“CO-OP SURE”)OR THE RENDERING OF SERVICES IN RESPECT OF OUTSOURCED FUNCTIONS
1. PARTIES
§ CO-OP PAY FINANCIAL SERVICES (PVT) LTD. (CFS) is a private company duly registered and incorporated in accordance with the Companies Act of Zimbabwe with company registration number ……………………….
§ THE MERCHANT (THE MERCHANT ) and / or its successor in name, is a private company duly registered and incorporated in accordance with the company laws of Zimbabwe with company registration number …………………….
§ CO-OP SURE COOPERATIVE SOCIETY LTD. (CO-OP SURE ) and / or its successor in name, is a cooperative society duly registered and incorporated in accordance with the company laws of Zimbabwe with company registration number ……………………...
2. PREAMBLE
§ THE MERCHANT has contracted CO-OP SURE to sell its products and services to CO-OP SURE’S members and conclude agreements with such members in terms of which the member may use these products and services, in consideration for a ……………….. to ……………… contribution.
§ CO-OP SURE wishes to appoint CFS to perform Outsourced Functions on its behalf for its THE MERCHANT products and services.
§ This Agreement serves to regulate the duties and responsibilities of all Parties, whereby CFS agrees to act on behalf of THE MERCHANT and CO-OP SURE in respect of the Outsourced Functions.
3. DEFINITIONS AND INTERPRETATION
Unless inconsistent with the context:
§ Agreement means this agreement;
§ Business means the business of providing or undertaking to provide VAS product services;
§ Business Day means any day other than a Saturday, Sunday or official public holiday in Zimbabwe;
§ Member means any person who joins [LV1] CO-OP SURE.
§ Confidential Information means all information relating to the business of a Party and confidential to that Party including any information relating to any Member, that is not freely and publicly available and information which is legally protected from disclosure or the disclosure of which private information could reasonably be expected to cause harm to the Party whose information it is;
§ Intellectual Property refers to registered creations of the mind for which exclusive rights are recognised;
§ Outsourced Function means the functions outsourced in terms of Annexure A;
§ Party / Parties means the entities on the title page of this agreement;
§ Product Premium means the product premium in terms of Annexure B;
§ Service Providers means the providers of the Value Added Services;
§ VAS means Value Added Services supplied by various Service Providers.
Any reference in this Agreement to:
§ a Clause is, subject to any other indication, refers to a clause of this Agreement;
§ Law is construed as any law including common law, statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order or any other measure of any government, local government, statutory or regulatory body or court having the force of law; and
§ Legislation is to that legislation at the Signature Date as amended or replaced at any relevant time.
§ a Person refers to any natural or juristic person, firm, company, corporation, government, state agency or organ of a state, association, trust or partnership, whether or not having separate legal personality.
§ a reference to Writing includes a communication in electronic form that is readily reducible to written or printed form in English.
Unless the context indicates otherwise an expression which denotes any gender includes both the other genders; reference to a person includes any person; the singular includes the plural, and the plural includes the singular.
Any prescribed number of days excludes the first day and includes the last day.
Any rule of interpretation that, in the event of ambiguity, the contract may be interpreted against the party responsible for the drafting of the contract does not apply.
4. PERIOD
This Agreement commences upon signature thereof and shall be reviewed on a bi-annual basis and, should all parties be in agreement, renewed or amended and renewed for a further period.
5. OWNERSHIP OF DATA
The Parties agree that any information, data or databases which it may collect or compile in connection with communications with the data subjects of CO-OP SURE shall, at all times be and remain the sole property of CFS.
CO-OP SURE and THE MERCHANT agrees to make available to CFS the above mentioned information, data or databases within 7 (seven) days following CFS’s written request with. Upon the termination of this agreement, all Parties shall keep all records, confidential information and/or data of the other party for a period of 5 (five) years, where after each Party shall return or, at the other Party’s written request, destroy all confidential information and/or data of the other Party.
