English PDF [ 189KB ] - Anglo American

STANDARD TERMS AND CONDITIONSSupply of goods and/or servicesThese conditions govern the supply of goods and/orservices to the „Purchaser‟ (as defined in thePurchase Order) by its suppliers under a PurchaseOrder.1. Precedence of documents: These terms andconditions are applicable to the Purchase Order tothe exclusion of any other terms including anyterms or conditions which the Supplier purports toapply under any quotation, proposal, invoice,confirmation of order, specification or otherdocument, save and except that these terms andconditions shall NOT apply where there is anexisting executed agreement between thePurchaser and the Supplier pertaining to thegoods and/or services as set out in thePurchase Order.2. Interpretation: Unless the context otherwiserequires, the following terms have the meaningsgiven when used in this Contract:‘Anti-Corruption Laws’ means any laws orinternational conventions relating to anti-corruptionincluding:(a) the OECD Convention on Combating Briberyof Foreign Public Officials in InternationalBusiness Transactions 1997;(b) the United Nations Convention againstCorruption 2003;(c) the Foreign Corrupt Practices Act of 1977 ofthe United States of America (as amended bythe Foreign Corrupt Practices ActAmendments of 1988 and 1998) (“FCPA”);(d) the UK Bribery Act 2010;(e) any other applicable law (statute, ordinance,rule or regulation, order of any court, tribunal orany other judicial body or any otheradministrative requirement) which:(i)Prohibits the offering of any gift, payment orother benefit to any person or any officer,employee, agent or advisor of such person;and/or(ii) Is broadly equivalent to the FCPA and/or theUK Bribery Act 2010, or was intended to enactthe provisions of the OECD Convention, orwhich has as its objective the prevention ofcorruption and which are applicable in thejurisdiction in which the Supplier is registered,conducts business and/or which any of theServices are performed.‘Business Integrity Policy’ means the Purchaser‟spolicy named as such and found atwww.angloamerican.com.‘Contract’ means the Purchase Order, thesestandard terms and conditions together with allStandard Purchase Order Terms and Conditions_South Africa_2013-01-03AA-SC-SA-01documents incorporated into these terms andconditions by reference.‘Purchase Order’ means the request or order fromthe Purchaser to the Supplier to supply goodsand/or services.‘Purchaser's Corporate Policies’ means the mostcurrent version of the policies, codes and principlespublished by Anglo American plc, as amended fromtime to time, copies of which are available onrequest from the Purchaser.‘SHE Requirements’ means all relevant law andgovernment requirements relating to workplacehealth and safety and the environment, and themost current version of the Purchaser's policieswith respect to health and safety, the environmentand stakeholder relationships.‘Supplier’ means the corporate body or person towhom or to which the Purchase Order is addressedand includes the Supplier‟s successors in title andpermitted assigns.3. Non-exclusive relationship: The Supplieracknowledges and agrees that the Purchaser mayengage any other party to supply goods and/orservices of a similar nature to the goods and/orservices being supplied by the Supplier in terms ofthe Purchaser Order.4. Quality:(a) Goods and/or services shall be supplied strictlyin accordance with the terms (quantities, units,description, prices and delivery) stated in therelevant Purchase Order.(b) The Supplier warrants that the goods and/orservices will:(i) be of merchantable quality and fit for theirintended purpose;(ii) be free from all defects and imperfectionsaffecting performance;(iii) be of current manufacture, appropriategrade and suitable capacity;(iv) conform in all respects to the specifications;and(v) conform with all relevant requirements ofany statute, law, regulation or legalrequirement which may be in force in thecountry in which the Supplier is situated.(c) The Supplier shall provide a warranty on thegoods and/or services for a period of no lessthan twelve (12) months from the delivery dateunless a greater period has been stipulated bythe Supplier, in which event, the greater periodshall apply.1

5. Risk and Title:(a) Risk and title in and to the goods shall pass tothe Purchaser upon delivery of the goods to thesite (stated in the relevant Purchase Order) andacceptance of the goods by the Purchaser.(b) The Supplier warrants that the goods as at dateof delivery are free and clear of any lien, claim,demand, security, interest or any otherencumbrance.6. Packaging: The Supplier shall ensure that thegoods are packaged as per the instructions in thePurchase Order. In the event that there are noinstructions in the Purchase Order, the Suppliershall meet the packaging standards as is customaryin the industry so as to ensure adequate protectionfor the goods and eliminate damage.7. Delivery:(a) The Purchaser shall not accept any goods inexcess of the quantity specified in the PurchaseOrder. Such goods as may be in excess of thespecified quantity in the Purchase Order shallbe removed by the Supplier from thePurchaser‟s site within seven (7) days, at theSupplier‟s own cost and title and risk in thesegoods shall remain with the Supplier.