Definitions & Interpretation
In these conditions, the following words shall, where the context so admits, have the following meanings:
"Associates" shall mean any person, firm, trust, corporation or other entity or combination thereof which directly or indirectly (a) controls the Buyer, (b) is controlled by the Buyer, or (c) is under common control with the Buyer. The terms "control" and "controlled" shall mean ownership of fifty percent (50%) or more, including ownership by trusts with substantially the same beneficial interests, of the voting and equity rights of such person, firm, trust, corporation or other entity or combination thereof or the power to direct the management of such person, firm, trust, corporation or other entity or combination thereof.
Buyer — Mundipharma (Pty) Ltd
Contract — These General Conditions of Purchase together with the Purchase Order and all documents and terms expressly or impliedly incorporated here between the Buyer and the Seller for the purchase of Goods and/or Services.
Force Majeure Event — any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the party so prevented, including act of God, war or national emergency and act of terrorism, riot, civil commotion, fire, explosion, flood, storm and/or epidemic.
General Conditions of Purchase — these conditions of purchase and all documents and terms expressly or impliedly incorporated here
Goods — the goods (including any of them or any part(s) of them) supplied by the Seller to the Buyer under the Contract.
Price — the price set out in the Purchase Order.
Purchase Order — the purchase order of the Buyer for the supply of Goods and/or Services incorporating these General Conditions of Purchase.
Seller — the company, firm or person from whom the Buyer orders the Goods and/or Services.
Services — the services which the Seller agrees to supply to the Buyer (including any of them or any part of them) under the Contract.
pecification — means the Buyers specifications or stipulations for the Goods and/or Services notified in writing to the Seller.
Responsible Party — has the meaning set out in section 1 of the Protection of Personal Information Act 4 of 2013.
Data Subject — the person to whom Personal Information relates.
Personal Information — has the meaning set out in section 1 of the Protection of Personal Information Act 4 of 2013 and relates only to Personal Information, or any part of such Personal Information, in connection with the Contract.
Operator — has the meaning set out in section 1 of the Protection of Personal Information Act 4 of 2013.
Processing — has the meaning set out in section 1 of the Protection of Personal Information Act 4 of 2013.
In these General Conditions of Purchase, references to the singular include the plural, references to one gender shall include the others and references to any statute or statutory provision shall, unless the context requires otherwise, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.1 Subject to any variation under Condition 24 or a mutually agreed written contract signed by an authorised representative of both parties every Purchase Order issued by the Buyer shall incorporate these General Conditions of Purchase to the exclusion of all other terms and conditions, including any terms or conditions which the Seller purports to apply under any acknowledgement or confirmation of order, quotation, specification, delivery note, invoice or similar document, whether or not such document is referred to in the Contract.
1.2 Each Purchase Order for Goods and/or Services will be accepted by the Seller on these General Terms and Conditions of Purchase. Unless previously withdrawn by the Buyer, Purchase Orders shall be deemed accepted if not rejected by the Seller by notice in writing within seven (7) days of the date of the Purchase Order.
1.3 Delivery of the Goods or commencement of the Services will be deemed conclusive evidence of the Seller's acceptance of the Contract.
1.4 Orders by the Buyer will be on these General Terms and Conditions and shall only be valid if confirmed by the Buyer via provision of a valid Purchase Order. All Purchase Orders and written confirmations must carry the Buyer's official Purchase Order number in order to be valid.
1.5 The Seller should not supply Goods and/or Services to the Buyer before the Seller has received a valid Purchase Order (stating the Purchase Order number) from the Buyer.
1.6 The Seller may not cancel the Contract. The Buyer is entitled to cancel the Contract in whole or in part by giving written notice to the Seller at any time prior to delivery of the Goods (or performance of the Services) in which event the Buyers sole liability will be to pay the Seller fair and reasonable compensation for work-in-progress at the time of cancellation but such compensation will not include loss of profits (whether direct or indirect and whether actual or anticipated) or any indirect or consequential loss.
2.1 The Goods and/or Services shall be delivered and/or performed at the address provided by the Buyer to the Seller.
2.2 The Goods and/or the Services will be delivered and/or performed during the Buyer's normal office hours on the date or within the period agreed between the Buyer and the Seller.
2.3 Time for delivery of the Goods and/or performance of the Services will be of the essence.
2.4 If the Goods are not delivered or the Services are not performed and/or completed in full on such date or within such period as agreed between the Buyer and the Seller, the Buyer will be entitled, without prejudice to any of its other rights under the Contract, to terminate the Contract by giving written notice to the Seller.
2.5 Without prejudice to the Buyer's other rights under the Contract, the Buyer is not obliged to accept quantities of the Goods which vary from those specified in the Specification and/or Purchase Order.
