MARSH (PTY) LIMITED - TERMS OF ENGAGEMENT

Introduction

Marsh (Pty) Ltd ("Marsh") is an independent insurance intermediary and risk consultant company offering a wide range of insurance and risk management services to clients. These Terms of Engagement form the basis on which Marsh will provide its service of insurance administration to meet its clients' needs, or other services to be provided by Marsh which will be set out in writing.

Marsh aims at all times to treat clients fairly. Marsh will not deliberately put itself in a position where its interests, or its duty to another party, prevents it form discharging its duty to clients. Marsh maintains internal procedures and controls to identify and manage any potential conflicts, so that at all times the interests of all Marsh's clients are reasonably protected.

Financial Advisory and Intermediary Services Act, 2002 ("FAIS")

In terms of FAIS, Marsh is required to provide clients with all necessary business information and is to present a copy of its Financial Services Provider licence on request, confirming the licensed areas of Marsh's expertise.

Making a Claim

Most insurance policies have strict requirements about what the insured should do if they have a claim or if they know about something that may lead to a claim in the future. Clients should familiarise themselves with any such requirements and ensure that they strictly comply with them.

Marsh Security

Marsh only places insurance with insurers that meet its minimum guidelines, unless it receives instructions from clients to the contrary. Marsh does not guarantee the solvency or the continuing solvency of any insurer.

If an insurer ceases to trade, Marsh will use its best endeavours to assist clients but clients should note that in those cases of insurers' insolvency, premiums held by Marsh will be deemed to have been paid to that insolvent insurer and therefore cannot be returned to clients. Similarly, claims monies held by Marsh may be returnable to the insolvent insurers or their liquidators, rather than clients.

Marsh's Service Activity and Responsibilities

The following provisions are applicable in addition to those set out in the Letter of Engagement.

• Marsh will confirm all instructions and advice in writing. Any instruction will form the basis of a record of mutual understanding between both parties. In view of the aforementioned, it must be noted that these records are vital for both parties and it is therefore understood that the client's instruction(s) shall be confirmed in writing.
  
  
• Marsh undertakes to maintain records of its dealings with the client and on the client's behalf as required by law. Archived documents will be returned to the client or destroyed at the client's written request. Marsh will maintain its own records for such period as may be required by law.

The Client's Responsibilities

Duty of disclosure

The client undertakes to;

• provide Marsh within agreed timescales, accurate insurance underwriting and claims information as Marsh may reasonably require;
  
  
• to act with good faith towards insurers and re-insurers at all times;
• advise Marsh of any material circumstances which may, in any way, affect the risk and, in turn, the decision of the underwriter to insure the risk,
  
  
• promptly advise Marsh of any changes in risk as they are known within the client's organisation (ideally prior to coming into effect) to allow Marsh, to notify insurers, accordingly. The obligation of disclosure is not limited to material circumstances of which the client is aware but extends to those circumstances of which the client ought to be aware in the ordinary course of its business;
  
  
• provide such other reasonable co-operation as Marsh may request in order to enable it to discharge its obligations under this Engagement;
  
  
• settle invoices for services provided as referred to in the Letter of Engagement;
  
  
• review all documented insurance cover confirmations and advise Marsh within 30 days following receipt of them, of anything which the Client believes is not in accordance with its instructions or specifications;
  
  

Marsh would remind the Client that;

• it is the Client's responsibility to discharge its duty to disclose all facts which are material to the risks which Marsh is requested to place in the insurance market. If there is any doubt as to whether or not a circumstance is material to the risk, Marsh recommends that the Client informs/advises of it in writing;
  
  
• cover under each insurance policy is conditional upon the Client's compliance with its terms, conditions (including claims reporting), exceptions and where applicable, its warranties;
  
  
• with certain classes of insurance the Client may be required to complete a proposal form or questionnaire. Marsh will provide any advice and assistance that the Client may require, although Marsh cannot complete or sign the form on the Client's behalf;
  
  
• in completing a questionnaire, proposal, claim form or other document relating to an insurance policy, the accuracy of all answers, statements and/or information is the Client's sole responsibility.
  
  

Termination

• if either party commits a material breach of any of the Terms of this Engagement which is not remedied within 14 (fourteen) days of being brought to the attention of the other, except where such breach is due to a cause beyond the control of either party; or
  
  
• if either party goes into liquidation, makes a voluntary arrangement with his or its creditors or has a trustee or administrator appointed by a judicial officer.
  
  
• Upon termination of this Engagement, Marsh shall;
  
  
• continue handling any outstanding claims, work or complete any work in progress provided that Marsh is able to and that an acceptable method of remuneration is agreed between the parties
  
  
• co-operate in ensuring that the Client's insurance broking arrangements can be promptly and effectively continued either by the Client or by a third party nominated by the Client
  
  
• be deemed to have earned its commission proportionate to the duration of the APPETD insurance policy.
  
  

Termination of this Engagement will not affect the accrued rights and obligations of either party in respect of any breach of this Engagement occurring prior to termination or the continuance in force of any provision to the extent expressly or by implication which is intended to continue in force, after termination.

