Standard Conditions of Purchase

ARROW ALTECH DISTRIBUTION PROPRIETARY LIMITED (“AAD”) - STANDARD CONDITIONS OF PURCHASE
(APPLICABLE FROM JANUARY 2012 UNTIL FURTHER WRITTEN NOTICE)

  1. 1.INTERPRETATION “contract” means any contract for the purchase of goods, incorporating these conditions: “goods” and/or “services” means the goods and/or services agreed in the contract to be purchased; “we”, “us” and “our” mean or refer to AAD; “you”, “your” or “supplier” mean or refer to the supplier from whom we purchase the goods or services, “business day” means any day (other than a Saturday, Sunday or public holiday) when banks in South Africa are open for business; “harm” means the death of, or injury to, any natural person, an illness of any natural person, any loss of, or physical damage to any property, irrespective of whether it is movable or immovable, any defect or inefficacy in the product or service, and any economic loss that results from the aforementioned forms of harm. Each provision of these conditions is to be construed as a separate provision applying and surviving even if one or other of them is held void or unenforceable.
  2. 2.ACCEPTANCE AND VARIATION OF CONDITIONS The following conditions shall apply to all our orders for the purchase of goods except to the extent that they are varied by the terms of the order or the signature of AAD’s standard distribution agreement. These conditions also apply mutatis mutandis where the order is for the provision of services. If the terms and conditions stated in the supplier’s acceptance of the order or in any other communication of the supplier relating to the order are inconsistent with the conditions of the order or contain a provision purporting to override these conditions, the supplier shall be deemed to have accepted these conditions if he supplies goods in compliance or purported compliance with the order. No change to these conditions will be valid unless in writing and signed by us. If there is any conflict between these conditions, the order or any other terms provided by the supplier, the parties agree that these conditions shall prevail in relation to such conflict. In entering into the contract you do not rely on any express or implied representation made by us and any representation does not form part of the contract or a collateral contract.
  3. 3.VALIDITY We will accept no responsibility for any order which is not given on one of our standard order forms unless we otherwise give express notice in writing thereof.
  4. 4.VARIATION OF ORDER No variation from the specifications contained in the order will be permitted by us unless such variation shall previously have been approved in writing by our Purchasing Department. In particular, but without limitation, no price increase (arising from whatever cause) will be accepted without such prior approval.
  5. 5.PACKING All goods must be packed so as to reach us in good condition and in compliance with these conditions, all relevant international standards for airfreight, sea freight, and road freight as the case may be. Unless otherwise agreed, packaging will be non-returnable. We reserve the right to reject goods damaged in transit.
  6. 6.DELIVERY All goods shall be delivered to us as per the incoterm stipulated on the purchase order and, in the event of there not being delivered by the delivery date specified in the order (time being of the essence of these conditions and each contract), then (without prejudice to Condition 10 below) such goods shall, at our option, be delivered courier or other express delivery service as nominated by us at the supplier’s cost. We will accept no responsibility for any goods delivered to us without an advice note giving full details and quoting our order number. Labels must also bear our Order Number and the supplier’s name.
  7. 7.SEPARATE DELIVERIES Where the order is for the sale of goods by a number of separate deliveries, we shall be entitled, at our option, to treat a breach by the supplier under Condition 10 in respect of any delivery either as a breach of contract in respect of that delivery only, entitling us to cancel the order in respect of that delivery, or as a breach of contract affecting the whole order, entitling us to cancel the whole order.
  8. 8.PASSING OF OWNERSHIP AND RISK The ownership of and risk in the goods shall pass to us on delivery at the address specified in the order but without prejudice to any right of rejection.
  9. 9.PAYMENT 9.1 Unless otherwise stated in the order, the price quoted by the supplier shall be deemed to be all inclusive, subject to the incoterms stipulated on the purchase order. 9.2 Provided invoices are submitted within three days of the goods having been delivered or the services having been completed to our satisfaction, payment will normally be made within 30 days after receipt of the statement of account from you. 9.3 Payment by us for any of the goods ordered shall not constitute any admission by us as to the performance by you of your obligations and shall not constitute a waiver of any of our rights hereunder, nor shall such payment terminate any of the supplier’s warranties.
