ASHANTI DESIGN SUPPLIER TERMS AND CONDITIONS
Ashanti Design: Morow Investments 175cc, trading as Ashanti Design (CK 2000/013116/23), a closed corporation having its principal place of business at 77 Kloof Street, Gardens, Cape Town, South Africa.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in South Africa are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Clause 15.4.
Contract: the contract between Ashanti Design and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Date: the date specified in the Order.
Delivery Location: the address for delivery of Goods as set out in the Order.
Goods: the goods (or any part of them) set out in the Order.
Mandatory Policies: Ashanti Design’s business policies as provided to the Supplier, and as amended, from time to time.
Order: Ashanti Design’s order for the Goods, as set out in Ashanti Design’s purchase order form.
Specification: any specification for the Goods, including any related plans and drawings, as stipulated in the Order or otherwise agreed in writing between Ashanti Design and the Supplier.
Supplier: the person from whom Ashanti Design purchases the Goods.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by Ashanti Design to purchase the Goods in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of: (a) the Supplier issuing a written acceptance of the Order; and (b) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. THE GOODS
3.1 The Supplier represents and warrants that the Goods:
(a) the Goods are supplied with full title guarantee;
(b) the Goods are free from all defects in materials and workmanship and from any adulteration, and do not contain any foreign matter, are of satisfactory quality and conform to and in all respects in accordance with the Specification and any standards, procedures and requirements agreed in writing between the parties from time to time;
(c) the Goods do not infringe the Intellectual Property Rights of a third party;
(d) where the Goods are manufactured products, the Goods are free from defects in design, material and workmanship and remain so for a minimum of 6 months after delivery; and
(e) comply with all applicable statutory and regulatory requirements and industry standards relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 Ashanti Design may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier obligations under the Contract.
3.4 If following such inspection or testing Ashanti Design considers that the Goods do not conform or are unlikely to comply with the Supplier undertakings at Clause 3.1, Ashanti Design shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 Ashanti Design may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) if the Supplier requires Ashanti Design to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the Delivery Date;
(b) at the Delivery Location; and
(c) during Ashanti Design’s normal business hours, or as instructed by Ashanti Design.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 If the Supplier:
(a) delivers less than 95% of the quantity of Goods ordered, Ashanti Design may reject the Goods; or
(b) delivers more than 100% of the quantity of Goods ordered, Ashanti Design may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Ashanti Design accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without Ashanti Design’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle Ashanti Design to the remedies set out in Clause 5.
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in Clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, Ashanti Design may exercise any one or more of the following remedies:
(a) to terminate the Contract;
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by Ashanti Design in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by Ashanti Design which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 If the Goods are not delivered on the Delivery Date Ashanti Design may, at its option, claim or deduct 5% of the price of the Goods for each week’s delay in delivery
5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.4 Ashanti Design’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6. TITLE AND RISK
Title and risk in the Goods shall pass to Ashanti Design on completion of delivery.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which Ashanti Design shall, if applicable, be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) includes the costs of packaging, insurance and carriage of the Goods.
7.3 No extra charges shall be effective unless agreed in writing with Ashanti Design.
7.4 The Supplier may invoice Ashanti Design for price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, Ashanti Design’s order number, the Supplier’s VAT registration number and any supporting documents that Ashanti Design may reasonably require.
7.5 Ashanti Design shall pay correctly rendered invoices within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 Ashanti Design may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to Ashanti Design against any liability of Ashanti Design to the Supplier.
8. ASHANTI DESIGN MATERIALS The Supplier acknowledges that all materials, equipment and tools, prototypes, samples, goods, components, drawings, Specifications, and data supplied by Ashanti Design to the Supplier (Ashanti Design Materials) and all rights in Ashanti Design Material are and shall remain the exclusive property of Ashanti Design. The Supplier shall keep Ashanti Design Materials in safe custody at its own risk, maintain them in good condition until returned to Ashanti Design and not dispose or use the same other than in accordance with Ashanti Design’s written instructions or authorisation.
9.1 The Supplier shall keep Ashanti Design indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Ashanti Design as a result of or in connection with:
(a) any claim made against Ashanti Design for actual or alleged infringement of a third party’s intellectual property
rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against Ashanti Design by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against Ashanti Design by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
9.2 This Clause 9 shall survive termination of the Contract.
During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Ashanti Design’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
11.2 This Clause 11 shall survive termination of the Contract.
12. COMPLIANCE WITH RELEVANT LAWS AND POLICIES
12.1 In performing it obligations under the Contract, the Supplier shall:
(a) comply with all applicable laws, statutes, regulations and codes from time to time in force; and
(b) comply with the Mandatory Policies.
12.2 Ashanti Design may immediately terminate the Contract for any breach of Clause 12.
13.1 Ashanti Design may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Ashanti Design shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 Without limiting its other rights or remedies, Ashanti Design may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(b) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; or
(c) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
13.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
13.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
14. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for two weeks, the party not affected may terminate the Contract by giving 5 days written notice to the affected party.
15.1 Assignment and other dealings. The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Ashanti Design.
15.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Ashanti Design. If Ashanti Design consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
15.3 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.4 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Ashanti Design.
15.5 Waiver. Except as set out in Clause 2.4, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 15.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
15.8 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
15.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of South Africa.
15.10 Jurisdiction. Each party irrevocably agrees that the courts of South Africa shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.