innocent Party will be

entitled, without prejudice to any other rights which it may have in terms of this Agreement and/or at law,

to-

22.1.1 Cancel this Agreement and claim such damages as it may have sustained from the defaulting

party; or

22.1.2 Claim immediate performance by the defaulting Party of all of its obligations in terms of this

Agreement whether or not the due date for performance will otherwise have arrived.

22.2 The termination of this Agreement, for whatever reason, will not affect the rights of either of the Parties

which specifically or by their nature survive the termination of this Agreement.

22.3 The Disciplinary Code, as confirmed in the Annexures B, governs specific offences and related

consequences that may occur whilst performing a Service to FAM.

23. VIS MAJOR

23.1 Vis Major shall include but not be limited to strikes, lock-outs, shortage of labour, civil commotion, riots,

war, threat of or preparation of war, fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence,

power outage, telecommunications and internet failure beyond the control of FAM or any other cause of

contingency beyond the control of the Parties.

23.2 In the event of a vis major FAM shall be under no liability for loss or injury suffered by the Service

Provider or a Customer or a dependant of a Customer as a result thereof.

24. ASSIGNMENT

24.1 The Service Provider may not cede, assign or in any manner make over, or purport to cede, assign or

make over this Agreement or any rights and / or obligations under this Agreement, or any part thereof, to

any person whomsoever, including a sub-contractor without the written consent from FAM.

25. MEDIATION

25.1 Any difference between the Parties which cannot be resolved amicably will be referred for mediation on

an informal basis to the Operations Director of either Party (“the facilitators”).


25.2 The facilitators will attempt to assist the Parties in arriving at a settlement and, if no settlement is

reached, the facilitators will submit to the Parties a settlement proposal which they consider to be

equitable to both Parties and efforts to reach a settlement will continue until a settlement is reached or

one of the Parties withdraws from the mediation process or the facilitators conclude and informs the

Parties that further efforts will be to no avail.

25.3 In the event of a settlement being reached, the facilitators will draft a written settlement document

incorporating all the settlement terms and, if acceptable to the Parties, will have the same formally

signed by them.

26. WHOLE AGREEMENT

26.1 This Agreement constitutes the whole of the Agreement between the Parties relating to the subject

matter thereof.

26.2 Not terms and conditions, whether oral or written, and whether express or implied, other than the terms

and conditions recorded in this Agreement will be of application to this Agreement.

26.3 No Party will be bound by any express or implied term, representation, undertaking, warranty, promise

or the like not recorded in this Agreement, whether or not the same induced the conclusion of this

Agreement and / or whether or not the same was negligent.

27. NON VARIATION

27.1 No amendment, addition, variation, novation or consensual cancellation of this Agreement or any

provision or term thereof or of any agreement, bill of exchange or other document issued or executed

pursuant to or in terms of this Agreement and no settlement of any disputed arising under this

Agreement will be binding upon the Parties unless recorded in writing and signed by the Parties.

28. NON WAIVER

28.1 No waiver of any of the provisions of this Agreement will be binding for any purpose unless expressed in

writing and signed by the Party giving the same, and any such waiver will be effective only in the specific

instance and for the purpose given.

28.2 No failure or delay on the part of either Party in exercising any right, power or privilege will operate as a

waiver, nor will any single or partial exercise of any right, power or privilege preclude any other or further

exercise thereof or the exercise of any other right power or privilege by a Party.

28.3 No relaxation or indulgence which a Party may show or grant to the other Party will in any way prejudice

or be deemed to be a waiver of the first mentioned Party’s rights under this Agreement and will not

preclude or estop the first mentioned Party from subsequently exercising any rights enjoyed by it under

this Agreement.


29. DOMICILIA

29.1 The Parties select as their respective domicilia citandi et executandi for the purpose of legal

proceedings and for the purposes of giving or sending any notices, requests, demands, consents, other

documents or communications of whatsoever nature (collectively referred to as “Notices”) provided for

or necessary in terms of this Agreement, the following physical addresses, telefax numbers and e-mail

address:

29.1.1 FAM

Physical address : 121 10th Road Kew

Telefax : 086 720 3999

Email : [email protected]

29.1.2 THE SERVICE PROVIDER

As set out on the Service Provider Particulars Form

29.2 A Party may by notice to the other Party change his chosen physical address to another physical

address within the Republic of South Africa and change his chosen telefax number and e-mail address.