6. APPOINTMENT AND CFS WARRANTIES
CO-OP SURE appoints CFS to perform Outsourced Functions on behalf of CO-OP SURE for the provision of VAS products to Members. The Outsourced Functions are described in Annexure A.
CFS undertakes to perform the Outsourced Functions and warrants that CFS:
§ Has the required quality of competence and integrity to perform the Outsourced Functions.
§ Has governance, risk management and internal controls required to perform the Outsourced Functions.
§ Will perform the Outsourced Functions with care, skill and diligence and in good faith.
§ Will have the operational capability and will be in a financial position to deliver the Outsourced Functions continuously for the duration of this Agreement.
CFS shall:
§ provide the Outsourced Functions in accordance with the requirements for the provision of the services which CO-OP SURE is required to provide to Members under any Agreement entered into between CO-OP SURE and THE MERCHANT ;
§ comply with the obligations of CO-OP SURE under any Agreement to the extent they are applicable to the Outsourced Functions and the performance of CFS’S obligations under this Agreement;
§ ensure that no act or omission on its part shall constitute, or contribute to, a breach by CO-OP SURE of its obligations towards THE MERCHANT under any Agreement;
and CFS indemnifies and shall keep indemnified CO-OP SURE against any loss or liability incurred by CO-OP SURE as a result of a breach by CFS of its obligations under this clause.
7. SERVICE LEVELS
In performing the Outsourced Functions, CFS must:
§ Comply with the law applicable to the Business and to the Outsourced Functions.
§ CFS must comply with any specific service levels as agreed and communicated between the Parties hereto.
§ Process any payment made either in cash through a payment mechanism or bank transfer.
§ Submit data and payment information to THE MERCHANT in order for THE MERCHANT to supply products or services.
§ Issue policy documentation to members.
§ Member communication, as agreed upon.
§ CFS shall be solely responsible for payment of Service Providers. Should CFS not disburse the relevant funds to any of the Service Providers for any reason what so ever, neither THE MERCHANT nor CO-OP SURE will be held liable to the aforementioned Service Providers.
THE MERCHANT must ensure that:
§ products and services are provided as agreed upon with CO-OP SURE.
§ products or services are supplied upon first payment.
§ distribute products and services to members and conclude customer contracts with such members. CO-OP SURE shall be entitled to collect and receive the payments from Members for the services delivered to the Members in terms of the customer contracts.
§ Issue products and services to signed up members only, as agreed with THE MERCHANT.
§ Where necessary, ensure that, application forms are captured online effectively.
7. GOVERNANCE, MANAGEMENT AND CONTROL
The directors and the management of all Parties will direct, control and manage themselves and their staff in a responsible, professional and transparent manner to safeguard the success and integrity of the Outsourced Functions and the Business and in a manner that complies with the service levels set out in clause 6.
The Parties must have appropriate governance, risk management and internal controls in place to perform the Outsourced Functions.
8. PROTECTION OF PERSONAL INFORMATION
“Personal Information” (PI) shall mean the race, gender, sex, pregnancy, marital status, national or ethnic origin, colour, sexual orientation, age, physical or mental health, disability, religion, conscience, belief, culture, language and birth of a person; information relating to the education or the medical, financial, criminal or employment history of the person; any identifying number, symbol, email address, physical address, telephone number, location information, online identifier or other particular assignment to the person; the biometric information of the person; the personal opinions, views or preferences of the person; correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence; the views or opinions of another individual about the person whether the information is recorded electronically or otherwise.
The parties acknowledge that for the purposes of this agreement that the parties may come into contact with, or have access to PI and other information that may be classified, or deemed as private or confidential and for which the other party is responsible. Such PI may also be deemed or considered as private and confidential as it relates to any third party who may be directly or indirectly associated with this agreement. Further, it is acknowledged and agreed by the parties that they have the necessary consent to share or disclose the PI and that the information may have value.
