Standard Terms and Conditions applicable to Purchaser Orders
Standard Terms and Conditions applicable to Purchaser Orders
1 Definitions and Interpretation
1.1 "Agreement" means collectively this Purchase Order and the standard terms and conditions of the Customer identified in the Purchase Order, the latter being the terms and conditions for the supply and delivery of the Goods and/or the rendering of the Services set out hereinafter;
1.2 "Customer" means Econet Media Limited, a subsidiary of Econet Media Limited, and/or an affiliate of Econet Media Limited, as specified in the Purchase Order;
1.3 "Goods" means the goods to be supplied and delivered by the Supplier to the Customer, as set out in the Purchase Order and/or any annexure thereto;
1.4 "Purchase Order" means the purchase order of the Customer, which makes reference to the Standard Terms and Conditions;
1.5 "Services" means the services to be rendered by the Supplier to the Customer as described in the Purchase Order and/or any annexure hereto;
1.6 “Standard Terms and Conditions” means the terms and conditions as set out hereinafter, which are identified in the Purchaser Order; and
1.7 "Supplier" means the natural person or legal entity described in the Purchase Order.
1.8 Clause headings in these Standard Terms and Conditions have been inserted for convenience only and shall not be taken into account in interpreting the Agreement.
1.9 When any numbers of days are prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day.
1.10 The contra proferentem rule will not be applied in the interpretation of this Agreement.
2.1 The supply and delivery of the Goods, and/or the rendering of the Services by the Supplier to the Customer in terms of this Purchase Order, will be governed by and be subject to this Agreement.
2.2 If there is a conflict between the Purchase Order and the Standard Terms and Conditions, then the Standard Terms and Conditions will prevail.
2.3 Any terms and conditions incorporated in, or affixed to, the Supplier’s quotation or proposal will be of no force and effect, unless the Customer has agreed to them, or to any part thereof, expressly and in writing.
2.4 In the event that the Supplier and the Customer conclude a customised written agreement signed by their duly authorised representatives relating to the supply and delivery of the Goods and/or rendering of the Services in addition to this Agreement, then any conflict between such customised agreement and this Agreement will be resolved in accordance with the order of precedence prescribed in the customised agreement.
3 Delivery, Installation and Address:
3.1 The Supplier will deliver the Goods to, and/or render the Services at, the delivery address specified on the Purchase Order. If a date of delivery of the Goods and/or rendering of the Services is specified on the Purchase Order, the Goods will be delivered and/or the Services will be rendered by that date. Should no date be specified on the Purchase Order, the Goods will be delivered and/or the Services rendered within a reasonable time. It is recorded and agreed that time is of the essence in respect of the delivery of the Goods and/or rendering of the Services.
3.2 The Supplier will not be entitled to give, and the Customer will not be obliged to take, partial or late delivery of the Goods and/or rendering of the Services.
3.3 In the event that the Supplier supplies and installs Goods which include or constitute equipment, the Supplier will also test and commission the equipment and certify successful testing and commissioning. The date of such certification will be deemed the "delivery date" contemplated in these Standard Terms and Conditions.
3.4 The Supplier hereby chooses its address as set out in the Purchase Order as its/his/her domicilium citandi et executandi for all purposes under this Agreement.
3.5 The Customer hereby chooses Anslow Office Park, 8 Anslow Crescent, Bryanston, Johannesburg, Republic of South Africa, as its domicilium citandi et executandi for all purposes under this Agreement.
4 Price, Invoice and Payments:
4.1 The Supplier will issue to the Customer a valid tax invoice quoting the order number specified on the Purchase Order. The Supplier will only be entitled to issue a tax invoice to the Customer on or after due and proper delivery of the Goods and/or rendering of the Services.
4.2 The purchase price indicated on the Purchase Order includes value added tax, government sales tax and any other applicable taxes payable by the Customer in terms of prevailing legislation with regard to the Purchase Order, and at the prevailing rate.
4.3 Variations between currency exchange rates ruling at the time of acceptance of the Purchase Order and the time of delivery of the Goods and/or rendering of the Services will be at the Supplier's own risk. The Customer will pay the fixed purchase price as indicated on the Purchase Order and will not be liable for any other costs whatsoever and howsoever arising.