30. NOTICES

30.1 Any Notice required or permitted to be given or made in terms of this Agreement will be valid and

effective only if in writing, but it will be competent to give notice by telefax or e-mail.

30.2 Any notice to a Party:

30.2.1 Delivered by hand during ordinary business hours at its chosen physical address will be

deemed to have been received on the day or delivery; or

30.2.2 Sent to its chosen telefax number or e-mail address on a business day will be deemed to have

been received on the date of transmission thereof and if sent on a day other than a business

day or outside of ordinary business hours on a business day, the same will be deemed to have

been received on the first business day following such date.

30.3 Notwithstanding anything to the contrary contained herein, a written Notice actually received by a Party

will be an adequate written Notice to it notwithstanding that it was not sent to or delivered at its chosen

physical address or chosen telefax number or e-mail address.

30.4 Notwithstanding the provisions of clause 28.2, any Notice sent to a Party during the period 16 December

up to 1 January (both days inclusive) shall be deemed to have been received by the addressee on the

5th (fifth) business day of January.


31. CO-OPERATION

31.1 Each of the Parties undertakes to the other to do all things necessary or required in order to maintain

and uphold the intent of this Agreement.

31.2 The Parties hereby undertake to co-operate fully with and to support each other and to do all things that

may be necessary to give full effect to the provisions of this Agreement.

32. SEVERABILITY

32.1 In the event that any provision of this Agreement is held to be invalid or otherwise unenforceable, such

provision will be deemed to be deleted from this Agreement, while the remaining provisions of this

Agreement will be unaffected and continue in full force and effect.

32.2 The Parties hereby undertake to co-operate fully with and to support each other and to do all things that

may be necessary to give full effect to the provisions of this Agreement.

33. GENERAL

33.1 Should any conflict arise between the provisions of the Annexures and the Agreement, the provisions of

this Annexures shall take precedence.

33.2 This Agreement will be governed by and construed in accordance with the laws of the Republic of South

Africa.

34. REPRESENTATIONS

34.1 Each Party hereto represents to the other hereto as follows:

34.1.1 The Signatory has full power and authority to on behalf of any Party, execute, deliver and

perform its obligations under this Agreement;

34.1.2 This Agreement has been duly and validly authorised, executed and delivered by it and

constitutes a valid and binding obligation;

34.1.3 The execution, delivery and performance of this Agreement does not violate or is not in conflict

with, or constitute a breach of or default under any other material agreement to which it is a

party or by which it is bound or violate any law, regulation, order, writ, judgment, injunction or

decree applicable; and

34.1.4 It is not a party to any agreement, which is inconsistent with the rights of any party hereunder,

or otherwise conflicts with the provisions hereof.


Signing Schedule

_______________________________ _____________________________

Full name : Full name:

Service Provider First Assist Management

Duly Authorised Representative Duly Authorised Representative

Date : Date :

_______________________________ _____________________________

Witness 1. Witness 1.

_______________________________ _____________________________

Witness 2. Witness 2.


ANNEXURE A:

CODE OF CONDUCT

The FAM Service Provider Code of Conduct that provides clear parameters of the principles and standards of

ethical conduct which we require our Service Providers to adhere to at all times.

Full commitment to the principles and standards of the FAM Service Provider Code of Conduct is a condition of

contracting with FAM.

FAM requires that Service Providers implement and maintain this Code with all employees, agents and/or sub-

contractors.

FAM may visit facilities, with or without notice, to assess compliance with this Code.

1. ADMINISTRATION

1.1 The Service Provider is adequately proficient in basic Office Practice and Administration which include:

1.1.1 24-hour landline availability;

1.1.2 access to 24-hour e-mail and internet;

1.1.3 application of accepted accounting practices.

2. DRIVER

2.1 The authorised driver of the Service Provider shall :

2.1.1 ensure that when attending to the incident, the occupants are safe and, if applicable, contact

emergency services to attend to any injuries if necessary;

2.1.2 comply and adhere to any law enforcement official’s instructions and any applicable law;

2.1.3 dress in a clean, presentable and suited uniform displaying the appointed Service Provider

branding or name;

2.1.4 handle the incident in a professional and courteous way.

2.2 The Service Provider shall under no circumstances :

2.2.1 transport an accident Vehicle with a trailer, sling back, dolly wheels or mobi jacks;

2.2.2 allow the passengers of the disabled vehicle to travel to the destination inside the disabled vehicle

being transported. The Service Provider is required to contact the FAM Call Centre to make

appropriate travel arrangements for affected passengers.