2.6 When required by the Buyer, the Seller will mark the materials ordered in accordance with the reasonable instructions of the Buyer.
2.7 The Seller will comply with all applicable standards, regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and/or provision of the Services.
2.8 If the Goods are being imported to the Buyer from outside the Republic of South Africa the provisions of this Condition 2.8 shall apply notwithstanding any other provision of these General Conditions of Purchase:
a) Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2010 shall have the same meaning in these General Conditions of Purchase. In the event of conflict between Incoterms 2010 and these General Conditions of Purchase, the latter shall prevail.
b) Unless stated otherwise in the Contract any Goods being imported to the Buyer shall be delivered "Delivery Duty Paid" (DDP) to the Buyers place of business.
3.1 The Buyer will not be deemed to have accepted the Goods until a reasonable period after the date of delivery of the Goods or after any latent defect would have become apparent. For the avoidance of doubt no inspection or testing by the Buyer whether before or after delivery of the Goods nor the signing of any delivery note or other document acknowledging physical receipt of any Goods shall be deemed to constitute acceptance or approval of the Goods nor be deemed a waiver of the Buyer's rights either to cancel or to return all or any part of the Goods where the Goods are found to be defective or not in accordance with the Contract. Payment for the Goods shall not be deemed evidence of acceptance.
3.2 The Seller acknowledges that precise conformity of the Goods and Services with the Contract is of the essence of the Contract and the Buyer will be entitled to reject the Goods and/or Services or terminate the Contract under Condition 20, if the Goods or Services are not in conformance with the Contract, however slight the breach may be. Any breach of this Condition is deemed to be a material breach.
3.3 The Buyer shall be entitled to reject Goods that do not comply in all respects with the Contract and shall upon rejection return such Goods to the Seller at the risk and expense of the Seller. Upon notification of rejection, the Seller, as the Buyer may require, shall either at its own expense deliver to the Buyer Goods complying in all respects with the Contract in substitution for those rejected Goods, or credit the Buyer in full for the invoice value of the rejected Goods.
3.4 The Seller shall promptly keep the Buyer informed of any matter of which it is or reasonably should be aware of in relation to the storage, transportation, handling, assembly or use of the Goods by the Buyer (including any legislation or advice from responsible or professional or legal bodies in respect of e.g. raw materials used in the manufacture of the Goods) and the actions the Seller has taken or proposes to take and those that the Buyer should take in relation to such matters.
4. Title and Risk
Title and risk in the Goods shall pass to the Buyer when the Goods are delivered in accordance with the Contract and without prejudice to any right of rejection which the Buyer may have under the Contract or by law.
5. Price and Payment
5.1 The Price for the Goods and/or the Services stated in the Contract will not be increased without the consent of the Buyer and shall be inclusive of all expenses and costs including packing and carriage, of any duties, taxes, tariffs, labelling, insurance costs and all other costs or other impositions chargeable or leviable on the Goods and/or Services and of any other sums whatsoever payable to any person in respect of the Goods and/or Services incurred by the Seller in relation to the Goods and/or Services and their delivery unless otherwise agreed in the Contract.
5.2 The Seller will only invoice the Buyer on or after delivery of the Goods and/or on completion of the performance of the Services.
5.3 If any sums are due to the Buyer from the Seller, then the Buyer shall be entitled to exercise the right to set-off such sums against any payments due to the Seller from the Buyer, whether such liability is present or future, liquidated or unliquidated or under or in relation to this or any other Contract. The Seller shall not be entitled to apply any amounts due to the Buyer under the Contract in or towards payment of any sum owing by the Buyer to the Seller in relation to any matter whatsoever.
5.4 Any money paid by the Buyer to the Seller in respect of any Goods or Services rejected under the Contract together with any additional expenditure over and above the Price specified in the Purchase Order reasonably incurred by the Buyer in obtaining other goods or services in replacement of any rejected Goods or Services will be paid by the Seller to the Buyer within seven (7) days of the date of the Buyer's notice demanding the same or, at the Buyer's sole option, shall be deducted from the money still to be paid by the Buyer to the Seller in relation to such Goods or Services.
5.5 All sums payable under the Contract shall be inclusive of Value Added Tax ("VAT") (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority). Where it is agreed that VAT shall be paid by the Buyer, the Seller shall show as a separate item in its invoice the amount of such VAT, including any exchange rate used, where applicable.
5.6 All Purchase Orders and invoices prepared pursuant to the Contract are to be expressed in South African Rands, unless specifically designated otherwise in the Purchase Order. Payment is due thirty (30) days following the end of the month stated in the date of invoice. All invoices must quote the Buyer's Purchase Order number, the Seller's VAT number (if charged) and must be sent to the Buyer. The Buyer will return to the Seller invoices which do not bear the Buyer's official Purchase Order number or do not contain a valid VAT number (if charged).