The parties agree that they will at all times only collect, use and process PI it comes into contact with pursuant to this agreement in a lawful manner, and only to the extent required to execute the services, or to provide the goods and to perform their respective obligations in terms of this agreement.
The parties agree that it shall put in place, and at all times maintain, appropriate physical, technological and contractual security measures to ensure the protection and confidentiality of PI that it, or its employees, its contractors or other authorised individuals comes into contact with pursuant to this agreement.
Unless so required by law, the parties agree that it shall not disclose any PI to any third party without the prior written consent of the other party, and notwithstanding anything to the contrary contained herein, shall any party in no manner whatsoever transfer any PI out of Zimbabwe.
9. DELEGATION OF FUNCTIONS
CFS may not delegate, assign or subcontract any of the Outsourced Functions unless:
§ Agreed upon in advance that CFS may do so.
The functions or activities outsourced to any third party are sub-outsourced in terms of an agreement that, to the extent relevant, contains the same or similar provisions to this Agreement.
10. REMUNERATION TO CFS
The Parties record that CO-OP SURE shall be liable to pay remuneration to CFS in terms of this Agreement for performance of the Outsourced Functions, which remuneration is based on the following principles:
§ It is reasonable and commensurate with the Outsourced Functions.
§ It is not earned in a manner that increases the risk of unfair treatment to Members.
CFS may, if so required, provide written monthly financial reports regarding the Outsourced Functions being performed by CFS.
THE MERCHANT and CO-OP SURE are entitled at any reasonable time and intervals to request CFS to provide a report regarding the Outsourced Functions or any aspect of the Outsourced Functions in writing or at a meeting and the report must be provided within five Business Days or sooner if urgency requires it.
CFS will maintain records and books of account relating to the Outsourced Services.
The Parties, and or their external auditors or other appropriate external professional advisers may at any reasonable time on at least five business days’ notice audit a Parties compliance with this Agreement.
All Parties must at least twice a year at a face-to-face meeting between them review the services performed in order to find ways of improving the performance of the Outsourced Functions and agreeing on any amended terms of this Agreement required to produce that outcome. The review will include an assessment of the services provider’s compliance with this Agreement including governance, risk management, internal controls, fit and properness to perform the services, ability to comply with applicable laws and operational and financial capability.
CFS will report immediately to THE MERCHANT and CO-OP SURE any express or implied complaint by a Member, regulatory authority or any other person in respect of the performance of the Outsourced Functions or the business carried on by the CFS.
12. IT SYSTEMS
CFS will provide, maintain and upgrade as necessary any information technology systems or other management systems required to perform the Outsourced Functions including the IT hardware, software and data necessary to ensure the efficient transfer of data between the Parties to enable the Parties to monitor, audit and control the Outsourced Functions.
Any information on any IT system must be backed-up regularly and the backed-up information must be kept at a separate venue from the primary information in a safe place.
CFS must, to the extent appropriate, have a disaster recovery procedure in place in relation to the Outsourced Functions to enable it to continue to provide the services without any major avoidable interruption if a disruption of any system occurs.
13. PROTECTION OF CONFIDENTIAL INFORMATION
Confidential Information must be kept confidential by the Parties and may only be disclosed to the extent necessary to perform this Agreement and only to any third party who needs to know the information.
No Party is prohibited from disclosing any information that it is required to disclose to any government, regulatory or other authority or person in terms of any law.
If any applicable data protection law comes into force in the Republic of Zimbabwe, which extends greater protection to the Confidential Information than the protection afforded by this clause 13, that law will prevail over these data exchange provisions.
The Parties shall treat all information regarding the Parties members as confidential, and shall not divulge such information to third parties without the other Parties prior written consent, or unless authorised to do so in terms of applicable legislation.
The Parties shall comply with the legislative provisions in operation from time to time relating to the confidentiality, privacy and security of information.
No Party will be in default for failing to disclose information, should such an obligation exist or arise, if the then prevailing law prevents it. Similarly, neither of the Parties will be in default for disclosing information if the then prevailing law requires it.