4.4 Payment will, subject to the further provisions hereof, be due by the Customer to the Supplier within 45 (forty five) days of receipt by the Customer of the Supplier's valid tax invoice.
5.1 The Goods and/or Services will comply with the specifications as indicated on the Purchase Order and/or any annexure thereto.
5.2 All specifications and/or instructions supplied by the Customer to the Supplier or by the Supplier to the Customer will remain the property of the Customer.
5.3 The Supplier will only use or copy such specifications and/or instructions to the extent necessary to enable the Supplier to fulfil the Purchase Order. 5.4 The Supplier undertakes to keep all specifications and/or instructions confidential and will not allow any third party to have access thereto without the Customer's prior written consent.
6 Warranties and Insurance:
6.1 The Supplier warrants that the Goods supplied and/or the Services rendered will be:
6.1.1 strictly in accordance with what is specified in the Purchase Order;
6.1.2 fit and suitable for the purpose intended;
6.1.3 in good working condition on the date of delivery to the Customer (applicable to Goods only); and
6.1.4 free from defects in material and workmanship for a period of twelve months after delivery and/or rendering thereof ("Warranty Period").
6.2 The Supplier furthermore warrants that it has the necessary expertise, experience, resources and infrastructure to render the Services in a professional manner and in accordance with best industry practice and/or applicable national and/or international standard.
6.3 These warranties are in addition to any other express, implied and/or statutory warranties applicable to the Goods and/or Services, and if any such warranty includes a warranty period which is longer than the period referred to in clause 6.1.4 above, the definition "Warranty Period" in clause 6.1.4 above shall include such longer period.
6.4 The Supplier will obtain and maintain for the duration of this Agreement, and at its own cost, appropriate insurance cover with appropriate loss limits for this Agreement, including any insurance as may be required by law.
6.5 The Supplier will provide the Customer with proof of such insurance cover as set out in clause 6.4 above upon request by the Customer.
7 Rejection of Goods and/or Services and Remedying of Defects:
7.1 If the Goods supplied and/or the Services rendered, or any part thereof, do not comply with this Agreement, the Customer will be entitled (but not obliged) to reject the Goods and/or the Services at any time within a period of 3 (three) months after delivery and/or rendering thereof, and to claim any damages suffered by the Customer from the Supplier.
7.2 The Supplier will, subject to the provisions of clause 9.2 below, remove rejected Goods from the place of delivery of such Goods within 36 (thirty) hours after the Customer has informed the Supplier in writing that the Goods have been rejected.
7.3 All costs incurred by the Supplier resulting from the rejection of the Goods and/or Services by the Customer in terms of clause 7.1 above will be for the Supplier's account.
7.4 Failure to reject the Goods and/or Services within the period referred to in clause 7.1 above will be deemed to be acceptance by the Customer of the Goods and/or Services.
7.5 Any payment by the Customer under this Agreement will not be construed as acceptance by the Customer of any Goods delivered and/or Services rendered to the Customer.
7.6 Acceptance of the Goods and/or Services will not relieve the Supplier of its warranty obligations or liability for latent defects,
7.7 The Supplier will upon request by the Customer and at the Supplier’s cost, promptly remedy any defects in the Goods and/or Services which may arise during the Warranty Period.
7.8 Should it become necessary to replace or renew defective parts of the Goods, such parts will likewise be subject to the Warranty Period as set forth in clause 6.1.4 above from the date of replacement or renewal of the defective parts.
8.1 The Supplier will not cede any of its rights or delegate any of its obligations under this Agreement without the Customer's prior written consent.
8.2 Subject to clause 8.1 above, if the Supplier is unable to supply the Goods and/or render the Services and subcontracts the execution of the Purchase Order to a third party, the Supplier will ensure that the subcontractor complies fully with the Standard Terms and Conditions, provided however that the Supplier will remain fully responsible for the due and proper fulfilment of the Purchase Order under the Standard Terms and Conditions.
