Transcription
STANDARD TERMS AND CONDITIONS1. DefinitionsUnless the context otherwise requires, the terms set out belowhave the following meanings:(a) “Agreement” shall mean these standard terms andconditions together with all documents incorporated intothese standard terms and conditions by reference, whichshall govern the supply of Goods and/or Services to theCompany (as detailed in the Purchase Order) by theSupplier under the Purchase Order;(b) “Company” shall mean the company, as indicated in thePurchase Order, who is entering into the Purchase Orderwith the Supplier;(c) “Deliv ery” shall mean the physical delivery of the Goodsand/or Services to the designated delivery point and ifinstallation and/or commissioning is included in thePurchase Order, the completion of such work shallinclude the passing of all tests and inspection required atthe designated delivery point;(d) “Deliv ery Date” shall mean the date specified in thePurchase Order by which Goods and/or Services are tobe supplied at the specified site. If Goods and/orServices are to be installed and/or commissioned by theSupplier, then “Delivery Date” shall mean the datespecified in the Purchase Order by which suchinstallation and/or commissioning, inclusive of any testsor inspections required, shall have been completed to thewritten satisfaction of the Company;(e) “Good/s” shall mean any and/or all the items to beprovided by the Supplier to the Company as detailed inthe Purchase Order;(f) “Principal Contract” shall mean the main agreementconcluded in writing between the Company and theSupplier in respect of the Goods and/or Services;(g) “Purchase Order” shall mean the request or order fromthe Company to the Supplier to supply Goods and/orServices;(h) “Serv ice/s” shall mean any and/or all services to beprovided by the Supplier to the Company as detailed inthe Purchase Order;(i) “Supplier” shall mean the supplier, as indicated in thePurchase Order, who is entering into the Purchase Orderwith the Company.2. TermThis Agreement will be effective as from the date of signature ofthe Purchase Order by the Company and will continue, unlessterminated earlier pursuant to the provisions of this Agreement,until the date determined in the Purchase Order.3.(a)(b)(c)Acceptance; Applicable Terms and ConditionsThe Company shall not be bound by any provisions inSupplier’s Purchase Order acknowledgement or acceptanceforms or its standard terms and conditions or any otherdocuments (including any counter-offers) which propose anyterms or conditions in addition to or differing with the terms ofthis Agreement and/or the Purchase Order. Any such termsand conditions of Supplier and any other modification to thisAgreement and/or Purchase Order shall have no force oreffect and shall not constitute any part of of this Agreementand/or Purchase Order. Under no circumstances whatsoevershall the Company’s failure to object to provisions containedin any of the Supplier’s documents be deemed a waiver of theterms and conditions set forth herein.No amendment, deletion, modification, supplement or changein the terms and conditions contained in this Agreementand/or the Purchase Order shall be binding on the Companyunless approved in writing by the Company.In the absence of a Principal Contract, this Agreement shalltake precedence over all terms and conditions submitted by,or included with any quotations from the Supplier, exceptingthat any terms and conditions appearing on the face of theCompany’s Purchase Order shall take precedence over thisAgreement. Where there is a Principal Contract, the termsand conditions contained therein shall take precedence overthis Agreement.4.(a)(b)(c)(d)5.FeesSubject to the below, fees shall be firm and not subject toadjustment or variation unless specifically approved in writingby the Company.Unless specifically stated in the Purchase Order, fluctuationsin foreign exchange rates which effect the Purchase Ordervalue will not be for the Company’s account.Supplier warrants and represents that the fees specified in thePurchase Order are as low as any net prices now given bySupplier to any other customer for goods and services of likegrade, quality and quantities. Supplier agrees that any feereductions made in the Goods and/or Services covered by thisAgreement subsequent to its acceptance but prior to paymentthereof will be applicable to the Purchase Order.Except as otherwise provided by the Purchase Order, the feesinclude all costs and charges to be incurred by Supplier infulfilling the Purchase Order, including, without limitation,installation and other service charges, all applicable localtaxes and duties, all wages and fees for Goods and/orServices and materials, all charges for transportation,packing, packaging and returnable containers, a ll costs ofdesign, engineering and development and all costs for tooling,gauges, jigs, fixtures, dies, molds, patterns and similarproperty that may be obtained or required by Supplier for usein the provision of the Goods and/or performance of theServices called for by the Purchase Order.Payment(a) Invoices will be paid as indicated in the Purchase Order.