2.3 The Service Provider will only use a flatbed truck to render the Services.

3. ACCIDENTS INCIDENT MANAGEMENT

3.1 The FIRST FAM approved Service Provider on the scene of an Accident will be entitled to tow the Vehicle

providing that the Service Provider obtain the necessary authorisation from the FAM contact centre.

3.2 FAM will not condone and any form of violence, disruption, argument or any other kind of behaviour that

may bring the reputation of FAM or its Customer into disrepute.

ISSUE DATE :

SERVICE PROVIDER :

Initials and Surname : , duly Authorised


ANNEXURE B

DISCIPLINARY CODE

The purpose of the Disciplinary Code is to create certainty and consistency in the application of discipline, based

on standards of conduct that is clearly defined.

The Disciplinary Code confirms serious offenses and related disciplinary action(s) which may be imposed should

the Service Provider be found in breach or guilty of offense.

1. Disciplinary Schedule

No Offense 1st 2nd 3rd 4th

1 Traffic Violation: Service Provider is required to act in accordance with the Road Traffic Act.

Verbal

Warning

Written

Warning

Final Written

Warning

Suspension

2 Non adherence to response times: Failure to arrive at the designated destination within the given response

time. After the 4th offence, the Service Provider will be suspended for a month and thereafter, if it happens

again, the Service Provider will be suspended indefinitely.

Exceeding 60 Minutes in Metropolitan Area

Written

Warning

2nd Written

Warning

50% volume

decrease for

2 weeks

Suspension

for 1 Month

Exceeding 90 Minutes in a Rural Area

Written

Warning

2nd Written

Warning

50% volume

decrease for

2 weeks

Suspension

for 1 Month

3 Declining Calls: Service Provider declined in excess of 10% of total Services offered for any one month period.

Verbal

Warning

Written

Warning

Final Written

Warning

Suspension

4 Rude Behaviour: Behaviour towards a client, road user or FAM representative considered to be inappropriate.

Verbal

Warning

Written

Warning

Final Written

Warning

Suspension

5 Damages: Damaging a vehicle whilst loading, towing or off-loading.

Written

Warning

Final Written

Warning

Suspension

6 Overcharging: Not adhering to the prescribed rates as confirmed by FAM from time-to-time

Written

Warning

Final Written

Warning

Suspension

7 Assault or attempted assault: Verbal and physical. Verbal including profanities, racism, any form of prejudicial

remark concerning race, religion, creed, beliefs etc.

Final Written

Warning

Suspension

8 Misconduct: Any behaviour seen as unprofessional, or that contravenes the values, policies and procedures of

FAM.


No Offense 1st 2nd 3rd 4th

Final Written

Warning

Suspension

9 Failure to repair damages: Omitting to effect repairs to damaged vehicles whilst loading, towing or off-loading a

vehicle.

Suspension

10 Failure to refund: Omitting to refund clients, autobody repairers, repair centres or FAM for any overcharges on

towing services.

Suspension

11 Breach of contract: Service Provider who conduct any activity, act in, partake in any event that may be deemed

a s breach of the FAM Service Level Agreement.

Suspension

12 Substance Abuse: Service Provider and/or representatives in possession of / or under the influence of any

substance such as alcohol or drugs whilst performing any duty on behalf of FAM.

Suspension

13 Criminal: Service Provider suspected of association or commission of any act constituting a criminal offence.

Suspension

14 Misrepresentation: Falsification of documents, withholding of information which in the opinion of FAM, ought to

have been disclosed, or which could be prejudicial to FAM.

Suspension

15 Gross Negligence: Service Provider who does not carry out their functions in a proper and workmanlike manner

whilst acting on behalf of FAM or conduct themselves in a manner prejudicial to FAM or which might bring

FAM’s name into disrepute.

Suspension

16 Holding of Cars: Any Service Provider or its representative who withholds information concerning the locality of

a vehicle it has towed or does not immediately release such vehicle on instruction of FAM.

Suspension

2. Reversing a suspension

2.1 A suspended Service Provider will be provided with the opportunity to reverse its suspension, should the

transgression be rectified within 48 hours. Any time taken to rectify the confirmed offence cannot result in

any further financial liability for FAM or its Customer.

2.2 Once the decision to reverse the suspension has been made, work will continue to be directed to the

Service Provider and a Final Written Warning will be issued from the reinstatement date, which will be

applicable for a period of 12 (twelve) months from the date of reinstatement.