5.7 In the event that the Buyer wishes to dispute any part of an invoice, the Buyer must notify the Seller within thirty (30) days of receipt of the invoice explaining the reason for the dispute, and the amount disputed. If the Seller is notified of a disputed invoice as provided above, the Seller will send a credit note for the full invoice and prepare two invoices: one for the disputed part and one for the undisputed part_ The undisputed invoice will then be paid by the Buyer within thirty (30) days of receipt. In respect of the disputed sum the parties will negotiate in good faith to resolve the dispute. If a resolution cannot be reached within thirty (30) days of the Buyer giving notice under this Condition 5.7, Condition 27 will apply to the dispute.
5.8 Payment of invoices shall not constitute acceptance of or be deemed acceptance of off-specification, unsuitable, deficient, or non-conforming Goods and/or Services and nor shall it be construed as a waiver of any of the Buyer's rights or remedies under the Contract.
5.9 Notwithstanding any purported contrary appropriation by the Seller, the Buyer will be entitled, by giving written notice to the Seller, to appropriate any payment by the Buyer to any invoice issued by the Seller.
6.1 The Seller undertakes, represents and warrants to the Buyer that any raw materials (if applicable) used in manufacturing the Goods and the Goods and/or the Services (where applicable) themselves will:
a)conform in all respects as to quantity, quality, safety, instruction of the Buyer, or sample provided to the Buyer, and description, with all particulars stated in the Contract, any applicable specification provided by the Buyer and all relevant national statutes, directives, laws and regulations in force from time to time; and
b)be free from defect in design, material and workmanship; and be accompanied with accurate, complete and comprehensible instructions for the treatment, assembly, use and/or storage of the Goods; and
c)be of satisfactory quality, free from defects in materials and workmanship and fit for their intended purpose (whether such purpose is implied or expressly stated in the Contract); and
d)be free from design and other inherent defects (save to the extent that the Goods have been supplied in accordance with designs of the Buyer); and
e)will not infringe any third party intellectual property rights; and
f) will be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with the Contract; and
g) will be performed to such standards of quality generally observed in the industry for similar Services.
6.2 The Seller undertakes, represents and warrants to the Buyer that it and its representatives shall:
a)not be in breach of any contractual obligation with any third party by reason of entering the Contract or the performance of the Services.
b)act in accordance with all applicable laws, rules, decrees, regulations pertaining to the protection of Personal Information, published industry accepted guidelines and, where relevant and applicable to the provision of the Services/Goods, Condition 17.
c)Where relevant and applicable perform the Services in accordance with:
i. the Code of Marketing Practice in South Africa and any other
codes of good practice laid down within the advertising or pharmaceutical industries; and
ii. the Medicines and Related Substances Act 101 of 1965, as amended; and
iii. be fully conversant with the Code of Marketing Practice in South Africa and have completed the Code of Marketing Practice online assessment, if required by the Buyer, before the date of the Contract and every two (2) years thereafter at the Seller's sole expense. The Buyer reserves the right to request proof at any time that Seller has completed a relevant training course. Failure to provide such proof within fourteen (14) days shall entitle the Buyer to terminate the Contract with immediate effect.
6.3 Where the Goods are intended for use as pharmaceutical products or ingredients for pharmaceutical products, the Seller warrants that the Goods and their manufacture, treatment, processing and packaging do and will comply in every respect with all applicable pharmaceutical quality and safety legislation and regulations.
6.4 The Seller will use its best endeavours to transfer or assign to the Buyer or otherwise obtain for the benefit of the Buyer any guarantee, warranty or other confirmation of quality, title or fitness for purpose given by any manufacturer of the Goods in respect of the Goods (or part thereof) to the extent that the same is capable of such transfer or assignment to the Buyer or otherwise providing such benefit for the Buyer.
