1. Appointment of Vendor
Salungano Group Limited, including its subsidiaries (“Salungano” or “Group”) appoints the vendor (together referred to as “the parties”) on a non-exclusive basis, to supply it with the goods and/or services.
2. Purchase Order
Each purchase order for the goods/services (“purchase order”) is placed as a call-off against any anticipated volume or value of goods/services which Salungano has indicated to the vendor that it may require over a period. The vendor shall not be entitled to execute any order for the supply of goods or services unless it is in possession of a valid purchase order for such goods or services issued by Salungano.
3. Vendor’s Obligations and Warranties
3.1. The vendor must, at its cost and risk:
3.1.1. timeously supply the goods/services contained in the purchase order;
3.1.2. ensure that the goods/services strictly comply with the requirements set out in the purchase order;
3.1.3. immediately upon receipt of a notice from Salungano and at Salungano’s option, repair or replace any goods, or re-execute any services specified by Salungano which are found to be defective within a period of 12 months from the date upon which they are delivered to Salungano and any warranties or guarantees in respect of any repaired or replaced goods or re-executed services must be extended for a further period of 12 months from the date of completion of such repair, replacement or re-execution;
3.1.4. ensure that all guarantees and warranties given to the vendor by parties who supply inputs to the vendor in respect of the goods/services are transferred to Salungano;
3.1.5. comply with, and ensure that the vendor’s employees, agents, sub-contractors, and their employees (“the vendor’s personnel”) comply with all lawful instructions whether written or oral, given by Salungano;
3.1.6. ensure that, at all times, the vendor and the vendor’s personnel comply with Salungano’s written policies, as amended from time to time, on health, safety, security and environmental issues.
3.2. The vendor is liable to Salungano for any costs, damages or losses incurred or suffered by Salungano as a result of any defects in the goods or services supplied and/or breach of these terms and conditions.
Procurement Procedure – Standard Terms and Conditions of Purchase
Issue Date: September 2019
3.3. The vendor warrants that it is an independent contractor. The vendor indemnifies Salungano against any tax, interest, and penalties and any legal or other costs which Salungano may incur because, despite this warranty, Salungano is obliged, but has failed to deduct employee’s tax from any amounts paid to the vendor.
3.4. The vendor waives any lien or right of retention it may have over the goods, or any equipment, tools or other articles owned or supplied by Salungano.
Salungano shall only be obliged to effect payment of the price set out in the purchase order for the supply of goods/services (“the price”) if the vendor has complied with all the terms and conditions of this agreement.
5. Conditions of Payment
5.1. The vendor must provide Salungano with an original tax invoice with the delivery of the ordered goods/services.
5.2. The tax invoice must include Salungano’s correct purchase order number. Salungano may withhold payment if the correct purchase order number does not reflect on the tax invoice.
5.3. The vendor must provide Salungano with a detailed account statement at month-end.
5.4 Payment terms will be strict 30 days after date of statement.
5.5. If at any time in Salungano’s opinion, the vendor does not fulfil any of its obligations (“disputed obligation”), Salungano may withhold payment of that part of the price which relates to the disputed obligation until the situation has been remedied. The vendor must provide Salungano with a new invoice for the undisputed part of the price which Salungano must pay. If, after the situation has been remedied, Salungano is required to pay the disputed payment, the vendor must provide Salungano with an invoice for such disputed payment which Salungano must pay.
5.6. Salungano is entitled to set-off any amounts, claims or losses which it has suffered from any monies which is either due or owing to the vendor by Salungano.
The vendor must take out any insurance for whatever amounts that may be required by Salungano including but not limited to general liability insurance, third party insurance, professional indemnity insurance, and goods in transit insurance, defective workmanship insurance, and all risk property insurance.
7. Ownership and Risk
7.1. If goods are being supplied, the risk in and to the goods will pass to Salungano on written acceptance thereof by Salungano and ownership in the goods will pass to Salungano on delivery.
7.2. If services are being supplied, ownership and risk in the services will pass to Salungano on written acknowledgment by Salungano that the services have been rendered in full and to Salungano’s satisfaction.
8. Limitation of Liability
Neither party nor its officers, employees, agents or assigns will be liable to the other party under this agreement for indirect, special or consequential damages including but not limited to loss of profits, loss of time, loss of revenue, loss of goodwill or any business interruption of any kind suffered by that party and arising out of or in connection with this agreement, except if such damages are suffered as a result of any wilful and unlawful or negligent act or omission of that party and/or result in personal injury or death.
9. Non-Solicitation of Employees
Neither party may, without the prior written consent of the other party, for the duration that the vendor is supplying the goods/services and for a period of 3 years thereafter, directly, or indirectly solicit for employment, employ or engage the services of any person who is in the employ of either party during the course of this agreement.
