$6.$ Core clauses

$6\mathrm{.}1$ Clause $1$: Breach

If the service provider fails to comply with its obligations in terms of and pursuant to the Agreement, and fails to remedy such breach with $21($twenty one$)$ business days after receipt of written notice from the Department, The department may:

$$ Suspend further payments to the service provider for the specific deliverable under dispute

$$ Following further written notice of not less than $120($hundred and twenty$)$ business days, terminate the Agreement, provided that payment is tendered for all outstanding costs incurred and fees due to the Service Provider for performance or services other than the

$$ performance or services which resulted in termination of the Agreement; and

$$ Appoint any other person to complete the execution of the services which event the Service Provider shall be liable for the reasonable

$$ costs incurred in the appointment of such person or persons as well as the reasonable cost associated with delay.

The clause states that in a case where the contract will be breached by the services provider, they will be given $21$ days to explain and remedy their mistakes after a written notice. The breach will also have an impact on the payment schedule as they will be put on hold and not get processed. In the event that no response is received from the service provider the department will investigate and respond not later than $120$ days and thereafter, given the outcome the department will terminate the contract only after all outstanding payments have been paid to the service provider.

The clause meets the requirements of the contract as it is expected that the appointees on the contract should have the relevant qualifications and experience and that would assist in ensuring that the deliverables are met. No incompetency is expected given the nature of the scope of the contract.

Case study

$[22]$ Christie$$s Law of Contract in South Africa $7$ ed$[2]$ at $616$ states:

$$The remedies available for a breach or$,$ in some cases, a threatened breach of contract are five in number. Specific performance, interdict, declaration of rights, cancellation, damages. The first three may be regarded as methods of enforcement and the last two as recompenses for non$-$performance. The choice among these remedies rests primarily with the injured party, the plaintiff, who may choose more than one of them, either in the alternative or together, subject to the overriding principles that the plaintiff must not claim inconsistent remedies and must not be overcompensated.$($Footnote omitted.$)$

Balance of Power

The balance of power is more based on the department side. For example, if the department fails to pay one $(1)$ invoice within thirty $(30)$ days as required that cannot constitute termination of the contract, but should the service provider not be able to deliver according to the service level agreement the department has the power to terminate the contract.

Risk

Failure to submit the closure report could get the contract to overlap into the next financial year and this could have a huge implication on the new budget of the next financial year as a result of accruals. The late submission of reports could also delay the management on implementing consequence management on time.

Conclusion

$6\mathrm{.}2$ Clause $2$: Intellectual Property

The Department shall become the owner of all collected, furnished and$/$or compiled by the Service Provider during the course of and for the purposes of executing the Agreement, provided the Service Provider may retain copies of any data should be required to do so by any applicable law.

All information particular to the parties in respect of the deliverables must be regarded as confidential and may not be made available to any persons other than those identified by the representative signatories of the Department and may not be published either during the currency of the Agreement or rather termination thereof without the prior written consent of the parties. Provided that the aforegoing provision does not apply to information in respect of which the disclosure has been authorised by the parties, which is publicly known or becomes publicly known through the unauthorised act of any of the parties, which is lawfully received by the party from a third party, which is required to bedisclosed pursuant to a requirement of a government agency or any applicable law, and provided that the information is only disclosed to that to whom the disclosure is required to be made.

This clause simply means that any information that will be gathered by the service provider, can never be shared with anyone other than the department that appointed them. The department has total ownership and right over the collected data as outlined in the scope of work for the contract. Basically all related documentation and information related to the investigation can only be used by the department.

This clause meets the requirements b