6.5 Without prejudice to any other rights or remedies of the Buyer (whether express or implied) where there is any breach of Condition 6.1, 6.2, 6.3 and 6.4 above or if any obligation, warranty or requirement imposed by, given or stated in the Contract in respect of the Goods and/or Services is not complied with, or the Goods or any instalment of the Goods are not delivered at the specified time or the Goods delivered are damaged, or if the Buyer terminates the Contract in accordance with Condition 20, the Buyer shall be entitled at its sole discretion without liability to the Seller (arising out of such action) to take one or more of the following actions:
a)cancel the Contract and treat the Contract as having never been entered into by the Seller, and/or
b)reject the relevant Goods (in whole or in part) and any Goods already delivered which cannot be effectively and commercially used by reason of the late or non-delivery of any Goods; and/or
c)refuse to accept any subsequent delivery of the Goods and/or performance of the Services which the Seller attempts to make; and/or
d)recover from the Seller any costs reasonably incurred by the Buyer in obtaining substitute Goods and/or Services from another Seller, and/or
e)require the Seller at its sole cost and expense to replace, repair the Goods or carry out such work as is necessary within fourteen (14) days so that any repaired or replaced Goods conform to the Contract, Purchase Order and/or Specification; and/or
f)require the Seller at its sole cost and expense to re-perform the Services in accordance with the Contract within seven (7) days; and/or
g) delay payment of the Price for the Goods and/or Services until the requirements of the Contract, Purchase Order and/or any Specification are entirely fulfilled;
h) treat the Contract as discharged by the Seller's breach and:
i. refuse to make payment of the Price for the Goods and/or Services; or
ii. require the repayment of any part of the Price for the Goods and/or Services which the Buyer has paid whether or not the Buyer has previously required the Seiler to repair the Goods, supply any replacement Goods or re-perform the Services; and/or
iii. claim damages for any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller's breach of the Contract.
6.6 If the Buyer claims that the Contract has not been fulfilled or has been incorrectly fulfilled the Seller shall be deemed to accept the validity of the claim unless it serves written notice on the Buyer disputing the said claim and stating the reasons for its dispute within seven (7) days of the date of the said claim.
6.7 If the Buyer exercises any right under this Condition 6 the Buyer may at its absolute discretion require the Seller to collect the relevant Goods forthwith or return the Goods to the Seller at the Seller's cost.
7. Inspection and Testing
7.1 The Seller shall before delivery ensure, whether by inspection or testing or otherwise, that the Goods and/or Services comply with the Contract.
7.2 Notwithstanding any such inspection or testing obligation of the Seller, the Buyer may at any reasonable time during the performance of the Contract enter upon the premises of the Seller for the purpose of inspecting and testing the Goods and any materials used in manufacturing the Goods (if applicable). The Seller will not unreasonably refuse any request by the Buyer to carry out such inspection and testing and will provide the Buyer with all facilities reasonably required.
7.3 If as the result of such inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract and the Buyer so informs the Seller within thirty (30) days of inspection or testing, the Seller will take all steps necessary to ensure compliance. Without prejudice to any other rights of the Buyer under the Contract, any failure of this obligation by the Seller will be deemed to be a material breach entitling the Buyer to terminate the Contract under Condition 20.
7.4 Notwithstanding any such inspection or testing, the Seller will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Seller's obligations under the Contract.
8. Product Recall
8.1 The Seller shall immediately notify the Buyer in writing providing all relevant details if it discovers that there is:
a)any defect in the Goods which have been delivered to the Buyer at any time; or
b)any error or omission in the instructions for the use and/or assembly of the Goods; (whether or not any such defect, error or omission represents a breach of Condition 6 or any other Condition under the Contract) which causes or may cause any risk of death, injury or damage to property.
8.2 The Buyer may at its discretion and at the Sellers cost:
a)recall any Goods or any other products into which the Goods have been incorporated which may or may not have been sold by the Buyer to its buyers or is in use by any third party (whether for a refund, credit or replacement which shall in each case be undertaken by the Seller at the Buyer's option); and/or
b)issue any notification whether in writing or otherwise to any third party about the manner or use or operation of any Goods or any other products into which the Goods have been incorporated, in each case whether identification is by the Buyer, its buyers or any third party of any defect in the relevant Goods or any error or omission in the instructions for their use or assembly (whether or not that defect, error or omission represents a breach of the warranty in Condition 6 or any other General Condition under the Contract) which the Buyer reasonably concludes affects or may affect any of the Goods supplied in a manner which causes or may cause any risk of death, injury or damage to property.
9. Suppliers of Raw Materials
The Seller is reminded that it is the Seller's responsibility to act in accordance with all applicable laws, rules, decrees, regulations pertaining to the supply of raw material, published industry accepted guidelines and this Contract and to ensure correct packaging and labelling of dangerous substances and preparations for both conveyance and use and to provide a safety data sheet.
10. Suppliers of Plant, Machinery and Miscellaneous Articles
The Seller is reminded that each article supplied must comply with all applicable laws, rules, decrees, regulations, published industry accepted guidelines and this Contract and be so designed and constructed to be safe and without risk to health when property used. Adequate instructions must be supplied concerning the use and method of operation of each article and any conditions which are necessary to ensure that, when put to that use, it will be safe and without risk to health.
11. Contractors on Site
All contract work on site is subject to applicable policies and procedures of the Buyer, copies of which will be made available to the Seller on request. It is the responsibility of the Seller to ensure that its employees meet the Buyer's requirements and any statutory requirements. Contract work on site must be prearranged with the Buyer in advance of the work taking place.