(b) No Goods shall be provided nor shall any Servicescommence without a valid Purchase Order from theCompany and under no circumstances whatsoeverwill any payment be made without a valid PurchaseOrder.(c) No payment will be made until all Goods are receivedand/or Services are completed to the written satisfactionof the Company. Payment of any invoice shall not beconstrued to limit the Company’s right of inspection,acceptance, set-off or any other right.(d) If invoices are subject to discount for prepayment,Supplier shall state the applicable terms clearly on suchinvoices. The Company’s opportunity for prepaymentshall not be prejudiced by delays beyond the Company’scontrol.6. TaxesUnless otherwise required by law, Supplier will pay all taxes, excisecharges, fees or other charges, other than applicable sales tax,which may be required or levied by any local, provincial or nationalgovernment body because of the Goods and/or Services providedto the Company and Supplier hereby indemnifies the Company inrespect of any such taxes, charges, penalties or fees in this regard.7. Right of Set OffSupplier agrees that the Company, in its sole discretion, shall havethe right to offset amounts which may become payable by theCompany to Supplier under the Purchase Order or otherwise,against any present or future indebtedness of Supplier to theCompany, money, prepaid inventory or otherwise, whether arisingunder the Purchase Order and/or this Agreement or otherwise.8. SpecificationsUnless otherwise authorized in writing by the Company and whereapplicable, Supplier shall supply the Goods and/or render theServices per all requirements, specifications, designs, drawings
and performance criteria, if any, furnished by the Company orfurnished to the Company by Supplier, without variation.9. Assurance of PerformanceIn the event Supplier fails to perform in terms of this Agreementand/or the Purchase Order, or the Company in good faith has anyother reason to question Supplier’s intent or ability to perform, theCompany may, in its sole discretion, demand adequate assuranceof performance, including that Supplier furnish a performance bondor letter of credit, conditioned to indemnify the Company for anyloss the Company may sustain by failure of Supplier to perform itsobligations. In the event Supplier fails to comply with such demandwithin ten (10) business days thereafter, the Company may treatthis failure as a material default.10. WarrantySupplier represents and warrants that: (i) the Services suppliedhereunder will be performed in a professional and workmanlikemanner and in accordance with good industry practice; (ii) Supplierwill provide all equipment, materials and personnel necessary toprovide the Goods and/or to perform the Services (as applicable);(iii) the Goods and/or Services will be fit for the Company’sparticular purposes, to the extent made known to Supplier, and willbe safe and appropriate for the purpose for which the Goods and/orServices are normally used; (iv) the Goods and/or Servicessupplied in terms of the Purchase Order will conform in everyrespect to the applicable specifications; (v) the Goods and/orServices and Supplier will comply with all Applicable Laws; (vi)Supplier has good and marketable title to the Goods and/orServices supplied under the Purchase Order, which will betransferred to the Company free of liens and encumbrances; and(vii) Supplier will take all appropriate measures to verify that everyemployee and agent of Supplier that will provide the Goods and/orperform the Services is legally eligible to work in the country wheregoods are provided and/or services are rendered, and relevantwork permits or work visas will be made available to the Companyupon request; (viii) all Goods shall be new, be of the best qualityand suitable for the purpose of which they are required (collectively,the “Warranty”). The Warranty will inure to the benefit of theCompany, its customers and any subsequent owners or consumersof the Goods and/or Services detailed in the Purchase Order, orthe end products of which they are a part. No warranty implied inconnection with the sale and/or purchase of the Goods and/orServices may be disclaimed by Supplier. For the purposes of thisAgreement, “Applicable Law s” shall mean all applicable laws,rules, regulations, guidelines and administrative requirementspromulgated by relevant competent authorities and/or othergovernmental or regulatory authority.11. IndemnificationSupplier hereby agrees to, at its own cost and expense, defend,indemnify and hold harmless the Company and its employees,representatives, agents, successors and assigns from and againstany damages, claims, losses, liabilities or expenses of any kind,including, but not limited to, reasonable attorneys’ fees anddisbursements, arising out of any claim resulting from any of thefollowing acts or omissions by Supplier, its agents, Affiliates,employees, officers or directors: (i) any breach or alleged breach ofthis Agreement and/or the Purchase Order; (ii) a breach of theWarranty or undertakings of confidentiality contained herein; (iii)breach of Intellectual Property, (iv) willful act or omission, (v) fraudor fraudulent misrepresentation, (vi) death, injury or damage topersons or property. This indemnification provision shall survivetermination of the Purchase Order.12. Default and TerminationThe breach by Supplier of any representation, warran ty, covenantor other obligation of the Purchase Order and/or this Agreementwill be deemed a breach (a “Breach”).