| By and between: |
Caesarstone Ltd., P.C. 51-143950-7
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| And: |
Sdot Yam Agricultural Cooperative Association Ltd.
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| Whereas, |
On July 20, 2011, the Company and the Kibbutz executed an agreement between them for the provision of services and the allocation of expenses, which was replaced in July 2015 (the “Original Agreement”);
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| Whereas |
On 27 November, 2018, the Original Agreement was revised and replaced by a new agreement (the “2018 Agreement”);
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| Whereas |
In accordance with the resolution of the Company's audit committee, that the engagement in accordance with the provisions of the 2018 Agreement will be for a term of three years, the parties entered into an agreement each time in
accordance with the Companies Law, 1999 (hereinafter, the “Companies Law”);
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| Whereas |
The parties wish to renew and revise the 2018 Agreement and establish various arrangements with respect to the services provided by the Kibbutz to the Company, as well as with respect to various expenses and charges relating to the
Company's use of land and buildings located within the Kibbutz areas;
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| Whereas |
The Parties seek to define, regulate and put in writing their relationship with respect to the provision of the services and the allocation of expenses for a further term of three years from the date of receipt of the approval of this
Agreement by the Company’s general meeting (the “Additional Term”);
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| 1. |
Preamble, Appendices and Definitions
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| 1.1. |
The preamble and appendices to this agreement form an integral part thereof.
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| 1.2. |
The headings in this agreement are provided for convenience only and will not be used for the interpretation of the agreement.
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| 1.3. |
In this agreement:
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| (a) |
“Company Land” - the areas of land and buildings in Kibbutz Sdot Yam that have been made available for the exclusive use of the Company, by virtue of an agreement between the Authority and the
Kibbutz, dated 20.7.2011, and/or any extension and revision thereof;
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| (b) |
The “Services” - the services to be provided to the Company by the Kibbutz in the normal course of the Company's business, as specified in this Agreement.
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| 2. |
Representations and Warranties of the Kibbutz
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| 2.1. |
It has the appropriate knowledge, skill, expertise and qualifications, the technical equipment and the manpower, suitable for the provision of the Services and it will fulfil all its obligations set forth in this agreement, to the best
of its ability and at a high professional level.
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| 2.2. |
Throughout the entire term of this agreement, it will hold all the licenses and permits required by law, to the extent such are required, for the performance of the Services, and will comply with all the requirements and provisions of
the law that are required due to the provision of the Services. In addition, the Kibbutz warrants to present to the Company, at its request, all the permits required in connection with the performance of the Services as stated above, and at
the request of the Company will also provide it with a copy true to original of all such permits.
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| 2.3. |
It is able to fulfil all the obligations it has assumed in this agreement.
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| 2.4. |
There is no impediment whatsoever to its entering into this agreement and/or to fulfilling any obligation it has assumed in this agreement or by requirement of law or any previous agreement or obligation to which it is a party.
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| 2.5. |
It passed all the resolutions that are required by its documents of incorporation or by any law in order to enter into this agreement.
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| 2.6. |
This agreement does not contradict and/or conflict with any agreement and/or other consent to which it is a party and does not constitute a breach of any obligation to which it is bound.
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| 3. |
Representations and Warranties of the Company
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| 3.1. |
It is able to meet all the obligations it has assumed in this agreement.
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| 3.2. |
There is no impediment to its entering into this agreement and/or to fulfilling any obligation it has assumed in this agreement, by requirement of law or any previous agreement or obligation to which it is a party.
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| 3.3. |
It passed all the resolutions that are required by its documents of incorporation or by any law in order to enter into this agreement.
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| 3.4. |
This agreement does not contradict and/or conflict with any agreement and/or other consent to which it is a party and does not constitute a breach of any obligation to which it is bound.
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| 4. |
Various Payments and Expenses
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| 4.1. |
Local Committee
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| 4.2. |
Security
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| 4.3. |
Water
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| 4.4. |
Sewerage fee
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| 4.5. |
Garbage Disposal
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| 4.6. |
Guarding at the Gate of the Company's Factory
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| 4.7. |
Water Infrastructure
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| 4.8. |
Sewerage Infrastructure
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| 4.9. |
Electrical Power
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| 5. |
Services
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| 5.1. |
Landscaping Services
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| 5.2. |
Postal Services
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| 5.3. |
Meals and food
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| 5.4. |
Laundry
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| 5.5. |
Metal workshop
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| a. |
“Stands”
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| b. |
“Fracture Repairs”
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| c. |
Other metalwork for special projects
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| 5.6. |
Events
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| 6. |
General Provisions
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| 6.1. |
The Company may at any time reduce or extend the scope of the Services specified in this agreement in accordance with its needs, or cancel at any time, by prior written notice of at least 25 working days, the receiving of any or all of
the Services it receives from the Kibbutz under this agreement, provided that in a case of the cancellation of any Service, the Company will not receive the same service under this agreement during the relevant year under conditions that
are inferior for the Company in comparison to the last competitive procedure conducted with full transparency with the Kibbutz. In the event that the Company requests that the Kibbutz provide it with additional services or increase the
scope of the Services provided to the Company under this Agreement, the Parties shall consider this together, including determining the appropriate fees for such additional services, and subject to obtaining the approvals required by law,
including the approvals of the competent organs of the Company.