12.1 The Seller acknowledges that the Buyer places particular reliance upon the Contract and in addition to any other remedy available to the Buyer, the Seller irrevocably and unconditionally indemnifies and holds harmless the Buyer and its Associates and their respective employees, sub-contractors and agents in full and on demand and keeps them so indemnified from and against all third party claims, demands, actions, proceedings and all direct and indirect loss, damage, liability (including without limitation liability for death or personal injury attributable to the Goods) settlement amounts, costs and expenses whatsoever (including without limitation legal fees on an indemnity basis and other professional advisers' fees, economic loss, loss of profit, future revenue, reputation, goodwill, anticipated savings and costs) and any consequential loss made against or incurred or suffered by any of them and whether wholly or in part resulting directly or indirectly from or arising out of or resulting from the use and/or sale of the Goods or of any product incorporating the Goods and/or performance of the Services, except where such are due to the negligence of the Buyer or its Associates, or their respective servants or agents.
12.2 The Seller shall provide all facilities, assistance and advice required by the Buyer or its insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Seller's performance, or purported performance of, or failure to perform, the Contract.
13. The Seller's Legal & Social Responsibilities
13.1 The Seller shall conduct its business, and shall ensure that its subcontractors and other members of its corporate group conduct their businesses, in accordance with all applicable local, national and international laws including, without limitation, the Prevention and Combating of Corrupt Activities Act 12 of 2004 (as amended), the British Bribery Act, the OECD Anti-Bribery Convention and the U.S Foreign Corrupt Practices Act (collectively "Anti-Bribery Laws)") and in a socially responsible and ethical way including, without limitation, with due regard to avoidance of the use of child labour and forced labour, the safety of workers, protection of the environment, eliminating corruption and protection of human rights and in particular the Buyer's Code of Business Ethics and Anti-Corruption Policy, copies of which will be made available to the Seller on request.
13.2 The Seller represents and warrants to the Buyer (a) that it has not done or omitted to do any act or thing which constitutes or may constitute an offence under any applicable law (including Anti-Bribery Laws); (b) that it has not done or omitted to do any act or thing which caused or may cause any person to be in breach of and/or to commit an offence under any applicable law (including Anti-Bribery Laws); and (c) that it has not been, and is not, the subject of any investigation, enquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence under any applicable law (including Anti-Bribery Laws).
13.3 The Seller shall notify Buyer immediately in writing if the Seller or any or its representative are a government official or employee or becomes a government official or employee during the term of providing the Goods and/or Services under the Contract and/or attains a position to influence purchasing decisions of a government entity or a healthcare related institution owned or substantially controlled by a government or public body. Such purchasing decisions may include, but not be limited to, tender issues by health authorities or decisions of formulary committees of public hospitals. In case of such notification by the Seller, the Buyer shall have the right to terminate this Contract with immediate effect.
13.4 Upon the Buyer's request, the Seller shall certify to the Buyer in writing signed by a director of the Seller that the Seller has complied with all of its obligations under the Contract. The Seller will provide such supporting evidence of compliance as the Buyer may request.
13.5 The Seller shall procure that its officers, employees, agents and any other persons who perform services for or on its behalf in connection with the Contract attend such anti-corruption training as may be required by the Buyer from time to time.
13.6 The Seller shall immediately report to the Buyer any breach of this Condition
13.7 The Seller is hereby made aware that any such breach could lead to a termination of the Contract and the overall commercial relationship between the Buyer and the Seller.
The Seller shall at its own cost effect and keep in place with reputable insurers such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under the Contract. The Seller shall on the written request of the Buyer from time to time provide the Buyer with reasonable details of the insurance maintained in force in accordance with this Condition, and, on the renewal of each policy, the Seller shall send a copy of the premium receipt to the Buyer when requested to do so in writing by the Buyer. The Seller shall do nothing to invalidate any of the policies maintained in force in accordance with this Condition.
15. Intellectual Property
15.1 The Seller shall indemnify the Buyer and shall keep the Buyer indemnified from and against all claims, loss, damage or expense brought, made or suffered by or against the Buyer by reason of any or any alleged infringement by the Goods or their sale or use or incorporation in other Goods or by other items created and/or delivered by the Seller or by the Seller in its performance of the Services, of any letters patent, design rights, registered design rights, trade mark, copyright or other third party intellectual property rights in the Republic of South Africa or elsewhere.
15.2 In the event that any documents, artwork, illustrations, transparencies, print, film and/or other materials in any media or form are produced or provided by the Seller in the course of providing Goods or Services, the Seller agrees that such materials shall be owned by the Buyer, and the Seller hereby assigns all of its rights, title and interest in such documents and materials to the Buyer. The Seller shall perform all necessary acts to give effect to the Contract and, if so requested by the Buyer, shall deliver such materials to the Buyer.
