1. SCOPE AND INTERPRETATION

1.1 These terms and conditions shall apply in respect of each and every order and/or contract for the sale or provision of goods and/or services and/or the undertaking of projects by the supplier to Powertech Transformers (Pty) Ltd, unless specifically otherwise agreed between the parties in writing.

1.2 The provisions of this document shall overrule any terms and conditions of contract of the supplier, unless specifically otherwise agreed between the parties in writing.

1.3 Powertech Transformers (Pty) Ltd may agree to a specific contract on special terms set out in the quotation or tender for such contract, and in the event of any inconsistency between the provisions of these terms and conditions and any such special terms, the special terms of the specific contract shall prevail.

1.4 In this document headings embodied in the clauses are for convenience and shall not be used in its interpretation and, unless the context clearly indicated a contrary intention;

1.4.1 the singular shall include the plural and visa versa

1.4.2 the reference to one gender shall be capable of being construed as reference to any of the others; and

1.4.3 the reference to a natural person shall be capable of being construed as a reference to a juristic person and visa versa.

1.5 Unless the context of this document clearly indicates a contrary intention, the following words or phrases shall have the meanings assigned to them:

1.5.1 "the customer" shall mean Powertech Transformers (Pty) Ltd with whom a contract is concluded.

1.5.2 "the supplier" shall mean the party to the contract who has to supply the goods and/or services and/or undertake the project.

1.5.3 "goods" shall be those goods to be supplied by the supplier as specified in the supplier's quotation.

1.5.4 "services" shall be those services to be supplied by the supplier as specified in the supplier's quotation.

1.5.5 "projects" shall mean any project or projects, or parts thereof, to be undertaken by the supplier and as specified in the supplier's quotation.

1.5.6 "order" shall mean a written request or instruction by the customer for the supply of the goods and/or services and/or the undertaking of projects by the supplier.

1.5.7 "quotation" a written quotation or tender by the supplier for the supply of the goods and/or services and/or the undertaking of projects.

1.5.8 "contract" shall mean any contract for the supply of goods and/or services and/or the undertaking of projects by the supplier.

1.5.9 "acceptance shall mean such tests to be made by the supplier tests" before the works are taken over by the customer as are provided for in the contract or, where no specificprovision in the contract exists, such tests as are normally made by the supplier in respect of similar works.

1.5.10 "acceptance shall mean a certificate evidencing the execution of certificate" acceptance tests, and the acceptance of the works in accordance with those tests.

1.5.11 "take-over date" shall mean the date that the customer signs an acceptance certificate certifying that the works have been completed in accordance with the contract and have passed the acceptance tests.

1.5.12 "works" shall mean all goods, work and services to be provided by the supplier in terms of the contract and/or order.

1.5.13 "due date" shall mean:

(1) In relation to the supply of goods, the date specified on an invoice or on a statement, on which date goods were supplied to the customer; and

(2 ) In relation to the supply of repair services and similar non-project type services, the date ofinvoice or the date specified in a statement on which date repair services and similar non-project type services were supplied; and

(3) In relation to the supply of other services and/or Projects, the agreed take-over date.

1.5.14 "agreed period" shall mean the number of day's credit allowed from the due date, either net or subject to a settlement discount as agreed to in writing by the supplier.

1.5.15 "retentions" shall mean the withholding of portions of the contract price if so agreed upon between the parties, the purpose of which shall be to ensure the due fulfillment by the supplier of its obligations in terms of the contract.

1.5.16 "delivery" unless inconsistent with, or otherwise indicated by the contents of the contract, shall be regarded as taking place:

(1) In the case of delivery ex-stores, the supplier's premises: when the delivery note is signed by the customer or a representative.

(2) In the case of delivery by rail: when a Rail Consignment Note (accompanied by a set of packing lists or detailed delivery note) is stamped by the South African Transport Services.

(3) In the case of delivery through post: when a parcel post receipt or other proof of postal dispatch (accompanied by a set of packing lists or detailed delivery note) is stamped by the South African Post Office.

(4) In the case of delivery by air: when an airway-bill (accompanied by a set of packing lists or detailed delivery note) is stamped by the air carrier in question.

(5) In the case of delivery to a customer's address in South Africa or a specified territory: as per (2), (3) and (4) above, as the case may be but with consignment note, proof of posting or air waybill endorsed "carriage paid". Alternatively when a delivery note is signed by the customer or his authorized representative.

(6) In the case of delivery FOB (FCA) South African port: when an original bill of lading (accompanied by a set of packing lists or detailed delivery notes) is signed by the carrier.

(7) In the case of delivery CIF to customer's port of entry, ex South African port; as per (6) above, but with bill of lading (accompanied by proof of insurance cover to port of destination) endorsed "freight paid".