  10. 10.SUPPLIER’S DEFAULT It shall be a condition of the contract that the goods will conform to the requirements of the order in all respects (and, in particular, as to quantity, quality, fitness, part number, description and specification, and the sample supplied, if any) and in accordance with any statements or undertakings made by the supplier or its servants or agents prior to the giving of the order.  The supplier undertakes in our favour that any and all of the products provided to us from time to time are free from any defects of whatsoever nature and howsoever arising. If the supplier fails to complete this order strictly according to such requirements, or in accordance with these conditions, or the goods shall prove to be defective within 24 months of delivery, or the goods fail to satisfy the requirements and standards contemplated in clause 19, then, without prejudice to any other rights that we may have, we shall have the following rights, at our election: 10.1 to cancel the order, reject the goods and claim any direct or indirect damages, including consequential, special general damages, in which case the supplier shall, in addition, refund the purchase price (or any portion thereof) to us; or 10.2 to call upon the supplier to rectify the defects or replace the goods (at our sole option) at the supplier’s own expense including all freight and transport costs. All the obligations in this Condition 10 shall further apply to any such rectified or replacement goods.  The supplier shall reimburse us with any additional costs which we may suffer as a result of such failure or defect, and shall indemnify us against any and all actions, proceedings, damages, costs, claims, demands and expenses whatsoever, whether direct, indirect, consequential, special or general damages, resulting therefrom.
  11. 11.FORCE MAJEURE Neither party shall be liable to the other for any delay or failure in performing its obligations under a contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the supplier shall use all reasonable endeavours to bring any such events or circumstances to an end and resume performance under the relevant contract. If any events or circumstances prevent the supplier from carrying out its obligations under a contract for a continuous period of more than 5 days, we may terminate the relevant contract immediately by giving written notice to the supplier.
  12. 12.DESIGN AND TOOLS All blueprints, designs, drawings and instructions supplied by us, and all tools, dies, jigs, moulds, and the like specially manufactured in connection with the order (whether supplied by us or not) for the manufacture of the goods shall be our property and shall be surrendered to us forthwith on demand. The supplier shall not furnish any third party with any goods made in accordance with our blueprints, designs, drawings or instructions without the prior written approval of our Purchasing Department.
  13. 13.INSURANCE The supplier undertakes in favour of us that it has sufficient insurance cover to stand good for any breach of its undertakings, warranties and/or any of its liabilities and/or indemnities which may arise in terms of these conditions and/or in relation to the supply of its goods to us.
  14. 14.INDEMNITY Without prejudice to any other remedy available to us under these conditions or at law, the supplier shall indemnify us against any and all actions, proceedings, damages, costs, claims, demands and/or expenses whatsoever (whether direct or indirect, including direct, indirect, consequential, special or general damages) in respect of: (a) defective products, product failure and/or defective services, or (b) loss of life or personal injury or damage to property resulting, either directly or indirectly, from any defect in the goods supplied or from compliance with any instructions given by the supplier in connection with the goods or from the execution of any work covered by the order, unless such loss of life or personal injuries or damage to property is directly and exclusively attributable to our sub-contractors or to those in our or their employ; or (c) a breach by you of any of your warranties, obligations or liabilities in terms hererof.
  15. 15.CANCELLATION OF ORDER Without prejudice to any other rights that we may have, we shall be entitled to cancel the order at any time (without payment of any penalty to the supplier) by written notice if:
    1. a.the supplier is placed under liquidation or sequestration (whether provisional or final); or
    2. b.the supplier commences business rescue proceedings (as contemplated in Chapter 6 of the Companies Act 2008) are commenced in respect of the supplier; or
    3. c.execution proceedings are levied or enforced upon any of the property of the supplier and payment in respect of the debt due relating to such execution proceedings and all costs associated in such execution proceedings are not paid out or the execution proceedings are not discharged, set aside or withdrawn within 14 days; or
    4. d.a creditor perfects any security held by it in respect of a debt owed to it by the supplier, inter alia, by taking possession of any property of the supplier which secures any such debt; or
    5. e.if the supplier stops payment of any debt due to us or ceases or threatens to cease to carry on its business or pay its debts as and when they fall due.
    6. In any other case we shall be entitled to cancel this order at any time by giving written notice to the supplier in which event we shall be bound to pay a reasonable sum for any work already completed but shall otherwise be free from any liability of whatsoever nature.
  16. 16.INTELLECTUAL PROPERTY The supplier warrants that the goods included in this order do not infringe any patent, registered design copyright, trademark or trade name or any other proprietary right. The supplier shall reimburse us with any costs which we may suffer as a result of any infringement of its intellectual property, and shall indemnify us against any and all actions, proceedings, damages, costs, claims, demands and expenses whatsoever, whether direct or consequential, resulting therefrom.
  17. 17.INSPECTION We shall have a period of 30 days from the date of receipt of the goods (or, if applicable, the date, if later, of completion of installation and/or commissioning by the supplier) within which to inspect the goods. In the meantime, we shall not be deemed to have accepted the goods or be liable to pay for the same.
  18. 18.GOVERNMENT CONTRACTS Where the goods or services ordered are to be used in carrying out, or in connection with, a Government contract or sub-contract, the order is subject to any special conditions stipulated by the Government Department concerned and to these conditions (so far as they are not inconsistent with such special conditions). Details of such conditions will be supplied on request.