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| 6.2. |
It is clarified and agreed by the parties that the Kibbutz will be entitled to contract with sub-suppliers, subcontractors and any other third parties, in its full and exclusive discretion, after giving 30 days prior written notice to
the Company, for the provision of the Services to the Company under this agreement, provided that the Kibbutz is the party who will at all times bear full responsibility for the provision of the Services, the level of their performance,
their quality and compliance with the terms and conditions of this agreement, and that the Company will in no way be liable for any payment and/or expense, of any kind and type to any of the sub-suppliers that the Kibbutz engaged. The
Company will in no way be liable to any third party for any obligation, whether express or implied, financial or otherwise, and will not be liable to such third party in any manner whatsoever.
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| 7. |
Term of the Agreement
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| 7.1. |
This agreement shall enter into effect upon receipt of approval of the agreement by the Company’s general meeting (the “Effective Date”), subject to receipt
of all approvals from the Company organs as required by law before the said date, including approval of the general meeting of the Company, and will be in effect for a term of three years from the Effective Date (the “Agreement Term”).
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| 7.2. |
Any extension of the Agreement Term is subject to the approval of the competent organs of the Company, in accordance with the provisions of law as such will be in effect from time to time, and will be renewed or terminated in accordance
with the provisions of law that apply to the contract between the parties.
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| 7.3. |
The parties agree that on the Effective Date, the 2018 Agreement will terminate and the provisions of this agreement will prevail over any previous provisions, understandings, representations or warranties between the parties, which are
null and void. The parties represent that they have no claims and/or grievances and/or demands against each other due to anything related and/or involved and/or resulting from the Original Agreement and/or its termination on the Effective
Date (except with respect to the payment of various sums due to the Kibbutz for services actually provided by the Kibbutz to the Company under the Original Agreement, if any have not been paid by the end of the Original Agreement term and
except in relation to the Kibbutz's responsibility for the Services provided under the Original Agreement and to the extent any deficiencies or damage are discovered in connection thereto and/or as a result of the performance of any of the
Services, and also in any matter pursuant to Section 10 of the 2018 Agreement, which shall continue to apply in relation to the Services provided under the 2018 Agreement), and if any of the parties has any claims and/or grievances and/or
demands, it waives them irrevocably upon execution of this agreement.
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| 7.4. |
Notwithstanding the provisions of Section 7.1 above, each party may bring this agreement to termination, by written notice given 45 days in advance to the other party, in any of the following cases:
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| (a) |
a temporary or permanent liquidation order and/or receivership order was given against the other party and it was not removed within one hundred and twenty (120) days from the date given;
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| (b) |
an application has been submitted against the other party for the appointment of a liquidator and/or receiver and/or a trustee and/or a special director, and the application has not been withdrawn within one hundred and twenty (120) days
from the date of its submission;
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| (c) |
an application was submitted by and/or against the other party for a stay of proceedings and/or a creditors' settlement (within the meaning of the term in Section 350 of the Companies Law, 5769 - 1999) and the application was not removed
within one hundred and twenty (120) days from the date of submission;
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| (d) |
A foreclosure was imposed on a significant asset of the other party and the foreclosure was not removed within one hundred and twenty (120) days from the date of its imposition and, as a result, an impediment may arise to the party
against whom the foreclosure was imposed in the performance of any of its obligations under this agreement.
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| 7.5. |
In addition to the above, in the event that the Kibbutz has fundamentally violated its obligations under this agreement in relation to any of the Services listed in Section 5, above, and has not rectified the violation within thirty (30)
days from written demand by the Company, provided that in such written demand the Company explicitly states the if the violation is not remedied within the prescribed time, then the Company will immediately stop consuming the said Service
from the Kibbutz, and the Company will be entitled to notify the Kibbutz in writing that it has indeed decided to stop consuming the said Service from the Kibbutz - and from then this agreement will not apply with respect to such Service.
For the avoidance of doubt, it is hereby clarified that the cessation of the consumption of any specific Service, as stated above, does not detract from the obligations of the parties, in accordance with the provisions of this agreement,
with regard to the provision and performance of other Services that have not been stopped.
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| 8. |
No Employee-Employer Relationship
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| 8.1. |
The Kibbutz will provide the Services to the Company in accordance with the provisions of this agreement as an independent contractor. There is not and will not be any employee-employer relationship between the Company and the Kibbutz
and/or anyone on behalf of the Kibbutz who will take part in the provision of the Services and/or any part of them.
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| 8.2. |
The Kibbutz warrants not to claim at any time regarding the Company that anyone on behalf of the Kibbutz who will take part in the provision of the Services is the Company's employee and that it will not claim any payment from the
Company based on an allegation of an employee-employer relationship between the Company and any such person.