ISSUE DATE :

SERVICE PROVIDER :



ANNEXURE C

INCIDENT TYPES

1. ACCIDENT TOW

1.1 Accident Tow shall mean the towing of a vehicle, which are disabled as a result of an Accident and/or

attempted theft and/or as a consequence of a fire.

1.2 In the event that the Service Provider is appointed and authorised to provide an Accident Tow, FAM will

pay the Service Provider as per the Rate Schedule set out in Annexure E. The Accident Tow rate

incorporates a 40 km roundtrip (alternatively a 20 km radius).

1.3 The Service Provider will tow the Vehicle to the destination as confirmed and authorised by the FAM call

centre.

1.4 In the event that the Service Provider fail to deliver the Vehicle to the confirmed destination, FAM will not

be liable to pay the Service Provider in respect of the unauthorised Service rendered. The Vehicle will

be removed and taken to the correct destination at the expense of the Service Provider.

1.5 In the event that the confirmed destination (i.e. autobody repairer), is not open or able to receive the

Vehicle, the Service Provider :

1.5.1 will be responsible to contact the FAM call centre to confirm that the destination is not open or

unable to receive the Vehicle; prior to

1.5.2 taking the Vehicle to the Service Provider’ depot for safekeeping, delivering the Vehicle the

following Business Day to the confirmed destination.

1.5.3 will receive a fee in respect of the 2nd Tow, as per the Rate Schedule set out in Annexure E.

1.6 Undirected Tow

1.6.1 An undirected tow is defined whereby the Service Provider responds and removes a Vehicle

involved in an Accident which was not directed through the FAM call centre.

1.6.2 Once the Service Provider has established that the insurer of the Vehicle forms part of any

assistance programme managed by FAM on behalf of its Customer, the Service Provider will

accept the FAM’s call centre reference number and reduce the Accident Tow rate as per the

Rate Schedule as set out in Annexure E. The Service Provider will reverse any additional costs

levied which are not in line with this Agreement.


2. TRADE TOW

2.1 Trade Tow shall mean the towing of a vehicle that is disabled due to mechanical or electrical failure and

expressly excludes any breakdown due to an accident.

2.2 In the event that the Service Provider is appointed and authorised to provide a Trade Tow, FAM will pay

the Service Provider as per the Rate Schedule set out in Annexure E. The Trade Tow rate incorporates

a 40 km roundtrip (alternatively a 20 km radius).

2.3 The Service Provider will tow the Vehicle to the destination as confirmed and authorised by the FAM call

centre.

2.4 In the event that the Service Provider fail to deliver the Vehicle to the confirmed destination, FAM will not

be liable to pay the Service Provider in respect of the unauthorised Service rendered. The Vehicle will

be removed and taken to the correct destination at the expense of the Service Provider.

2.5 In the event that the confirmed destination (i.e. dealership), is not open or able to receive the Vehicle,

the Service Provider :

2.5.1 will be responsible to contact the FAM call centre to confirm that the destination is not open or

unable to receive the Vehicle; prior to

2.5.2 taking the Vehicle to the Service Provider’ depot for safekeeping, delivering the Vehicle the

following Business Day to the confirmed destination.

2.5.3 will receive a fee in respect of the 2nd Tow, as per the Rate Schedule set out in Annexure E.

3. ROADSIDE ASSISTANCE

3.1 Roadside Assistance shall mean the rendering of assistance to vehicles in the form of fuel run, tyre

change, jump starts or key lock-out service.

3.2 In the event that the Service Provider is appointed and authorised to provide Roadside Assistance, FAM

will pay the Service Provider as per the Rate Schedule set out in Annexure E. The Roadside Assistance

rate incorporates a 40 km roundtrip (alternatively a 20 km radius).

4. LOCKSMITHS

4.1 Locksmith assistance is defined as assistance provided in the opening of a Customer Vehicle.

4.2 In the event that the Service Provider is appointed and authorised to provide Locksmith Assistance,

FAM will pay the Service Provider as per the Rate Schedule set out in Annexure E. The Locksmith

Assistance rates incorporate a 50 km roundtrip from the premises of the Locksmith (alternatively a 25

km radius).


4.3 The rate as confirmed in 4.2 includes the cost of the call out and first hour labour. No overtime,

weekend, after-hour or any charges will be paid.

4.4 Any additional costs e.g. cost for repairs or cutting of keys will be the responsibility of the Customer and

the Service Provider is responsible for confirming said cost directly with the Customer prior to

proceeding with the repairs / cutting of keys. The Customer is responsible for settling confirmed cost

directly with the Service Provider.