8.3 The Customer may at its sole and absolute discretion pay the Supplier or any subcontractor who executed any portion of the Purchase Order and the amount paid to any such subcontractor by the Customer will be deducted from any amount due by the Customer to the Supplier.
8.4 Nothing in this clause 8 will be construed as placing an obligation on the Customer to pay any subcontractor of the Supplier.
9 Discrepancies in Documentation and Right of Inspection:
9.1 Should there be any discrepancy in description, dimension or quantities in the Purchase Order and/or any other specification or document relating to the Purchase Order, the Supplier will promptly refer such discrepancy to the Customer for clarification before proceeding to execute the Purchase Order or the part thereof in respect of which the discrepancy exists.
9.2 All work performed in connection with the Purchase Order is subject to inspection and testing by the Customer's representatives during the course of manufacture or upon completion.
10 Compliance with Laws:
10.1 The Supplier warrants that it will comply with all applicable legislation pertaining to the supply and delivery of the Goods and/or rendering of the Services in terms hereof and that it is familiar with all applicable legislation and codes of conduct having any material bearing on the Goods to be delivered and/or Services to be rendered.
10.2 The Supplier furthermore warrants that it is a member of all professional and other bodies as may be required by all applicable legislation and/or relevant industry pertaining to the Goods and/or Services and that such membership is current and valid.
11 Confidentiality Obligations:
11.1 The Supplier acknowledges that the Customer may suffer irreparable harm should confidential information of the Customer be disclosed.
11.2 The Supplier accordingly agrees to hold all the Customer’s information, in whatever format, howsoever obtained, strictly confidential and not to use nor disclose such information save for the purpose of the proper performance of the Agreement or with the prior written consent of the Customer.
11.3 Where disclosure is made to any employee, contractor or agent of the Supplier, the Supplier will procure that any such employee, contractor or agent complies with the obligations of confidentiality under this clause. The Supplier will be responsible to the Customer in respect of any disclosure or use of such information by a person to whom disclosure is made.
11.4 The obligations of confidentiality under this clause will not apply to information which the Supplier can show:
(a) is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under this clause 11; or
(b) was in its possession prior to the date the Supplier entered into the Agreement; or
(c) was independently disclosed to it by a third party entitled to disclose the same; or
(d) is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
11.5 The obligations of confidentiality under this clause will endure in perpetuity notwithstanding the termination or expiration of the Agreement for whatever reason.
12 Limitation of Liability:
Notwithstanding anything to the contrary contained in this Agreement, neither the Customer nor the Supplier will be liable to the other for any indirect or consequential loss or damages, including, without limitation, loss of profit, revenue, anticipated savings, business transactions, goodwill or other contracts, whether arising from the negligence or breach of this Agreement by the Customer or the Supplier.
The Supplier hereby indemnifies and holds the Customer harmless against all claims, losses and damages arising from the Supplier's negligence or wrongful act or omission.
14 Force Majeure:
14.1 In the event of any act reasonably beyond the control of the Supplier or the Customer or of any circumstances arising beyond the reasonable control of the Supplier or the Customer, such as war, fire, flood, explosion, lightning, storm, earthquake, riots, insurrection or other act of God preventing the Supplier or the Customer from the performance of any obligation hereunder, then the party affected by such force majeure will be relieved of its obligations hereunder during the period that such force majeure continues.
14.2 The Supplier consents that during any period of force majeure, the Customer will be entitled to procure the Goods and/or Services from a third party supplier.
14.3 The Supplier will not be entitled to any payment during the period that the Supplier is unable to supply or deliver any Goods and/or render the Services as result of such force majeure, neither shall the Supplier be entitled to any payment should Customer make use of a third party service provider to supply and deliver the Goods and/or render the Services, as result of such force majeure.
15 Suspension, Cancellation, Breach and Termination:
15.1 The Customer may at any time suspend or cancel part of or the entire Purchase Order by written notice to the Supplier and the Supplier will not, save as provided for herein, have any claim against the Customer arising from such cancellation or suspension. In such an event the Supplier will only be entitled to be paid for the part of the Purchase Order fulfilled prior to the suspension or cancellation thereof.