Confidentiality

Marsh shall not disclose to any third party, any confidential information provided to it unless;

• such disclosure is made to the client's insurers or otherwise as required pursuant to the proper performance of obligations outlined in this Engagement; or
  
  
• that information is already in the public domain or comes into the public domain otherwise than by virtue of a breach of this Engagement by Marsh; or
  
  
• such disclosure is required to be made pursuant to any legal or regulatory obligation or any duty of utmost good faith; or
  
  
• the client's consent to such disclosure which consent shall not be unreasonably withheld; or
  
  
• the disclosure is made to any of Marsh's professional advisers for the purposes of seeking advice in relation to this Engagement; or
  
  
• the disclosure is to a permitted sub-contractor or assignee of this Engagement
  
  

All confidential information and reports and other materials which contain confidential information and which are provided to Marsh by the client shall be returned by Marsh to the Client as soon as reasonably practical upon a written request from the client for their return except that Marsh shall be entitled to keep one copy, at its option, for professional indemnity insurance purposes.

Marsh shall use its best endeavours to ensure that the confidential information is only given to employees and directors who may need to see same for the purposes of this Engagement.

Marsh shall use its reasonable endeavours to ensure that any sub-contractors it appoints to carry out any of its obligations contained in this Engagement are bound to the same confidentiality requirements contained herein.

Notwithstanding the above the client;

• permits Marsh's clients to use its name in documents which identify Marsh's clients.
  
  
• is not be precluded from requesting that Marsh in turn request any third party, to whom disclosure of confidential information is proposed to be given, to agree reasonable assurances of confidentiality.
  
  

The provisions of this clause shall apply for a period of five years following termination of this Engagement.

Intellectual Property

Any intellectual property (including in particular copyright) which belongs to the Client shall remain the Client's absolute property. Marsh shall have the right to copy documents provided to it by the Client.

Any intellectual property (including in particular copyright) which belongs to Marsh, which has been created by it or which is created by it during the course of this Engagement shall become or remain Marsh's property.

Marsh grants a non-exclusive licence to use the reports or advice produced pursuant to this Engagement for the Client's own internal business purposes.

The Client undertakes that it will not release such reports or advice to any third party for any purpose without the prior express permission, unless such release is made or is to be made as a result of a legal or regulatory obligation or duty of utmost good faith.

Notices

Notices under this Engagement must be in writing and sent to the party concerned by hand, post, facsimile or email at its last known physical or electronic registered office address.

Governing Law

This Engagement is governed by and shall be construed in accordance with South African law and any disputes as to its terms shall be submitted to the exclusive jurisdiction of the Courts of South Africa.

Commission and Services

Marsh provides administration services for the APPETD Guarantee Facility.

Marsh's remuneration shall be by way of the commissions paid by the Insurer on the placements made on your behalf relative to the premiums paid. Such remuneration will be disclosed to you at each renewal, in exchange for services rendered, and shall be exclusive of VAT.

Vis Major

If either Party is prevented from performing any of its obligations under this Agreement as a direct or indirect result of any cause beyond its reasonable control (including without limitation, acts of God, civil commotion, riots, insurrection, fire, explosions, epidemics, but excluding strikes, industrial action or labour unrest), the Party so affected shall be relieved of its obligations in terms of this Agreement during the period that such event and its consequences continue, but only to the extent so prevented from performing its obligations, provided always that the Party so affected shall give written notice as soon as reasonably possible after the occurrence constituting Vis Major, setting out full details of its failure to perform. Forthwith upon termination of the circumstances giving rise to the Vis Major, the Party that invoked Vis Major shall give written notice of that fact to the other Party.

If the performance of any of the obligations of a Party that invoked Vis Major is precluded by any of the events contemplated in the Vis Major provisions as set out above for a period of more than 30 consecutive days at any one time, the Party not claiming Vis Major shall have the right to terminate this Agreement on immediate written notice to the other Party.

The aforegoing Vis Major provisions shall not excuse or release the performance of obligations due prior to the occurrence of the Vis Major event, or obligations not affected by the Vis Major event.

Indemnity

Marsh confirms that, currently, we have professional indemnity insurance and fidelity guarantee cover. These covers are renewed annually and we will notify you if, at any stage, we are unable to procure such insurances.

In the event that you may suffer any loss or damage arising out of or in any way related to our performance or non-performance of the services to be rendered to you in terms of this agreement, whether arising out of negligence or any other cause, our liability shall be limited to a maximum amount of R1 million. We shall not, under any circumstances, be liable to you for any indirect, consequential or economic loss nor for any punitive damages. You may, in writing, request that the maximum amount of our liability be increased to an amount in excess of the R1 million limitation aforementioned. However, in such circumstances, we will charge you a commensurate premium cost for the increased limit of indemnity.

Entire Engagement

This Engagement sets out the entire understanding of the parties in relation to the matters that it deals with and supersedes and invalidates all previous letters, agreements and understandings (oral or written) in relation to those matters.

This Engagement may only be amended or modified by written agreement duly signed by each party.