4.5 Any damages caused to the Vehicle by the Service Provider whilst opening the Vehicle will be repaired

by the Service Provider.

5. CALL OUT

5.1 In the instance whereby a Service Provider is dispatched by FAM to render a Service and FAM cancels

the service:

5.1.1 within 15 minutes of requesting the Service, NO Call Out Fee will be applicable;

5.1.2 after 15 minutes of requesting the Service, FAM will pay the Service Provider as per the Rate

Schedule set out in Annexure E.

6. ADDITIONAL KILOMETRES

6.1 In the event that the Service Provider is required to travel in excess of the confirmed Incident round trip,

FAM will pay the Service Provider as per the Rate Schedule as set out in Annexure E. Extra kilometres

are calculated on the basis of a start and end kilometre reading travelled by the Service Provider.

6.2 In line with FAM’s Customer Service Level Agreements, the Service Provider is required to provide FAM

confirmation of additional kilometres travelled within 48 hours of providing the Service.

7. STORAGE FEES

7.1 Storage requirements in respect of the disabled Vehicle could be as a result of Vehicle transported:

7.1.1 after hours and the repair centre / dealership is closed;

7.1.2 over a weekend / public holiday and the repair centre is closed;

7.1.3 Undirected Vehicle transported by the Service Provider.


7.2 In terms of this Agreement, it would be reasonable to expect that the Service Provider would ensure that

the Vehicle is taken to the directed destination the following business day. In this instance no charges

would be applicable.

7.3 The Service Provider will provide FAM with a maximum of 5 working days storage at no charge.

7.4 In the event that the Service Provider is required to arrange for safe storage in excess of 5 working

days, FAM will pay the Service Provider as per the Rate Schedule set out in Annexure E.

8. TOLL FEES

8.1 In the event of Toll Fees incurred by the Service Provider, FAM will reimburse the Service Provider the

full cost incurred.

8.2 In line with FAM’s Customer Service Level Agreement(s), the Service Provider is required to provide

FAM confirmation of Toll Fees incurred, within 48 hours of providing the Service.

ISSUE DATE :

SERVICE PROVIDER :



ANNEXURE D

COMPANY INFORMATION AND ACCOUNTING ADMINISTRATION

1. DOCUMENTATION

The Supplier is responsible for providing FAM with:

1.1 completed Company Particulars Form

1.2 Corporate documents :

1.2.1 company Registration Documents

1.2.2 company VAT certificate

1.2.3 copies of Owner / Directors ID Documents

1.2.4 original cancelled cheque or an original letter from Bank, confirming bank details

1.2.5 original Company Letterhead confirming the following Company information:

- Registration number

- VAT number

- Bank account details

- Contact details (telephone, fax number and email address)

- Financial manager name and contact details

- Directors / Owners name and contact details

1.3 Completed and updated Register of Recovery Service Vehicles

1.4 Broad Based Black Economic Empowerment (B-BBEE)

1.4.1 Current B-BBEE Certificate

1.4.2 The Service Provider is required to submit renewed B-BBEE Certificates yearly

1.5 Public Liability Insurance

1.5.1 Current Professional Indemnity Insurance Certificate

1.5.2 The Service Provider is required to submit renewed Insurance Certificates yearly

1.6 Association Membership

1.6.1 Confirmation of current Towing Association Membership

1.6.2 The Service Provider is required to confirm any cancellation or changes in membership.


2. INVOICING

2.1 FAM Invoice processing and payment cycle

The FAM Accounts department, process all invoices of the preceding month, which is reconciled to the

Service Provider statement.

For example : Invoices in respect of Services rendered in August will be processed during August and

paid on the 30th September, provided:

All invoices in respect of August Services were received prior to 7th September

The reconciled statement as at 31st August was received on or before 7th September (previous

payment allocated, agreed credit notes issued etc.).

2.2 Tax Invoice and Credit Note

2.2.1 The Service Provider will provide FAM with a printed Tax Invoice in respect of each authorised

Service provided, whereby;

2.2.1.1 the invoice complies with regulatory requirements, and confirm VAT Number, Company

Details and Registration Number;

2.2.1.2 the invoice provide all necessary information pertaining to the authorised Service

rendered, including the agreed rate as confirmed in the Rate Schedule as set out in

Annexure E;

2.2.1.3 the invoice is submitted within 7 days of date of Services.

2.2.1.4 any additional charges is confirmed to FAM within 48 hours of providing such Service.