15.3 All plans, drawings, specifications and patterns or other documents and materials relating to the Goods and/or Services, which are delivered, created or performed by the Buyer to the Seller, shall remain the property of the Buyer. The Buyer authorises the Seller to use the intellectual property rights of the Buyer for the purposes only of exercising its rights and performing its obligations under the Contract. The Seller shall maintain all such aforementioned documents in good order and condition and provide adequate insurance for them against all risks whilst in its custody in accordance with Condition 14 above. Upon completion of the Contract or upon request by the Buyer such property shall be returned to the Buyer in good order and condition. Should the Seller fail to return this property to the Buyer, the Buyer may either withhold payment for the Goods and/or Services until such property is returned or withhold such part of the payment due as may be required to replace them or restore them to good order or condition. No such plans, drawings, specifications, or pattern or document or material shall be shown nor its contents disclosed by the Seller to any other person without written agreement of the Buyer.
16.1 It is a condition of the purchase of the Goods and/or Services that the Seller shall not, without the written consent of the Buyer, issue or publish any statement in writing indicating that the Seller has supplied Goods and/or Services to the Buyer or is a supplier to the Buyer, whether regularly or intermittently or otherwise of the Goods and/or Services or any other goods and/or services but without prejudice to the Buyer's rights with respect to the supply of Goods and/or Services whether under the Contract or by virtue of a course of dealing with respect to the Goods and/or Services or similar goods.
16.2 The Seller shall keep and procure that its employees, agents and subcontractors keep secret and confidential information disclosed or obtained as a result of the relationship of the parties under the Contract (the "Information") and shall not use nor disclose the same save for the purposes of the proper performance of the Contract or with the prior written consent of the Buyer. Such Information may include but not be limited to oral and written information, know-how and other technical details regarding existing and future products, regulatory affairs, clinical trials, development work, project timetables, manufacturing processes, sales and marketing strategies and practices and the Buyers business in general.
16.3 The Seller shall only disclose information disclosed or obtained as a result of the relationship of the parties under the Contract to employees, agents and sub-contractors who need to know such Information in connection with the Contract and who have agreed to be bound by obligations equivalent to those herein.
16.4 The obligations of confidentiality in this Condition 16 shall not extend to any Information which: is publicly available or becomes publicly available through no act or omission of the Seller; or was independently disclosed to the Seller by a third party entitled to disclose the same without any obligation of confidentiality or non-use.
16.5 If the Seller is required by applicable law, regulation, statutory authority or the rules of a stock exchange to disclose any of the Information, insofar as the Seller is able to do so the Seller shall give the Buyer reasonable advance notice of such disclosure requirement, shall disclose only that portion of the Information which the Seller is advised by written opinion of counsel is legally required and shall use its reasonable efforts to ensure that such Information will be treated confidentially by such legal or statutory authorities.
17. Protection of Personal Information
17.1 Where the Buyer is the Responsible Party and the Seller is the Operator under the Contract:
a)The Seller shall at all times comply with obligations equivalent to the obligations of the Buyer under the provisions of Condition 7 of the Protection of Personal Information Act 4 of 2013 and shall take appropriate, reasonable technical and organisational measures to prevent unauthorised or unlawful access or processing of Personal Information and against loss or destruction of, or damage to, Personal Information. When considering what measure is appropriate, the Seller shall have regard to the state of good practice, technical development and the cost of implementing any measures to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful access or processing or loss or destruction, and to the nature of the Personal Information to be protected;
b)the Seller shall process Personal Information only to the extent, and in such a manner, as is necessary for the purposes of delivering the Goods and/or Services under the Contract and solely in accordance with the Buyer's instructions from time to time.
c)The Seller shall ensure that access to the Personal Information is limited to:
i. those employees who need access to the Personal Information to meet the Seller 's obligations under the Contract; and
ii. in the case of any access by any employee, such part or parts of the Personal Information as is strictly necessary for performance of that employee's duties.
d)The Seller shall ensure that all employees who have access to the Personal Information in accordance with Condition 17.1(c) above:
i. are informed of the confidential nature of the Personal Information;
ii. have undertaken training in the laws relating to handling Personal Information; and
iii. are aware both of the Seller's duties and their personal duties and obligations under such laws and the Contract.
e)The Seller will keep a record of any processing of Personal Information it carries out on behalf of the Buyer.
f)The Seller shall promptly comply with any request from the Buyer requiring the Seller to amend, transfer or delete the Personal Information.