The provisions relating to confidentiality and disclosure of information shall remain in force after this Contract has been terminated.
14. INTELLECTUAL PROPERTY
All Intellectual Property vesting in a Party prior to the Effective Date shall remain vested in that Party. All modifications, developments, adaptations and changes to the Intellectual Property that vests in a Party shall accrue to that Party.
No Party shall use the other Party's trademarks nor brands for any purpose whatsoever without such Party's prior written consent and then only in the manner prescribed by such Party.
All rights (including all Intellectual Property), title, ownership and interests in and to any systems shall vest in and shall remain vested in the Party who lawfully owns such system as at the Date of Signature.
Each Party may, in its sole discretion, grant licenses to the other Party to use its Intellectual Property for purposes of performing its obligations under this Agreement, subject to such terms and conditions as may be determined in writing.
In the event that one of the Parties license the other to use any of its Intellectual Property, such Party shall only use the Intellectual Property for the sole purpose of performing its obligations under this Agreement and for no other purposes whatsoever.
Upon cancellation or termination of this Agreement, the Parties shall immediately cease to use the Intellectual Property of the other Party and shall immediately return all documents or information associated therewith.
Each party shall inform the other Party, as soon as reasonably possible, of any infringement of the Intellectual Property of the other Party which comes to the attention of such Party, and shall further provide the other Party with all reasonable assistance in order to protect the Intellectual Property of such Party.
The Parties shall be entitled, for the duration of the Agreement and upon 5 Business days' prior written notice to the other Party, to conduct audits from time to time to ascertain whether the other Party is adhering to the terms of use of the Intellectual Property contemplated in this Agreement.
15. ALTERATIONS TO CONTRACT
Any alteration to this contract must be in writing and effected by way of an endorsement or a new contract signed by both parties.
16. RELATIONSHIP WITH MEMBER
CFS may only communicate with CO-OP SURE’s Member to the extent required in order to perform the Outsourced Functions unless CFS does so in terms of a prior agreement with the Member or does so with the written consent of CO-OP SURE.
CFS may not promote its business nor market its services to CO-OP SURE’s Member without the prior written permission of CO-OP SURE unless it does so in terms of a prior agreement with CO-OP SURE .
17. BREACH
Should a Party (Defaulting Party) commit a breach of any of the provisions of this Agreement, then the other Party (Aggrieved Party) will be entitled to give the Defaulting Party 10 days’ written notice or such longer period of time as the Aggrieved Party may specify in the notice, to remedy the breach. If the Defaulting Party fails to comply with such notice, the Aggrieved Party will be entitled to:
§ claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations that are due for performance; and/or cancel this Agreement upon 90 days’ written notice to the Defaulting Party where the breach constitutes a material breach of this Agreement;
§ in either event without prejudice to the Aggrieved Party’s right to Claim damages or to exercise any other rights that the Aggrieved Party may have in terms of this Agreement or in law.
§ Any cancellation is without prejudice to any Claim that either Party may have in respect of any breach of the terms and conditions of this Agreement by the other Party arising prior to the date of cancellation.
18. TERMINATION
Besides the bi-annual renewal period in terms of clause 4 either CFS, THE MERCHANT or CO-OP SURE will be entitled to terminate this Agreement by giving the other 30 days prior written notice of such cancellation[LV2] .
If no business is incepted within five (5) months of the date of signature of this contract the contract will be rendered null and void.
A Party may terminate this Agreement forthwith by means of written notice to the other if at any time the other:
§ Commits an act of insolvency or is placed under provisional or final liquidation ; or
§ is “financially distressed” (as such term is defined in section 128 of the Companies Act 2008); or
§ commences business rescue proceedings or any person applies to court for an order commencing business rescue proceedings in respect of such party; or
§ makes an assignment for the benefit of creditors; or
§ fails to satisfy or take steps to have set aside any judgement taken against it within 7 (seven) days after such judgement has come to its notice; or
§ Has any license to conduct business suspended, removed or impaired by any order or decree of any regulatory or judicial authority.