10. Intellectual Property Rights
All intellectual property rights of whatsoever nature, including but not limited to patents, designs, copyright, trademarks, trade-secrets, and know-how vesting in Salungano anywhere in the world (“the Intellectual Property”) will remain vested in Salungano and nothing in this agreement can be construed as transferring, assigning or making-over the ownership in the intellectual Property or any part thereof to the vendor. The vendor shall not at any time during or after the termination of this agreement dispute the validity or enforceability of the Intellectual Property or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of such Intellectual Property. The vendor acknowledges and agrees that any new intellectual property rights of whatsoever nature, including but not limited to modifications, enhancements, improvements, or adaptations to the Intellectual Property, created pursuant to or arising out of the supply of goods and services to Salungano by the vendor shall be owned by Salungano and, to the extent necessary, the vendor hereby assigns all such rights to Salungano.
11. Force Majeure
11.1. If either party should, despite all reasonable efforts, be prevented or hindered directly or indirectly by circumstances beyond its control (hereinafter referred to as “force majeure”) from performing all or any of its obligations in terms of the purchase order, the party so affected (the “affected party”) will be relieved of performance of its obligations hereunder during the period that such circumstances and the consequences thereof continue, but only to the extent so prevented or hindered, and will not be liable for any delay or failure in the performance of any of its obligations hereunder or loss or damage whether general, special, or consequential which the other party (the “unaffected party”) may suffer due to or resulting from such delay or failure, provided always that notice must be given by the affected party to the unaffected party at the earliest possible opportunity by fax, telephone or email of the occurrence of the event constituting force majeure, together with details thereof and an estimate of the period of time for which it will endure.
11.2. The term ”force majeure” includes strike, labour dispute, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, regulation or directive having the force of law, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbance, compliance with any order or instruction of any port, transportation, local or other authority, non-availability, rationing, reduction or shortage of electricity, coal, fuel or raw material, failure of a party’s vendor to supply, total or partial closure of Salungano’s plant, breakdown or reasonable malfunction of plant or, without any limitation, any other cause beyond the control of the affected party, whether similar or dissimilar to the causes listed above.
11.3. The affected party must use all reasonable endeavours to terminate the circumstances giving rise to the force majeure, and upon termination of the event giving rise thereto, must immediately give notice thereof by fax, telephone, or email to the unaffected party.
11.4. If performance is suspended in accordance with this clause for a period of 30 consecutive days or more, either party may immediately by notice in writing to the other party terminate this agreement.
12.1. Salungano may for any reason whatsoever immediately terminate the purchase order without notice and without giving reason, therefore.
12.2. In the event of such immediate termination, the vendor must immediately return any property belonging to Salungano and leave Salungano premises.
12.3. In the event of such termination, Salungano may terminate any other open purchase orders or commitments which may be in existence between the vendor and Salungano.
13. Notice and Addresses for Service
13.1. Unless otherwise specified any notice or communication in terms of this agreement must be in writing to be effective and must be sent by hand, email, or fax to the business or commercial manager of Salungano.
13.2. Any written notice or communication, which has been received by a party, will be regarded as sufficient notice even if it has not been sent to 142 Western Service Rd, Woodmead, Sandton, 2191.
14. Miscellaneous Legal Provisions
14.1. This is the whole agreement between the parties regarding the subject matter hereof and no representations or warranties, other than those recorded herein, are binding on the parties. The terms of the vendor’s tender, delivery note, order acceptance forms and/or invoices or any other documentation are not applicable to these terms and conditions and are of no force and effect. These terms and conditions will take precedence over any terms and conditions contained in a Salungano purchase order.
14.2. No agreement varying, adding to, deleting from, or cancelling this agreement and no waiver of any right under this agreement is effective unless it is in writing and signed by or on behalf of the parties.
14.3. This agreement will be construed and interpreted in accordance with the law of the Republic of South Africa and the parties’ consent to the jurisdiction of the High Court of South Africa.
14.4. No relaxation by a party of any of its rights in terms of this agreement at any time will prejudice or be a waiver of that party’s rights (unless it is a signed written waiver), and it is entitled to exercise such rights thereafter as if such relaxation had not taken place.
14.5. If any of the terms of this agreement are found to be invalid, unlawful, or unenforceable, such terms will be severable from the remaining provisions, which will remain in full force and effect. If any invalid term is capable of amendment to render it valid, the parties agree to negotiate in good faith and amend the term to remove the invalidity.
15. Entire Agreement
15.1 Unless superseded by a specific signed agreement between the parties, this agreement shall include the Purchase Order, these Standard Terms and Conditions, and all attachments, and it shall constitute the entire agreement of the parties regarding the subject matter contained herein.
15.2 All other prior or contemporaneous representations, warranties, covenants, or agreements between the parties, or their representatives, with respect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of the completed Purchase Order form, including any special provisions contained therein.
15.3 This agreement may not be modified except by mutual written agreement of the parties.
16. Confidentiality and Restraint
16.1. Each party acknowledges that all material and information which has or will come into the possession or knowledge of the other in connection with this agreement or the performance of the obligations hereunder, consists of confidential and proprietary information, which, if disclosed to third parties, might be damaging to the proprietor thereof.
16.2. Both parties therefore agree to hold such material and information in the strictest confidence, not to make use thereof, other than in the performance of the obligations under this agreement, to release it only to employees requiring such information and not to release or disclose it to any other party.
16.3. Neither party will use the name of the other party in publicity, releases, or advertising, or for other promotional purposes, without securing the prior written approval of the other party.