(a) The Purchase Order may be terminated by the Company: (a)upon any Breach that is not cured within ten (10) days afterSupplier’s receipt of written notice of such Breach, or (b)without cause or reason by thirty (30) days’ written notice toSupplier.(b) The Purchase Order may be terminated by either partyimmediately upon written notice if the other passes aresolution or commences business rescue proceedings (or asimilar process under Applicable Laws, commits an act ofinsolvency or reaches a compromise with creditors or in anyway notifies its intention to do so or if anything pertaining to itsbusiness is attached in execution of a creditor judgement or aproceeding is commenced against the other party that is likelyto substantially impair its ability to perform its ob ligationshereunder.(c) Any right to terminate the Purchase Order pursuant to thisclause will be in addition to, and not in lieu of, any rights thatsuch terminating party may have in law.13. Deliv ery or Performance Schedule(a) Time is of the essence with respect to completion and/orfulfillment of the Purchase Order.(b) Supplier shall deliver the Goods to and/or perform theServices at the designated delivery point no later than theDelivery Date, unless the Delivery Date or Delivery address isaltered by the Company and is agreed upon in writing with theSupplier.(c) The Company shall not be obliged to accept any Goodsand/or Services in excess of the quantity specified in thePurchase Order.(d) The Company may terminate the Purchase Order for anynonconformity in any Goods supplied and/or Servicesperformed hereunder, including, without limitation, failure ofSupplier to supply Goods and/or to perform Services whendue or deficient, defective or incomplete performance ofGoods and/or Services.(e) Supplier shall promptly advise the Company of any delay oranticipated delay in delivery or performance and shall pay theCompany for any losses sustained or costs incurred by theCompany as a result of a late delivery or performance.(f) Supplier shall not, without the Company’s p rior writtenconsent, manufacture or procure materials in advance ofSupplier’s normal flow time or supply Goods and/or to performServices in advance of schedule. In the event of terminationof the Purchase Order, no claim by Supplier will be allowedfor any such manufacture or procurement or delivery of Goodsand/or performance of Services in advance of such normalflow time without the prior written consent of the Company.(g) The Supplier shall, at the Supplier’s cost, replace any Goodslost or damaged in transit, howsoever caused.(h) The Supplier shall ensure that the Goods are packaged as perthe instructions in the Purchase Order. In the event that thereare no instructions in the Purchase Order, the Supplier shallmeet the packaging standards as is customary in the industryso as to ensure adequate protection for Goods and eliminatedamage.(i) If applicable, Delivery shall not be deemed completed untilinstruction and assembly manuals, drawings, signed offsamples or prototypes required to be supplied in terms of thePurchase Order have been delivered to and accepted by theCompany in writing.(j) The Supplier warrants and represents that whilst at anyCompany site or premises, the Supplier shall and shall ensurethat its employees, agents, sub-contractors and/orrepresentatives shall comply with the Occupational Healthand Safety Act No. 85 of 1993 and any Company health andsafety policies and security requirements, in force from timeto time.(k) Unless specified otherwise herein, this Agreement shall notbe deemed separable as to the Goods and/or Servicesordered herein.14. Risk and Title(a) Risk and title in and to the Goods and/or Services (asapplicable) shall pass to the Company upon Delivery ofthe Goods and/or Services on the Delivery Date to the