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| 8.3. |
It is further clarified that the Kibbutz and/or anyone on behalf of the Kibbutz who will take part in the provision of the Services will not be entitled to any payment and/or renumeration and/or other benefit that is generally accepted
in an employee-employer relationship, by law, case law, custom, or Company practice, including social provisions required by law, including also severance pay. All payments to anyone on behalf of the Kibbutz who will take part in providing
the Services to the Company (including, and without prejudice to the generality of the aforesaid, wages, social provisions, deductions and payments to income tax and the National Insurance Institute, commuting expenses to and from work and
any other social payment), and all taxes and levies applicable to an employer as such, shall apply to the Kibbutz and/or to any other third party that the Kibbutz will engage as stated in Section 6.2 above, and the Company will not be
liable for this in any way and form.
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| 8.4. |
Without derogating from the aforesaid, the Kibbutz will indemnify the Company, immediately upon its first demand, for any amount that the Company will be required to pay due to any charge imposed on it due to a ruling, decision or final
judgment, the performance of which has not been stayed, of a competent court or tribunal, that notwithstanding the provisions of this agreement, an employer-employee relationship did exist between the Company and the Kibbutz and/or anyone
on behalf of the Kibbutz who took part in providing the Service. The amount of such indemnification will include any compensation, expense, payment, obligatory payment, tax or levy as well as legal expenses and lawyer's fees for any
judicial proceedings to which the Company is a party - provided that the Kibbutz, if it finds interest or need for this, has been given the opportunity to conduct the procedure and defend against it.
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| 9. |
Warranty and Insurance
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| 9.1. |
The Kibbutz shall be liable to the Company and any third party, insofar as such liability is imposed on it by law, for any damage and/or loss and/or financial loss and/or expense (collectively in this Section 9, “Damage”), whether direct or indirect, which will be caused to the body and/or property and/or business of a person and/or corporation, that arises from an act and/or omission of the Kibbutz and/or its
employees and/or anyone on its behalf during or due to the provision of the Services under this agreement, and the Kibbutz warrants to take all necessary measures to prevent such Damage.
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| 9.2. |
The Kibbutz warrants to compensate and/or indemnify the Company, immediately upon its first demand that it does so, for any Damage caused to the Company and/or anyone on its behalf and for which the responsibility rests with the Kibbutz
as stated in Section 9.1 above.
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| 9.3. |
In addition to the above, in any case in which any claim and/or grievance and/or demand of any third party is raised against the Company and/or anyone on its behalf, in respect of any Damage caused to the third party for which the
Kibbutz is responsible under Section 9.1 above, the Kibbutz will bear full liability for any such Damage, provided that in any such a case the Company will contact the Kibbutz, in writing (and at a time that will allow the implementation of
the provision below), with a copy of the claim and/or demand that it received and allow the Kibbutz to conduct a defence, on behalf of the Company, at the expense of the Kibbutz (and if required, through its own lawyers provided that they
are experienced lawyers and suitable for dealing with the matter) against any such demand or claim.
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| 9.4. |
The Kibbutz will purchase and hold itself insurance for the entire term of this agreement to cover risks related to the performance of the Services subject to this agreement, which are reasonable in the circumstances of the case.
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| 10. |
Miscellaneous
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| 10.1. |
It is hereby expressly agreed that the consideration to be paid to the Kibbutz under this agreement for the performance of the Services will constitute all the payment to which the Kibbutz is entitled for the provision of the Services
during the Agreement Term and that the Kibbutz, and/or anyone on its behalf, will not be entitled to any additional consideration and/or benefit in connection with the provision of the Services and/or this agreement, including in connection
with its termination, beyond this pre-determined consideration.
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| 10.2. |
The Company will not be allowed to transfer in any way (and/or pledge and/or hypothecate) any of its obligations and rights under this agreement to any third party.
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| 10.3. |
The provisions of the Contracts Law (Remedies for Breach of Contract), 5731 - 1971, shall govern any breaches of this Agreement.
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| 10.4. |
The terms of this agreement fully reflect all the terms and conditions agreed between the parties regarding the matters settled therein, and the parties will not be bound by any promises, exhibits, representations, documents and/or
agreements, whether written or oral, that were made before the execution of this agreement, if any were made, including under the Original Agreement, which is cancelled.
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| 10.5. |
Any change, waiver, granting of an extension and so forth that are not in accordance with the provisions of this Agreement shall be void, unless made in writing and signed by both parties. Any delay in the use of rights, granting of an
extension, deferment and so forth will not be considered a waiver in any sense unless made in writing and signed by the parties.
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| 10.6. |
The parties stipulate among themselves that the courts in the Tel Aviv district will have exclusive local jurisdiction for all matters arising from this agreement and the governing law with respect to this agreement is the law of Israel.
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| 11. |
Notices and Addresses
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| 11.1. |
The addresses of the parties are as specified in the preamble to this agreement (or any other address provided by either party in writing, to the other party. Any notice sent by any party to another to such address shall be deemed to
have been received by the recipient:
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Caesarstone Ltd.
By __________________
And _________________
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Sdot Yam Agricultural Cooperative Association Ltd.
By __________________
And _________________
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