§ Should either party to the agreement be convicted in a court of any fraudulent and/or improper business activity and/or be requested by the Payments Association of Zimbabwe (PASA), which includes being listed on the Payments Association of Zimbabwe Debit Order Abuse list, and/or any other banking regulator to cease operations, the other party may cancel the agreement with immediate effect.
Furthermore a Party may terminate this Agreement immediately by written notice if at any time either Party’s:
§ shareholders or its directors or managers is alleged to have committed or is convicted of fraud, theft or any other crime involving dishonesty;
§ Directors or managers is or is likely to be the subject of voluntary or involuntary liquidation, curatorship, or sequestration proceedings or being placed under business rescue proceedings.
§ effects or offers a general compromise with creditors of either Party or with any class of creditors, or make any assignment for the benefit of creditors or do anything which would amount to an act of insolvency in terms of any legislation;
§ merge with, acquired or otherwise absorbed by any individual, corporation or other business entity or organisation of any kind, or a portion of its shares [LV3] is sold unless agreed to in writing by either Party in advance.
§ licence to conduct business suspended, removed or endorsed by any order or decree of any applicable authority;
§ fail to maintain the required insurance[LV4] ;
§ fail to comply with any material and applicable law;
§ in which case all amounts owing to one Party by the other will immediately become due and payable and the Aggrieved Party will have all the remedies available on a breach of contract.
§ On termination of this Agreement for any reason, CFS must provide all the information in its possession relating to the Outsourced functions, should CFS be in possession of this information, to enable THE MERCHANT and/or CO-OP SURE to keep records of and to continue to provide such services either itself or using some other Company. At no time will CFS be expected to divulge its Intellectual Property in the process of providing such information.
18. EFFECT OF TERMINATION
Until any termination or cancellation becomes effective, the Parties will remain bound by their respective responsibilities and duties in terms of this Agreement.
On termination of this Agreement the Parties:
§ must deliver all information and documents relating to any dealings with a Party immediately.
§ must immediately refrain from holding out that a Party is connected to the other or the Business.
§ must immediately return all equipment, computer software, records, files, material, documentation and assets relating to the Business if above mentioned rightfully belongs to either Party and was provided to either Party.
§ CFS must account to THE MERCHANT and CO-OP SURE to reconcile the financial position of the Business and will provide any assistance and information to THE MERCHANT and CO-OP SURE required for this purpose.
§ CFS will cease to perform any Outsourced Functions relating to Policies on behalf THE MERCHANT and CO-OP SURE .
19. REGULATORY ACTION
If any government, statutory or regulatory body gives notice of or commences any investigation or other regulatory procedure in relation to the performance of any Outsourced Functions or any other activity performed by CFS, CFS will give THE MERCHANT and CO-OP SURE immediate notice and will cooperate with THE MERCHANT and CO-OP SURE to deal with the investigation or complaint in full cooperation with the authorities.
20. DISPUTE RESOLUTION
Should any dispute or deadlock or conflict arise in connection with or pursuant to this Agreement other than in respect of provisions which contain their own specific remedies, the Parties undertake to attempt to resolve the matter by negotiation.
If the dispute has not been resolved by negotiation within 10 Business Days after the date upon which the one Party had, on notice in writing to the other Party, referred the dispute to negotiation. The Parties will be entitled to agree in writing to extend the period within which to attempt to resolve the dispute. Unresolved disputes will be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa (AFSA) by a single arbitrator appointed by AFSA.
The arbitrator’s decision will be final and binding upon the parties and may be made an order of court.
The provisions of this clause will not preclude a Party from seeking urgent or interim relief, pending the outcome of the arbitration, in any court of competent jurisdiction.
Should any costs be incurred prior to the arbitrator making its decision, which decision will also stipulate which Party will be liable for the costs of the arbitration, the Parties will pay such costs in equal shares, pending the arbitrator’s final decision.