(b)designated Company site stated in the Purchase Orderand acceptance of the Goods and/or Services (asapplicable) by the Company.The Supplier warrants and represents that the Goodsand/or Services as at date of Delivery are free and clearof any lien, claim, demand, security, interest or any otherencumbrance.15. Inspection and TestingAll Goods and/or Services are subject to inspection and rejectionby the Company at any time, including during their preparation,notwithstanding any prior payment or inspection. Goods and/orServices may at any time be rejected for defects or defaultsrevealed by inspection or analysis or use after delivery even thoughsuch Goods and/or Services may have previously been inspectedand accepted. Without limiting any of the rights it may have, theCompany, in its sole discretion, may require Supplier, at Supplier’sexpense, to (i) promptly cure or re-perform any or all rejectedGoods and/or Services; or (ii) refund the price of any or all rejectedGoods and/or Services, or the Company may purchasereplacement Goods and/or Services from another supplier, andSupplier will pay to the Company within ten (10) days thereafter anycosts incurred by the Company in obtaining such replacementGoods and/or Services. Nothing contained herein shall relieve inany way Supplier from the obligation of testing, inspection andquality control.16. Force Maj eure.The obligations of either party to perform under the Purchase Orderand/or this Agreement will be excused during each period o f delaycaused by acts beyond the reasonable control of the party (but, forthe avoidance of doubt, not acts related to Supplier’s supply chain,economic hardship or changes in market conditions) obligated toperform (“Force Maj eure Event”). In the event that either partyceases to perform its obligations due to a Force Majeure Event,such party will immediately notify the other party in writing of suchForce Majeure Event and its expected duration, and will take allreasonable steps to recommence performance of its obligations assoon as possible. In the event a Force Majeure Event lasts forlonger than thirty (30) days, or in the event the party whoseperformance is prevented by the Force Majeure Event expectssuch non-performance to last for more than thirty (30) days, theparty whose performance has not been so prevented will have theoption to terminate the Purchase Order with immediate effect onwritten notice to the other, subject to all rights, remedies andobligations under law and equity.17. Intellectual Property(a) Supplier warrants and represents that the Goods and/orServices supplied, and the subsequent use of the Goodsand/or Services by the Company, do not infringe any patent,copyright or other intellectual property rights of any third party.Upon becoming aware of any claim or suit in which any suchinfringement is alleged, the party that is aware will promptlynotify the other party. Supplier will be permitted to control thedefence or settlement of any such allegation of i nfringement,and the Company will provide Supplier with such reasonableassistance in the response and prosecution of any defence asSupplier may reasonably request, at Supplier’s sole expense.If a Good and/or Service is the subject of any such claim,Supplier will, at its own expense, (i) procure for the Companythe right to continue using such Good and/or Service; (ii)modify the Good and/or Service as necessary to avoid suchclaim, provided that the Good and/or Service (as amended)functions in substantially the same way as the Good and/orService before modification; or (iii) replace all or part of theGood and/or Service with functionally equivalent goods and/orservices without any charge to the Company. If Supplierenters into any settlement or compromise of an allegation ofinfringement that would materially impair the rights or increasethe costs of the Company to use the Good and/or Service ascontemplated hereunder, the Company will have the right toterminate the Purchase Order without any liability or obligationto Supplier. Notwithstanding any other right of the Companyin law or in terms of this Agreement, Supplier shall indemnifythe Company against all liabilities, costs, expenses, damagesand losses (including any professional costs and exp enses)suffered or incurred by the Company arising out of or inconnection with any claim made against the Company foractual or alleged infringement of a third party's intellectualproperty rights arising out of or in connection with the receiptof the benefit of any of the Goods and/or Services.(b) The Company and Supplier will each maintain ownership oftheir own pre-existing intellectual property. All intellectualproperty (including, but not limited to, patents, trade secrets,copyrights, trademarks, and/or know how) developed bySupplier in connection with this Agreement will be ownedsolely by the Company, including, but not limited to, allintellectual property associated with work papers, reports,documentation, drawings, programming, source code, objectcode, flow charts, schematics, screen layouts, prototypes,marketing and development plans and other material,including Supplier’s final report, or services developed, theircomposition, the process for their manufacture and anyapplications for such products, materials or processes.Supplier assigns (by way of present and, where appropriate,future assignment) all such intellectual property rights with fulltitle guarantee to the Company. Supplier shall do and execute,or arrange for the doing and executing of, each act, documentand thing that the Company may