(b) The Supplier shall, at the Supplier‟s cost,replace any goods lost or damaged in transit,howsoever caused.8. Tests and Inspections: The Purchaser hasthe right to conduct tests and/or inspections of thegoods after delivery and/or after payments havebeen made, as the Purchaser may deemnecessary.9. Hazardous Substances: In the event that thegoods supplied by the Supplier are hazardoussubstances as defined in the HazardousSubstances Act, No 15 of 1973, the Supplierwarrants that the goods are safe and without risk tohealth and safety when used, handled, processed,stored or transported; and the Supplier shall providethe Purchaser with detailed documentedinformation about, inter alia, the use of thesubstance, the potential risk to health and safetyassociated with the substance, any restrictions orcontrol on the use of this substance, the safetyprecautions to ensure that the substance is withoutrisk to health and safety, and the procedure to befollowed in the event of an accident involvingexposure to these substances.10. Invoicing and Payment:(a) All payments are conditional upon receipt bythe Purchaser of the Supplier‟s tax invoice thatcomplies in all instances with the Value AddedTax Act (Act 89 of 1991) (or any amendmentsand/or substitutions thereof) and must reflectthe Purchase Order number.(b) Payment will be made as per the paymentterms set out in the Purchase Order. If noterms appear on the Purchase Order, thePurchaser will pay the Supplier thirty (30) daysafter date of statement.Standard Purchase Order Terms and Conditions_South Africa_2013-01-03(c) The Purchaser shall not be liable for anyinterest for late payments unless expresslyagreed otherwise in writing by the Purchaser.(d) All payments shall be made by means ofelectronic funds transfer only.(e) The Purchaser may refuse payment of any taxinvoice which it may contest.11. Income Tax Act:(a) The Supplier warrants that it understands thecriteria that apply to distinguish independentcontractors from personal service providers asenvisaged in the Income Tax Act.(b) The Supplier indemnifies the Purchaser againstall losses, claims, liabilities, damage or expensewhich the Purchaser may suffer or be exposedto as a result of, or which may be attributable toany liability of the Supplier for tax in respect ofpayments made in terms of the PurchaseOrder. For these purposes “tax” includes SITE,PAYE, VAT and all other forms of duties ortaxation, and any penalties or interest.12. Intellectual Property:(a) The Supplier warrants that neither the supply ofgoods, the use of the goods by the Purchaser,nor any design, materials, documents andmethods of working provided by the Supplier inthe performance of the services will infringe anypatent, design, trade mark or name, copyrightor other protected right, whether registered ornot.(b) In this regard, the Supplier shall indemnify thePurchaser against all liabilities, damages,claims, losses, costs and all other expenses(including legal costs) whatsoever that thePurchaser may incur as a result of any allegedinfringement or infringement of intellectualproperty rights.(c) Title to, copyright in and other intellectualproperty rights in any documents or otherproperty created by the Supplier for or inconnection with the services vests in thePurchaser on creation and the Supplier herebycedes and assigns all such rights to thePurchaser with effect from the date of creationin order to vest such intellectual property in thePurchaser.13. Limitation of Liability:(a) Neither the Purchaser nor the Supplier shall beliable or responsible to each other for anyindirect, consequential or incidental damages,including but not limited to loss of profit or lossof production arising out of a breach of theContract.(b) Clause 13(a) shall not apply to clause 11(b),clause 12(b) and clause 14(a) and (b).14. Indemnity: The Supplier shall be liable for andindemnifies and holds the Purchaser harmlessagainst all claims, damages, losses or costswhatsoever relating to or as a result of:(a) the injury or death of any person,2

(b) a breach by the Supplier of any law in thecourse of, or caused by the performance of itsobligations under the Contract,(c) any damage to property on the Purchaser‟ssite,to the extent that the damage, death, injury orbreach is due to an act and/or omission of theSupplier.15. Insurance: The Supplier shall effect andmaintain all insurances that a prudent person in theSupplier‟s position would consider appropriate inthe circumstances having regard to the Supplier‟sobligations under the Contract.16. Site and Safety:(a) The Supplier shall comply with the SHERequirements when on the Purchaser‟s site.(b) The Supplier shall comply with the Purchaser‟sCorporate Policies.(c) The Supplier undertakes to comply with allapplicable legislation including (but not limitedto) the Occupational Health and Safety Act No85 of 1993, Mine Health and Safety Act No 29of 1996, Compensation for OccupationalInjuries and Diseases Act No 130 of 1993 andHazardous Substances Act No 15 of 1973.17. Confidentiality:(a) The Supplier shall keep the contents of thePurchase Order and any information of orrelating to the Purchaser or its operations oraffairs or the goods and/or services which maybe acquired by the Purchaser confidential, saveand except for information:(i) which is publicly available or becomespublicly available through no act or defaultof the Supplier; or(ii) which came into the possession of theSupplier on a non-confidential basis from asource other than the Purchaser whichsource is not bound by a confidentialityagreement or other obligation of secrecy tothe Purchaser or another person and is nototherwise under an obligation of secrecy tothe Purchaser or another person(“Confidential Information”).(b) The Supplier undertakes not to publish,disclose or reveal any Confidential Informationto any other person or party whatsoever, otherthan as may be required by law, without thePurchaser‟s prior written consent.