This clause 20 is separate from the remainder of this Agreement and will remain in effect, despite this Agreement being invalid or terminated.
21. GENERAL
This Agreement is the whole agreement between the Parties in regard to Outsourced Functions and incidental matters.
No addition to or variation or consensual cancellation of this Agreement, including this clause, has effect unless in writing and signed by the Parties.
No indulgence by a Party to another Party, or failure to strictly enforce the terms of this Agreement, is to be construed as a waiver or be capable of founding an estoppel.
The Parties undertake to do everything reasonable in their power necessary for or incidental to the effectiveness and performance of this Agreement.
Any illegal or unenforceable provision of this Agreement may be severed and the remaining provisions of this Agreement will continue in force.
22. NOTICES AND ADDRESSES
Notices
Any notice, consent, approval or other communication in connection with this Agreement (Notice) will be in writing in English.
Each Party chooses the physical address, fax number and/or email address corresponding to its name below as the address to which any Notice must be sent.
CFS
PHYSICAL ADDRESS: ……………………………………………………………………
POSTAL ADDRESS: ……………………………………………………………………
TEL: …………………………………
EMAIL: ………………………@…………………………..
THE MERCHANT
PHYSICAL ADDRESS: ……………………………………………………………………
POSTAL ADDRESS: ……………………………………………………………………
TEL: …………………………………
EMAIL: ………………………@…………………………..
CO-OP SURE
PHYSICAL ADDRESS: ……………………………………………………………………
POSTAL ADDRESS: ……………………………………………………………………
TEL: …………………………………
EMAIL: ………………………@…………………………..
Any Party may by Notice to the other Party change its address and/or the person, if any, for whose attention any Notice must be marked in clause 24.
Any Notice takes effect when received by the recipient (or on any later date specified in the Notice) and, unless the contrary is proved, is deemed to be received:
On the day of delivery, if delivered by hand to a responsible person at the recipient’s physical address as above. If delivery is not on a Business Day, or is after ordinary business hours on a Business Day, the Notice is deemed to be received on the Business Day after the date of delivery;
On the first Business Day after the date of transmission, if sent by fax to the recipient’s fax number as above; and
On the first Business Day after the date of transmission, if sent by email to the recipient’s email address as above
Despite anything to the contrary in this Agreement, a Notice actually received by a Party is effective even though it was not sent, or delivered, or sent and delivered in terms of clause 23.
24. SERVICE OF LEGAL PROCESS
Each Party chooses its physical address referred to as above as its address at which legal process and other documents in legal proceedings in connection with this Agreement may be served.
This Agreement is governed by Zimbabwe law.
Signed at _________________________________ on the __________ day of _________________ 2024.
For and on behalf of CFS (Who warrants that he/she is duly authorised by the Board of Directors to sign this agreement)
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Chief Executive Officer |
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Signed at _________________________________ on the __________ day of _________________ 2024.
For and on behalf of THE MERCHANT (Who warrants that he/she is duly authorised by the Board of Directors to sign this agreement)
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Name: |
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Witness |
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Capacity: |
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Signed at _________________________________ on the __________ day of _________________ 2017.
For and on behalf of CO-OP SURE (Who warrants that he/she is duly authorised by the Board of Directors to sign this agreement)
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Name: |
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Witness |
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OUTSOURCED FUNCTIONS
CFS shall on the software system perform the Outsourced Functions in accordance with the following:
1.1 Member management
§ Submit data and payment information to THE MERCHANT in order for THE MERCHANT to supply products or services.
§ Issue policy documentation to member.
§ Member communication, as agreed.
1.2 Disbursement of Payments to the relevant Parties:
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§ ………………………….. payment, as specified by ……………………….
§
Annexure B
PRODUCT AND PRODUCT CONTRIBUTION
1.1 Product
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
§ …………………………………….……. US$...... *subject to change
Total Product Contribution US$.........
* US$........ payable to CO-OP SURE per membership