1.5.17 "these terms and Conditions" shall mean this document.

1.5.18 "the Act" the Occupational Health and Safety Act, no. 85 of 1993, as amended.

1.5.19 "relevant Act" any legislation or regulation in any territory similar to the Act.

 2. QUOTATIONS

2.1 Where the supplier supplies a quotation no contract between the parties shall exist until acceptance of that quotation by the customer is received in writing by the supplier, together with the official order number of the customer.

2.2 If the supplier purports to accept any order subject to any qualification or to any terms other than those contained in this document and in the quotation, no contract shall be concluded and the customer shall not be bound until it expressly binds itself in writing to those terms.

2.3 Any drawing or information supplied with a specification or order shall not be transmitted or communicated to any person, whether natural or juristic, who is not subject to the provisions of this document, without the customer's prior written authority. Ownership of all plans, diagrams and patterns shall vest in the customer and not copies of such shall be made without the customer's prior written consent.

2.4 Unless specifically otherwise stated in a quotation, the accuracy of data such as dates, dimensions, weights, capacities, calculations and quantities specified in a bill of quantities accompanying the specification is guaranteed by the supplier.

2.5 A quotation provided by a supplier to the customer shall remain valid, and unless withdrawn prior to acceptance, shall be capable of acceptance within the period stated therein, or where no period is stated, for a period of sixty (60) days as calculated from the date of the quotation.

2.6 Any quotation must be accompanied by sufficient information in writing to enable the customer to proceed with the order forthwith, failing which the customer shall be entitled to demand indemnification to cover any increases in cost incurred as a result thereof.

2.7 Where a quotation has been given for the sale of goods and if an order is subsequently received for such goods, there will be an obligation on the supply to supply such goods.

2.8 Unless otherwise stated, quotations and budget prices shall bind the supplier.

3. LIMIT OF CONTRACT

3.1 The supplier shall only be obliged to supply the works as are specifically quoted for by it and accepted by the customer.

3.2 The supplier shall be responsible to check, verify and re-measure all specifications, drawings and/or measurements forming part of the contract and shall be liable for any errors in such specifications, drawings and/or measurements. 

4. PACKAGING

Unless otherwise specified, all prices contained in a quotation shall include packaging in accordance with the standard practice of the supplier. 

5. CONTRACT COMPLETION AND DELIVERY

5.1 Delivery of anything to be delivered in terms of the contract shall take place upon physical delivery thereof to the addresses referred to in clause 5.2 below, or a mutually agreed storage facility, and the date of such delivery shall be the delivery date for purposes of this contract. In the event that the supplier is ready to deliver and the customer is not ready to accept delivery at the addresses referred to in clause 5.2 below, or, where the storage facility where such delivered goods would be stores is not ready to accept delivery thereof, then the supplier shall store such goods on behalf of the customer in its own storage facilities.

5.2 The addresses at which the works shall be supplied shall be those addresses specified on the customer's order form, unless otherwise specified.

5.3 Delivery shall include off-loading/assistance with off-loading, unless otherwise agreed, and the supplier shall arrange the hiring of any special hoists and other lifting equipment if necessary.

5.4 The supplier shall adhere to any access restrictions prevailing on the customer's site and shall pre-arrange access to restricted areas with the customer. In the event of the customer not being able to provide such access due to lack of sufficient notice by the supplier, the supplier shall not be entitled to claim from the customer any additional costs incurred by the supplier by virtue of such suspension or delay.

5.5 The supplier shall complete the works within the time period specified in the quotation and shall incur any penalties specified in the order contract in the event of it failing to do so, unless specifically otherwise agreed in writing. 

6. PRICES AND PAYMENT THEREOF

6.1 The price for a specific contract shall be as reflected in the quotation and final order, or as agreed and/or amended by the parties in writing.

6.2 The supplier shall not be entitled to an increase or variation of the contract price in the event of a variation or suspension of work or a delay at the instance of the supplier or as a result of delay caused by force majeure circumstances.

6.3 Unless otherwise agreed, payment terms shall be either payment against invoice or statement or progress payments whichever is specified in the quotation, and if progress payments are in force, payment intervals and the bases of calculation of such payments will be those as set out in the quotation.

6.4 Unless otherwise agreed in writing between the parties, amounts shall not be payable before the due dates reflected in the quotation and final order, absent which shall be the dates defined in clause 1.5.13. 

7. OWNERSHIP

The ownership in all goods sold, delivered or in any other way made available to the customer by the supplier shall become vested in the customer against delivery thereof or as soon as the customer has made full payment of the purchase price for such goods, whichever occurs first. 