  19. 19.SUPPLIER WARRANTIES
    The supplier warrants that:
    1. a.all goods and services supplied pursuant to the order comply with all applicable common law and statutory requirements and in particular (but without prejudice to generality of the foregoing), that:
      1. i.the goods are reasonably suitable for the purposes for which they are generally intended;
      2. ii.the goods are of good quality, in good working order and free of any defects of whatsoever nature;
      3. iii.the goods are free of any intellectual property infringements of whatsoever nature;
      4. iv.the goods will be usable and durable for a reasonable period of time, having regard to the use which they would normally be put and to all the surrounding circumstances of their supply;
      5. v.the goods comply with any applicable standards set under the Standards Act, 8 of 2008 and/or the standards of the South African Bureau of Standards, where applicable; and
      6. vi.the goods will be designed, constructed or installed in such manner and with such tools as to be without risk to health and safety and that we have been provided with adequate information as to their proper use and storage;
    2. b.the packaging and labelling of the goods shall:
      1. i.to the extent applicable, be in accordance with the provisions of the National Environmental Management: Waste Act, 59 of 2008, the Hazardous Substances Act, 15 of 1973, the Standards set in terms of the Standards Act, 8 of 2008 and/or the standards of the South African Bureau of Standards, as well as any regulations published in terms of the aforementioned legislation;
      2. ii.display a notice providing AAD with adequate instructions for the safe handling and use of the goods;
      3. iii.in respect of hazardous or unsafe goods, specifically draw the attention of AAD to the fact, nature and potential effect of:
      4. iv.risk of an unusual character or nature;
      5. v.risk of which AAD could not reasonably be expected to be aware; or
      6. vi.risk that could result in serious injury or death; and
      7. vii.as far as is reasonably practicable, be designed so that such packaging can be reduced, re-used, recycled or recovered in accordance with the National Environmental Management:  Waste Act, 59 of 2008.
      8. Irrespective of whether the harm resulted from the negligence of the supplier, the supplier shall be liable for any harm caused wholly or partly as a consequence of:
      9. a.supplying any unsafe goods;
      10. b.product failure, product defect or hazard in any goods of any nature whatsoever or howsoever arising; or
      11. c.inadequate instructions or warnings pertaining to any hazard arising form or associated with the use of any goods provided by the supplier.
  20. 20.ANTI-CORUPTION AND BRIBERY The supplier agrees that it will not directly or indirectly, pay, offer, promise to pay or authorize the payment of, any monies or financial or other advantage in violation of any anti-corruption laws and in particular (but without prejudice to the generality of the foregoing) the Prevention and Combating of Corrupt Activities Act 2004, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977. Further, the supplier confirms that it has not taken nor will take directly or indirectly, any action that would cause its officers, directors, employees and/or affiliates to be in violation of any anti-corruption laws including but not limited to the Prevention and Combating of Corrupt Activities Act 2004, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977. In circumstances where we determine, in good faith, that the supplier has breached this provision we will be entitled, in addition to our other rights, to terminate any contract with the supplier by giving written notice with immediate effect. The supplier will indemnify us from any claims, suits, investigations, penalties and fines of any kind arising from any breach of this provision. This provision shall survive the termination of any contract.
  21. 21.STIPULATIO ALTERI These conditions constitute a stipulatio alteri in favour of any entity within the Allied Technologies Limited group of companies capable of acceptance at any time.  Save for the aforementioned, no part of these conditions shall constitute a stipulatio alteri in favour of any person who is not a party to these conditions.
  22. 22.PAYMENT NO WAIVER Payments by us for any goods or services ordered shall not constitute a waiver of any of our rights in terms of these conditions, at law or otherwise, nor shall such payment terminate any of the supplier’s obligations.
  23. 23.NOTICES Notices may be sent by first-class post or courier service to the parties’ registered offices and shall be deemed served either 48 hours after posting (South Africa) or 5 days after posting (outside of South Africa).
  24. 24.HEADINGS The headings to the paragraphs of these conditions are inserted only for convenience of reference and shall not affect their interpretation.
  25. 25.LAW AND JURISDICTION The construction, validity and performance of all our contracts shall be governed by the laws of the Republic of South Africa.  The parties acknowledge and agree that all disputes arising out of or in connection with this Agreement, its implementation and/or termination shall be determined and settled under the rules of the Arbitration Foundation of Southern Africa in force from time to time by one or more arbitrators appointed in terms of such rules.  Unless otherwise agreed in writing between the parties, the arbitration proceedings shall be conducted at Sandton, Gauteng. Nothing in these conditions shall, however, prevent a party from applying to any court of competent jurisdiction for interim relief and/or conservatory measures.