consider necessary ordesirable to perfect the right, title and interest of the Companyin and to the intellectual property rights in the inte llectualproperty developed by Supplier in connection with thisAgreement and/or the Purchase Order. Supplier shall: (i)procure the irrevocable waiver of all moral rights in theintellectual property developed by Supplier in connection withthe Purchase Order and/or this Agreement, to the extentpermitted by law; and (ii) be responsible for ensuring thatwritten agreements are entered into with, and adhered to by,employees and subcontractors engaged in the performanceof this Agreement and that, unless otherwise agreed with theCompany in writing in advance, the terms of engagement ofsuch employees and subcontractors are consistent with, andenable Supplier fully to comply with, the provisions as to theintellectual property set out in this Agreement. Supplier will notissue any press release, public notification or otherwise, thatuses, names, depicts or references the Company or any theCompany affiliated brands or trademarks without the priorwritten consent of the Company. Supplier will not use any oftrademarks of the Company or of an Affiliate in any waywithout the prior written consent of the Company.18. Confidentiality(a) Supplier acknowledges that this Agreement and the PurchaseOrder creates a confidential relationship between Supplierand the Company. Each party acknowledges that during theterm of the Purchase Order it shall be entrusted with certainConfidential Information of the other party that shouldreasonably have been understood by the receiving party dueto legends or other markings, the circumstances of disclosureor the nature of the information itself to be proprietary andconfidential to the disclosing party and agrees that it shall usereasonable care to protect the confidentiality thereof, using atleast the same measures it would use to protect is own similarinformation. During the term of the Purchase Order andindefinitely after the termination of the Purchase Order for anyreason whatsoever, the parties shall not (a) use suchConfidential Information for any purpose except theperformance of the Purchase Order and/or this Agreement, or(b) disclose any such Confidential Information to any person(except employees or agents on a need-to-know basis wheresuch persons are advised of these obligations ofconfidentiality), unless such disclosure is authorized by theother party in writing, or (c) disclose any such ConfidentialInformation required by a court of competent jurisdiction orjudicial or governmental order without first informing the other
(b)(c)(d)(e)party in writing and cooperating with such other party if suchother party shall reasonably contest such disclosure.For purposes of this Agreement, “Confidential Information”shall mean all data and information submitted to either partyby the other party including but not limited to data andinformation processed, developed, amended, modified orenhanced by Supplier on the Company’s behalf in connectionwith the Goods and/or Services.The obligations of each party under this clause shall not applyto information that (i) was in possession without confidentialityrestriction prior to disclosure; (ii) was generally known in thetrade or business in which it is practiced by the receiving partyat the time of disclosure, or becomes so generally known aftersuch disclosure, through no act of the receiving party; (iii) hascome into the possession of the receiving party rightfully froma third party without obligation of confidentiality; or (iv) wasdeveloped by the receiving party independently of and withoutreference to Confidential Informati on. Furthermore, theCompany may share this Agreement in its entirety with anyAffiliate or controlling entity without breaching itsconfidentiality obligations. For purposes of this clause and theremainder of the Agreement, “Affiliate” will mean a present orfuture company that, directly or indirectly, controls, or iscontrolled by, or is under common control with theCompany. For purposes of this definition, “control” means (i)the legal or beneficial ownership of fifty percent (50%) or moreof the applicable ownership structure of the entity, or (ii) thepower to exercise a controlling influence over themanagement or policies of a legal entity.The Confidential Information shall remain the property of thedisclosing party.On cancellation or termination of the Purchase Order for anyreason whatsoever, the receiving party shall immediatelyreturn all Confidential Information to the disclosing party, or inaccordance with the disclosing party’s reasonableinstructions, destroy or permanently erase all ConfidentialInformation and confirm in writing to the disclosing party thatit has complied with this clause.19. Personal Information(a) Supplier understands and accepts that the Company may berequired to collect and process personally identifiableinformation about the Supplier and/or the Supplier’semployees, consultants, agents or representatives. Supplierhereby consents and shall procure the consent of itsemployees, consultants, agents or representatives to theprocessing of such personal information by the Company inorder for the Company to carry out and manage its business,to comply with its legal obligations, to comply with theprovisions of this Agreement and to protect its legitimatebusiness interests.