8. RISK

The risk in the goods or any portion of the works shall remain with the supplier until the later of delivery of the goods or relevant portions of the works to the customer or its agent and the take-over date. 

9. LIABILITY FOR DELAY AND EXTENSIONS

Any times quoted for delivery are binding to the supplier. Whenever any delay is caused by the supplier due to any cause whatsoever, the supplier shall be liable for the delay and any resulting penalties as set out in the purchase order. 

10. PERFORMANCE, INSPECTION AND TESTS

10.1 Any performance figures given by the supplier will be binding on the supplier. The supplier accepts liability for damages for failure to attain such figures up to the amount specifically so agreed with the customer prior to the acceptance of the order. The supplier bears the sole responsibility should the performance of the works that were supplied in accordance with the customer's requirements be found not to be performing in accordance with what is required there from.

10.2 The supplier's work shall be carefully inspected and submitted to tests either at the customers address as referred to in clause 5.2 or at the supplier's factories and/or warehouses before dispatch or unless specifically otherwise stated in a quotation and/or final order. If tests in the presence of the customer's representative are required, these will not be charged for. 

11. WARRANTY

11.1 The supplier warrants that anything supplied or undertaken by it in terms of any contract with the customer, shall be fit for the purpose it was intended to serve and free from defects arising as a result of poor workmanship or defective materials or design for a period of twelve (12) months after any goods have been delivered, or, in the event of the supply of works, twelve (12) months after an acceptance certificate is signed by the customer, unless longer standard warranties or agreed warranties are applicable for the goods or works.

11.2 Without detracting from the customer's claim for damages, where appropriate, the supplier's obligation arising out of any warranty or representation given by it shall be to replace or repair the defective goods or services at the supplier's cost.

12. DUTIES UNDER THE ACT

The supplier undertakes to take such steps as are sufficient, necessary and reasonably practicable in order to ensure that the goods supplied in terms of a contract/order, will be safe and without risks to health when properly used, and is subject to any duties imposed on the supplier by section 10 of the Act or any relevant Act.

13. AUTHORISED REPRESENTATIVES

The supplier and the customer shall each appoint an authorised representative to liaise with the other regarding day-to-day decisions in connection with the progress of a contract. The authorized representatives shall each have the power to make all such decisions as may be required from him by the other party and the other party shall be entitled to act upon such decisions. The parties shall not accept instructions or requests from the other party other than through the authorised representative, and all such instructions and/or requests shall be in writing. 

14. ACCEPTANCE CERTIFICATES

14.1 At the delivery of goods and/or the completion of works or phases thereof the customer shall sign an acceptance certificate in accordance with the provisions of this clause.

14.2 The acceptance certificate shall state in clear terms to what portion of any work performed by the supplier the certificate relates, and shall state clearly the matters set out in clause 14.3 hereunder. The acceptance certificate shall be signed and dated by the authorized representative of the customer.

14.3 In the event that the works form part of a phase of a bigger project which is dependent upon any work and/or services to be performed by a third party, the customer shall sign an acceptance certificate stating that although that phase is not completed, the supplier's work have been completed to the satisfaction of the customer. Should in such an event any testing of anything provided by the supplier be required but capable of only being undertaken after the completion of a phase, the acceptance certificate so given shall state that it is subject o and dependent on the results of any such tests undertaken after the completion of the phase. 

15. FIXED PRICING

All prices quoted are fixed for the duration of the contract unless specifically otherwise agreed in writing.

16. COST CONTAINMENT

16.1 In order to assist the customer and to contain the cost of any imported goods to be supplied in terms hereof, the supplier shall arrange forward cover on the customer's behalf.

16.2 Should the customer wish to avail itself of this benefit, it shall indicate to that effect in writing at the time of acceptance of the supplier's quotation.

16.3 In the event of the customer availing itself of this benefit, the supplier undertakes to provide a forward cover rate which is inserted in the relevant forward cover section of the quotation.

16.4 On being informed by the customer that it wishes to avail itself of this benefit, the supplier undertakes to enter into a forward exchange contract for the benefit of the customer within four (4) business days from the customer accepting the quotation. The rate of exchange per the actual forward exchange contract will be confirmed to the customer in writing by fax, post or any other form of communication as soon as it is known.

16.5 The supplier shall invoice the customer at the rate of exchange confirmed to the customer as per clause 16.4 above. 

17. PENALTIES

The supplier shall be liable for the payment of penalties as specifically agreed between the parties in writing. 

18. LAW TO APPLY

This agreement, its interpretation and termination shall be governed by and construed in accordance with South African law. 