(c) The Supplier shall not, without the prior writtenapproval of the Purchaser:(i) take any photographs of the Purchaser‟ssite or any part thereof;(ii) publish any article, story or advertisementin connection with the goods and/orservices on the site or elsewhere.18. Default: If(a) the Supplier breaches any of its obligationsunder the Contract,(b) the Supplier is placed under liquidation or issequestrated, either provisionally or finally,whether voluntary or compulsorily,Standard Purchase Order Terms and Conditions_South Africa_2013-01-03(c) the Supplier is placed under business rescue orceases to carry on business or disposes ofsome or all of its assets,(d) the Supplier is unable to pay its debts as theybecome due,then the Purchaser may, without prejudice to anyother rights it may have, terminate the Contract withimmediate effect without payment for compensationto the Supplier for any damages whatsoever.19. Dispute Resolution: Any dispute between theparties arising out of the Contract shall besubmitted to arbitration in accordance with thecommercial arbitration rules of the ArbitrationFoundation of Southern Africa (AFSA). Thearbitration shall be held in Johannesburg.20. Force Majeure:(a) Should either the Purchaser or the Supplier(hereinafter referred to as "the invokingParty") be prevented from fulfilling any of itsobligations in terms of this Contract as a resultof any act of God, war, fire, flood, legislation,insurrection, sanctions, trade embargo, illegalstrikes or any economic or other cause beyondthe reasonable control of such party (any suchevent hereinafter called "force majeure") thenthe invoking party will forthwith give writtennotice thereof to the other party specifying thecause and anticipated duration of the forcemajeure.(b) Performance of any such obligations will besuspended from the date on which notice isgiven of force majeure until the date on whichnotice is given of termination of force majeure(“Suspension Period”).(c) The invoking party will not be liable for anydelay or failure in the performance of anyobligation hereunder, or loss or damage due toor resulting from the force majeure during theSuspension Period.21. Anti Kickback:(a) A director, employee or agent of the Suppliermust not:(i) give or receive any commission, fee,rebate, gift or entertainment of significantvalue from; or(ii) enter into any business agreement with,any director, employee or agent of the Purchaserother than as a representative of the Purchaser orin the ordinary and proper course of businessbetween any of those parties.(b) The Supplier must not undertake any activitythat may constitute a breach of any provision ofthe Anti-Corruption Laws. The Supplier shallfurthermore, in the performance of itsobligations under the Contract, comply at alltimes and act in a manner consistent with theBusiness Integrity Policy.22. Notices: Notices must be in writing, in Englishand addressed to the receiving party at thephysical address specified in the PurchaseOrder and will be deemed to have beenreceived:3

(a) if posted, on the 10 th day after posting;(b) if delivered personally, upon delivery;(c) if sent by facsimile or email:(i) on a business day, on dispatch of thetransmission; or(ii) on a day other than a business day, on thenext business day.Contract shall survive any termination or expirationof the Contract and continue in full force and effect.23. Right to audit: The Supplier must permit thePurchaser or its designated internal / external auditrepresentatives reasonable access to the Supplier‟spremises for the purpose of conducting audits of theSupplier‟s records and/or processes to the extentnecessary to verify the Supplier‟s compliance withthe Purchase Order and these terms andconditions.24. Assignment: The Supplier may not, withoutthe prior written consent of the Purchaser, assign orotherwise deal with any right, title, interest orobligation under the Contract.25. Subcontract: The Supplier shall notsubcontract the whole or portions of the PurchaseOrder without the prior written consent of thePurchaser. The Supplier shall be responsible forthe acts or defaults of any subcontractor, his agentsor employees, as if they were the acts or defaults ofthe Supplier.26. Governing Law: The Agreement is governedby and must be construed and enforced inaccordance with the laws of the Republic of SouthAfrica.27. Entire Agreement: Subject to clause 1, theContract contains the entire agreement between theparties as to the subject matter hereof andsupersedes any previous arrangements orunderstandings (if any) relating to the subjectmatter hereof.28. Severability: If any provision contained in theContract is void, illegal or unenforceable, thatprovision is severable from the Contract and theremainder of the Contract has full force and effect.29. Non-waiver: No failure by a party to enforceany provision of this Contract will constitute awaiver of such provision or affect in any way aparty's right to require the performance of suchprovision at any time in the future.30. Amendment: The Contract may be alteredonly in writing signed by both parties.31. No other relationship: Nothing contained inthe Contract is to be construed as constituting ajoint venture, agency or partnership between theSupplier and the Purchaser. It is specificallyrecorded that the Supplier is an employer in its ownright.32. Survival: Any provision of the Contract whichcontemplates performance or observancesubsequent to any termination or expiration of theStandard Purchase Order Terms and Conditions_South Africa_2013-01-034