g)At the Buyers request, the Seller shall provide to the Buyer a copy of all Personal Information held by it in the format and on the media reasonably specified by the Buyer.
h)The Seller shall not transfer the Personal Information outside the Republic of South Africa without the prior written consent of the Buyer. The Seller shall ensure that the transfer of any Personal Information out of the Republic of South Africa will apply with applicable laws.
i)The Seller shall promptly inform the Buyer and shall provide the Buyer with full co-operation and assistance if it becomes aware of any advance in technology and methods of working regarding the protection of Personal Information in connection with the Contract; any unauthorised or unlawful processing of any Personal Information; or if any Personal Information is lost or destroyed or becomes damaged, corrupted, or unusable. The Seller will restore such Personal Information at its own expense.
j) The Seller shall notify the Buyer immediately if it receives a request from a Data Subject for access to that person's Personal Information and shall provide the Buyer with full co-operation and assistance in relation to any request made by a Data Subject to have access to that person's Personal Information.
k) The Seller shall not disclose the Personal Information to any Data Subject or to a third party other than at the request of the Buyer or as provided for in the Contract.
17.2 Where the Seller collects Personal Information on behalf of the Buyer it must do so in accordance with instruction from the Buyer and in a format agreed by the Buyer in writing containing a data protection notice informing the Data Subject of the identity of the Buyer, the identity of any data protection representative it may have appointed, the purposes or purposes for which their Personal Information will be processed and any other information which is necessary having regard to the specific circumstances in which the data is, or is to be, processed to enable processing in respect of the Data Subject to be fair.
17.3 Where the Services/Goods involve the sale of Personal Information to the Buyer the Seller shall ensure that all Personal Information has been collected and sold in accordance with the Protection of Personal Information Act 4 of 2013 as may be amended from time to time and that the Buyer is able to use the Personal Information for the required purpose under the Contract.
17.4 If the Seller receives any complaint, notice or communication which relates directly or indirectly to the processing of the Personal Information or to either party's compliance with the Protection of Personal Information Act 4 of 2013 and the data protection conditions set out therein, it shall immediately notify the Buyer and it shall provide the Buyer with full co-operation and assistance in relation to any such complaint, notice or communication.
17.5 The Operator agrees to indemnify, defend and holds harmless the Responsible Party, its Associates, respective staff, successors, cessionaries and assigns, from any and all losses, costs, expenses and damage, including penalties and fines arising from the Operator's non-compliance with the provisions of this Condition and the Protection of Personal Information Act 4 of 2013.
18. Sub-Contracting, Assignment and Rights of Third Parties
18.1 The Contract shall be performed by the Seller or by its holding company or subsidiary or by a subsidiary of its holding company and not by way of subcontract to any other company, firm or person without the prior consent in writing of the Buyer. No such sub-contract shall in any way limit or otherwise affect the obligations of the Seller under the Contract. In contracting with third parties to supply Goods and/or Services under the Contract the Seller shall ensure that any warranties received by the Seller shall extend to the Buyer. If express warranties are not received by the Seller for the Goods and/or Services supplied by such third party, the Seller warrants such Goods and/or Services shall be provided to the same extent as detailed in the Contract. The Seller warrants that its contractual arrangement with permitted sub-contractors shall substantially reflect the Contract. The Seller remains fully liable to the Buyer for any Goods and/or Services supplied by a third party. The Seller may not assign the Contract or any sub-contract made there under or any of their benefits to any third party without the written consent of the Buyer.
18.2 The Buyer shall be entitled, without prior written consent of the Seller, to assign, transfer, mortgage or charge the Contract or any of its rights and obligations under or arising out of the Contract, in whole or in part to any of its Associates at any time.
a) The Seller shall maintain such records (the "Records") as are reasonably necessary for the purpose of enabling the Buyer to conduct an audit of the Seller's compliance with relevant laws and regulations and the terms of the Contract, including, but not limited to, up to date records and books of account showing all payments made and received and all other advantages given and received by the Seller in connection with the Contract and the steps taken by the Seller to comply with Condition 13.1.
b) The Seller will allow the Buyer's personnel, or an independent auditor appointed by the Buyer, access to all of the Records during the term of the Contract, and for six (6) years afterwards, on not less than seven (7) working days' written notice at any time during normal business hours for the purposes of auditing or otherwise inspecting them. The requirement under this Condition to give notice will not apply if the Buyer believes that the Seller is in breach of any of its obligations under the Contract.
c) The Seller will afford to the Buyer all reasonable assistance in carrying out such an audit, while the Buyer and its auditor will ensure that any information obtained in the course of the audit concerning the Seller’s business is kept in confidence and not used for any purpose other than the proper conduct of the audit
d) The Seller shall also obtain all necessary consents/undertakings for the Buyer to be able to conduct similar inspections and audits of the businesses of other members of the Seller's corporate group, and of the Seller's subcontractors in accordance with this Condition 19.