(b) Supplier accepts that its personal information and that of itsemployees, consultants, agents or representatives may fromtime to time be shared with vendors who process data onbehalf of the Company and may in appropriate circumstancesreside outside of the Republic of South Africa. Supplier herebyagrees to the transfer of such personal information by theCompany to locations outside of the Republic of South Africa,and shall procure the agreement of its employees,consultants, agents or representatives to the transfer of suchpersonal information by the Company to locations outside ofthe Republic of South Africa, as well as the use of suchpersonal information in such locations as described above.(c) Supplier and/or any of Supplier’s employees, consultants,agents or representatives shall not process, publish, makeaccessible, or use in any other way any personal informationof the Company and/or the Company’s employees,consultants, agents or representatives to which Supplierand/or any of Supplier’s employees, consultants, agents orrepresentatives has access in the course of supplying theGoods and/or performing the Services, for any purpose otherthan the fulfilment of the duties in terms of the Purchase Orderand/or this Agreement. Supplier and/or Supplier’s employees,(d)(e)consultants, agents or representatives shall observe theCompany's regulations regarding the processing andprotection of such personal information and/or data to whichSupplier and/or any of Supplier’s employees, consultants,agents or representatives has access in the course ofsupplying the Goods and/or performing the Services, andshall report any infringement relating to the manner in whichpersonal information or other data is processed to theCompany without delay.Supplier agrees to procure the consent of Supplier’semployees, consultants, agents or representatives to theprovisions of this clause.Supplier hereby indemnifies and holds the Company and/orits Affiliates and any of its/their directors, officers or any otherofficials thereof respectively, harmless against any and allloss, damage, costs (including legal costs on an attorney andclient basis), charges, penalties, fines and/or expenses whichmay be incurred or sustained by the Company and/or any oneor more of the aforesaid persons as a result of Supplier havingfailed to ensure that the appropriate consents contemplatedabove are in place with the Supplier’s employees, consultants,agents or representatives and/or Supplier having failed tocomply with the provisions of the Protection of PersonalInformation Act No.4 of 2013 or any other Applicable Laws inrelation to the processing of personal information.20. Responsibility for Property(a) Any materials, items, software, hardware or equipment(including, but not limited to, for purposes of thi s clause, alltools, dies, mechanicals, negatives, plates, drawings,sketches and artwork) furnished, funded or paid for by theCompany, provided or made available to Supplier inconnection with the Purchase Order, shall be deemed as heldby Supplier upon consignment. All such materials, items,software, hardware and equipment not used in the provisionof Goods and/or the performance of the Services shall, asdirected, be returned to the Company, at the Company’sexpense, and, if not accounted for or so returned, shall be paidfor by Supplier. In no event shall Supplier transfer or movesuch materials, items or equipment to the premises of anythird party without the prior written permission of theCompany. Supplier shall not use such materials, items orequipment for any purposes or for any party not authorized inwriting by the Company. Supplier shall be fully responsibleand indemnify the Company for any loss or destruction of ordamage to such materials, items or equipment until the sameare returned to the possession of the Company, whether ornot such loss, destruction or damage is attributable to acts oromissions of Supplier or its representatives, officers, agentsor employees (normal wear and tear for authorized purposesand parties excepted).(b) Supplier shall obtain and maintain property insurance upon allsuch materials, items or equipment to the full replacementvalue thereof. This insurance shall be specifically soendorsed, and the Company shall be named as a loss payee.21. Insurance(a) Supplier will acquire and maintain, at its own cost andexpense, and cause any subcontractor to acquire andmaintain, during the term of the Purchase Order, with carriershav
STANDARD TERMS AND CONDITIONS that any terms and conditions appearing on the face of the 1. Definitions Unless the context otherwise requires, the terms set out below