19. BREACH

19.1 This agreement shall be deemed to be breached by any party if that party is placed into liquidation in terms of the Insolvency Laws operating in the Republic of South Africa, or in the case of any judicial management of that party or compromise by that party with its creditors, or where that party commits an act which, if that party was an individual, would have constituted an act of insolvency in accordance with South African law, and may under such circumstances immediately be terminated by the other party by registered letter sent to the other party informing it of the termination of the agreement.

19.2 Should either party commit a breach of any provision of this agreement and fail to remedy such breach or commence with remedifying actions within fourteen (14) days of receiving written notice from the other party requiring it to do so, then the party aggrieved by such breach shall be entitled, without prejudice to its other rights at law, to claim specific performance of all the defaulting party's obligations, whether or not such obligations would otherwise have fallen due for performance, or to claim cancellation of this contract, in either event without prejudice to its right to claim damages, and shall furthermore be entitled to claim payment of any legal costs incurred from the other party on an attorney and client scale.

20. FORCE MAJEURE

20.1 Neither shall have any claim of any nature whatsoever against the other party for any failure to carry out any obligations as a result of force majeure, which shall include, but without being limited to, any strike, lock-out, shortage of labour or materials, fuel shortage, delays in transport, accidents of any kind, any default or delay by any sub-contractor or a supplier of the supplier, riot, sabotage, terrorism, political or civil disturbances, industrial action, the elements, any act of any state or government or other authority, or anything occurring over which either party has no reasonable control.

20.2 If any obligation of either party is delayed by any cause referred to in clause 20.1 above, the period for carrying out the obligation shall be extended to such period (which need no be limited to the actual delay) as may be reasonable under the circumstances.

21. ARBRITRATION

Any dispute arising from or in connection with this agreement shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation. Such arbitration shall take place in Pretoria, South Africa.

Without derogation from the meaning of the word "dispute", which word shall be interpreted widely, it shall be regarded as a dispute for the purposes of this clause if one party addresses to the other any notice in terms of this agreement or dealing with any matter related, directly or indirectly, to this agreement which notice calls either for remedy of any breach or for a response to that notice and, after the lapse of time specified in this agreement for remedy or response, (or, in the absence of any such specified time, a period of seven (7) days form the date of receipt of the notice), the party which gave the notice alleges that no or inadequate remedy has occurred or that no or inadequate response has been received.

22. DOMICILIUM

22.1 The parties choose as domicillium citandi et executandi ("domicillium") and for the delivery of all notices arising out of this agreement or its termination or cancellation the addresses set out below:

22.1.1 the customer at the physical address specified on the customer's official letterheads.

22.1.2 the supplier at the physical address that appears on the supplier's official letterhead or any contract concluded between the parties.

22.2 Either party shall be entitled from time to time, by written notice to the other, to vary its domicillium to any other address within the Republic of South Africa which is not a post office box or poste restante.

22.3 Any notice given and any payment made by any party to any other ("the addressee") which:

22.3.1 is delivered by hand during normal business hours of the addressee at the addressee's domicilium shall be deemed, until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery.

22.3.2 is posted by prepaid registered post from an address within the Republic of South Africa to the addressee at the addressee's domicilium shall be deemed, until the contrary is proved by the addressee, to have been received on the tenth (10) day after the date of posting.

22.3.3 is sent by facsimile machine or e-mail shall be deemed, until the contrary is proved by the addressee, to have been received within one (1) hour of transmission where it is transmitted during business hours of the receiving instrument and at noon of the following business day (excluding Saturdays) where it is transmitted outside such business hours.

22.3.4 No provision of this domicilium clause shall be taken as affecting the validity of any notice which is actually received by any party, whether at its domicilium or not and whether delivered in terms of the express provisions of this domicilium clause or not, and any notice which is actually received by any part shall be deemed to be notice validly given. 

 23. GENERAL

23.1 No alteration of, variation of, or addition to this agreement shall be of any force of effect unless reduced to writing and signed by the parties or their duly authorised representatives.

23.2 Subject to clause 23.1 above, this document contains the sole and entire record of the agreement between the parties. No party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein or otherwise created by operation of law.

23.3 No indulgence, leniency or extension of time which either party ("the grantor") may grant or show to the other, shall in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.

23.4 Neither party may cede its rights or delegate its obligations in terms of this agreement without the prior written approval of the other party, save that the customer may cede its rights or delegate its obligations (or both) to any member company of the Altron group as is constituted by Allied Electronics Corporation Limited and its subsidiaries.

23.5 These standard terms and conditions of procurement form part of any purchase order.

23.6 In the event of a quotation being submitted to the customer, the supplier shall be precluded from denying the validity of such quotation, notwithstanding the fact that such quotation may have been signed by a person not authorised to do so.