Failing this, will result in the Service being closed as a case with no additional charges.

Additional charges are defined as:

2.2.1.4.1 Additional kilometres travelled in the form of START and END kilometres

must be provided;

2.2.1.4.2 Tollgate Fees;

2.2.1.4.3 Other charges authorised by the FAM call centre at the time of the incident.

2.2.2 If a Service complaint or query has been received from a Customer, payment of the invoice shall

be placed on hold until successful resolution of the complaint or query.

2.3 Account Statement

2.3.1 The Service Provider will provide FAM with a monthly reconciled statement, which will confirm the

balance brought forward, reflecting:


2.3.1.1 last payment(s) received from FAM;

2.3.1.2 credit notes as previously agreed upon and confirmed;

2.3.1.3 invoices in respect of Services provided for the preceding month.

2.3.2 The reconciled statement has to be submitted to the FAM Accounts department by no later than

the 7th of every month. Failure to do so will result in FAM not being able to reconcile and settle

invoices by month-end.

2.3.3 In the event where the Service Provide has failed to submit his reconciled statement as noted in

2.3.2, FAM are not able to commit on a payment date and will process statements on a first-come-

first service basis.

2.4 Query Resolution

2.4.1 Any queries that is highlighted in the account reconciliation, has to be resolved with the

appropriate FAM creditors clerk between the 25th and 7th of the month.

2.4.2 Please note that FAM is not able to provide assistance with query resolution outside of the

prescribed timeframe noted above.

2.4.3 It is the responsibility of the Service Provider to ensure that queries are addressed and

finalised timeously by providing the necessary supporting documentation / information etc.

Should the Service Provider and the FAM creditor’s clerk not be able to reach an

agreement, the invoice query is to be escalated to the FAM Service Provider

Representative for resolution in terms of this Agreement.

2.4.4 In the instance whereby FAM is unable to resolve a query due to a lack of Service Provider

co-operation, FAM will reserve the right to pay the Service Provider what FAM deem

reasonable in terms of this Agreement and refute any further obligation in terms of

additional charges not agreed upon.

2.5 Communication

The Service Provider is required to forward relevant documentation / information or updates thereof to the

following emails / fax numbers:

2.5.1 Administration purposes i.e.

Company Particulars Form

Corporate documents

Vehicle register

B-BBEE certificate

Professional Indemnity Insurance

E-mail address : [email protected]

mailto:[email protected]


2.5.2 Additional Charges ONLY (KM’s, Toll Fee’s, Recovery Fee’s, etc.)

Email address – please select applicable province:

Email Fax number [email protected] 0866797095 [email protected] 0866441609 [email protected] 0866494974 [email protected] 0866494974 [email protected] 0866756234 [email protected] 0866796834 [email protected] 0866888934 [email protected] 0866820527 [email protected] 0865019183

2.5.3 Statements & Invoices (ONLY)

Email address – please select applicable province:

Email Fax number [email protected] 0867776172 [email protected] 0867776171 [email protected] 0867776170 [email protected] 0867776168 [email protected] 0867776167 [email protected] 0867776166 [email protected] 0867776164 [email protected] 0867776163 [email protected] 0867776162

ISSUE DATE :

SERVICE PROVIDER :





















ANNEXURE E

RATE SCHEDULE

Effective Date : 1 September 2013

All rates excluding 14% VAT

INCIDENT TYPE DETAILS RATE

TRADE TOW 40 Km roundtrip / 20 km radius R 435.00

STORAGE No charge for the first 5 working days R105.00 per day

2ND TOW As authorised and confirmed with FAM Call Centre R 360.00

2nd ACCIDENT TOW R435.00

ACCIDENT TOW 40 Km roundtrip / 20 km radius R 1 210.00

ROADSIDE

ASSISTANCE

Tyre change

Jump start

Fuel run

R 205.00

CALL OUT FEE Cancelled after 15 minutes of dispatch R 200.00

ADDITIONAL KM’S After 40 km roundtrip / 20 km radius R 5.70 / KM

RECOVERY Require pictures, including time start & time end R 285.00 per hour

LOCKSMITH

Unlocking of cars R 550.00

Additional km’s after 50km’s R 3.50 / KM

TOLL GATE FEES As authorised and confirmed with FAM Call Centre Full cost

LIGHT COMMERCIAL

Light Commercial R550.00

Additional km’s after 40km’s R8.50 / KM

ISSUE DATE :

SERVICE PROVIDER :