20.1 Without prejudice to any of its other rights under the Contract the Buyer may by notice in writing to the Seller terminate the Contract forthwith if:
a) the Seller commits any breach of the Contract, or
b) the Seller ceases or threatens to cease to carry on business or permits any judgment against it to remain unsatisfied for seven (7) days; or
c) there is a change in control of the Seller, or
d) being a company, a close corporation or a partnership the Seller has a petition presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for its winding up (otherwise than for the purposes of a bona fide amalgamation or reconstruction) or compounds with its creditors, or if the Seller becomes insolvent, or an examiner is appointed to it or a receiver, liquidator or similar officer is appointed in respect of all or any part of its business or assets, or a comparable event in any jurisdiction; or
e) being an individual the Seller dies, or becomes bankrupt or insolvent, or enters into any arrangement with creditors or takes or suffers any similar action in any jurisdiction in consequence of debts.
20.2 The termination of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
20.3 Upon termination of the Contract for any reason whatsoever:
a)(subject to Condition 20.2 above) the relationship of the parties shall cease save as (and to the extent) expressly provided for in this Condition 20.3;
b)any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect; and
c)the Seller shall immediately return to the Buyer (or if the Buyer so requests by notice in writing, destroy) all of the Buyer's property in its possession at the date of termination including all Information, together with all copies of such Information and shall certify that it has done so, and shall make no further use of such Information and/or all plans, drawings, specifications and patterns belonging to the Buyer.
If any clause, condition or any provision of the Contract is held to be or becomes void, invalid, unlawful or unenforceable for any reason whatsoever, the same shall be deemed omitted from the Contract and such decision shall not affect the validity or enforceability of the remaining clauses, conditions or provisions of the Contract.
No waiver of any right under, or breach of the Contract will operate as a continuing waiver or waiver of any subsequent breach of that or any other provision. Any waiver of any breach of the Contract shall be in writing.
Any notice or other document required to be served on the Seller shall be delivered by email or fax to the Seller and any notice or other document required to be served on the Buyer shall, in the case of an invoice or statement, be delivered by email or fax to the Buyer.
No purported alteration or variation of any provision of the Contract shall be effective unless it is in writing, refers specifically to the Contract and is signed by a duly authorised representative of each of the parties to the Contract.
25. Force Majeure
25.1 Any party that is subject to a Force Majeure Event shall not be in breach of the Contract provided that:
a) it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and
b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to al the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under the Contract on any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
25.2 During any period of suspension by the Seller of delivery of Goods or performance of Services in accordance with Conditions 25,1 above the Buyer shall be at liberty to purchase elsewhere such Goods and/or Services as it reasonably anticipates it may require and the Buyer may reduce the quantity to be taken under the Contract by that amount.
25.3 If the suspension prevails for a continuous period of more than two months, any party may terminate the Contract by giving fourteen (14) days’ written notice to the other party. On the expiry of this notice period, the Contract will terminate. Such termination will be without prejudice to the rights and remedies of the parties which may have accrued prior to such termination.
26.1 Unless otherwise agreed in writing in a mutually agreed contract signed by an authorised representative of both parties, the Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
a)neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any representation or statement (whether made by the other party or any other person), which is not expressly set out in the Contract; and
b)nothing in this Condition 26 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
26.2 The Buyer's rights and remedies set out in the Contract are in addition to and not exclusive of any rights and remedies provided by law.
26.3 The supply of Goods or performance of Services by the Seller does not make the Seller an agent, joint venture, collaborator, partnership or employee of the Buyer. In the event that demands for any tax and/or any equivalent are received by the Buyer in connection with the Seller's appointment or otherwise in respect of the Contract, the Seller shall promptly indemnify the Buyer against any such demands.
26.4 Save as afforded hereunder to the Buyer's Associates and Condition 12, a person who is not a party to this Contract shall not have any rights under or in connection with it.
27. Applicable Law
The Contract and any dispute or claim arising out of or in connection with it shall be governed by and construed in all respects in accordance with the laws of the Republic of South Africa. Nothing in the Contract shall prejudice any condition or warranty (expressed or implied) or right or remedy to which the Buyer is entitled in relation to the material or Goods or Services ordered by virtue of statute or Common Law and the parties irrevocably submit any dispute or claims arising out of the Contract to the exclusive jurisdiction of the Courts of the Republic of South Africa.
Without prejudice to any other rights or remedies that the Buyer may have, the Seller acknowledges and agrees that where damages alone would not be an adequate remedy for any breach of the Contract by the Seller, the Buyer shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of this Contract.