15.2 Should the Supplier breach any provision of the Agreement, then the Customer will be entitled to require the Supplier to remedy the breach within 5 (five) days of delivery of a written notice requiring it to do so.
15.3 If the Supplier fails to remedy such breach within the period specified in the breach notice, the Customer will be entitled (but not obliged) to forthwith withhold payment to the Supplier or terminate this Agreement and claim damages (if any), alternatively, to claim immediate specific performance of the Supplier’s obligations, whether then due or not. The foregoing is without prejudice to such other rights as the Customer may have in law or this Agreement.
16 Prevention of Corrupt Activities:
The Supplier declares that no bribe, gift, benefit, or other inducement has been or will be paid, given, promised or offered directly or indirectly to any director, employee or agent of the Customer or to a member of the family of such person, with a view to influencing the entry into this Agreement or the administration of this Agreement, and that it has not employed any person to solicit or secure this Agreement upon any agreement for a commission, percentage, brokerage or contingent fee.
17.1 No indulgence or relaxation of any provision of the Standard Terms and Conditions by the Customer will constitute a waiver of right by the Customer.
17.2 The Supplier will pay all legal costs, as between attorney and own client, incurred by the Customer as a result of a breach hereof by the Supplier.
17.3 This Agreement will be governed by the laws of the Republic of South Africa (“RSA”) and the Supplier and the Customer submit to the jurisdiction of the courts in the RSA.
17.4 This Agreement constitutes the sole record of the agreement between the Supplier and the Customer as to the subject matter hereof and neither of them will, subject to clause 6 above, be bound by any undertakings, representations, warranties, promises or the like not recorded therein.
17.5 No variation or addition to the provisions of this Agreement, including this clause, will be binding unless in writing and signed by the Customer and the Supplier.
17.6 It is specifically recorded that whilst the Supplier and the Customer may correspond via e-mail during the currency of the Agreement for operational reasons, no formal notice required in terms of the Agreement nor any amendments to the Agreement will be of any force and/or effect, if communicated via e-mail. For the purposes of this Agreement, a “written” document will exclude any written document that is in a form, either wholly or partly, of a data message as defined in the Electronic Communications and Transactions Act 25 of 2002, as may be amended from time to time, and “sign” will mean a signature executed by hand with a pen and without any electronic process or intervention.
17.7 The provisions of the Standard Terms and Conditions are severable and the invalidity of any one or more of such provisions will in no way affect the validity of the remaining provisions.
STANDARD TERMS AND CONDITIONS APPLICABLE TO GOODS ONLY
18 Ownership and Risk:
18.1 Ownership in the Goods will pass to the Customer upon delivery of or payment for the Goods, whichever occurs earlier, provided that no such passing of ownership will affect or alter any of the Customer's rights to reject the Goods or any part thereof in accordance with the provisions hereof.
18.2 Notwithstanding the provisions of clause 18.1 above, the risk in the Goods will pass to the Customer on delivery thereof in accordance with the provisions hereof, provided however that rejected Goods will be held by the Customer at the risk of the Supplier who, before such Goods are released to the Supplier, will refund the purchase price of such Goods paid by the Customer to the Supplier and all charges incurred by the Customer in respect thereof.
19 Permits, Tests and Packaging:
19.1 If the Goods are being imported from a foreign territory (i.e. from a country other than the country of the Customer as set out in relevant Purchase Order), the Supplier will at its own cost obtain and maintain all necessary import and export permits. The Supplier will provide the Customer with copies of all such permits upon request thereof. The Supplier will furthermore be responsible for all costs relating to import clearance, import duties and taxes, withholding taxes, as well as delivery and insurance of such goods.
19.2 Should the Customer require any tests to be conducted to prove the performance level of the Goods, the Supplier will promptly conduct such tests as may be reasonable to prove the performance level of the Goods.
19.3 All documents, cases, crates, packages and the like will be clearly marked or labelled with the order number specified on the Purchase Order, and all Goods will be appropriately packaged so as to prevent damage to the Goods. All such packaging will become the property of the Customer upon delivery thereof.