1. Introduction
1.1 Terms
The Terms set forth in this document and any Order (”the/these Terms”) shall regulate the relationship between Kayema Energy Solutions (”Kayema”) and the person whom Kayema intends to supply the Supplies (”the Supplier”). For these purposes:
1.1.1 “Supplies” means any goods, materials, articles or services (if any) described in an Order placed by Kayema
1.1.2 “Order” means a written order for Supplies placed by Kayema on the Supplier which Order shall be subject to these Terms, together with any specific terms which Kayema may stipulate are applicable to such Order but excluding any terms or conditions which the Supplier may seek to impose.
1.2 No Exclusivity
Nothing in these Terms shall oblige Kayema to place an Order on the Supplier nor shall anything imply that Supplier is the exclusive provider of Supplies. Kayema may procure Supplies from any party it deems fit.
1.3 Order specific to the named Supplier
The Order is only capable of fulfilment by the Supplier named in the Order, irrespective of who actually receives such Order. Should a party who is not the intended recipient, for any reason whatsoever, receive an Order, including, without limitation, the negligence of Kayema, such recipient shall not be entitled to fulfil the Order.
1.4 Acceptance or rejection
The Supplier shall indicate its willingness and ability to fulfil the Order as soon as possible after having received the Order and shall communicate same to the person who placed the Order on behalf of Kayema without delay. By indicating its willingness and ability to fulfil an Order placed by Kayema, the Supplier accepts and agrees to be bound by the Terms.
1.5 Binding agreement
A valid and binding agreement between the parties on the Terms shall come into existence at the time and place where Kayema issues an Order confirmation number to the Supplier in respect of the Order . Each Order shall create a separate agreement. Notwithstanding the aforegoing, the breach of any one such agreement shall constitute a breach of any or all agreements.
2. Quality and Verification
2.1 Quality
The Supplies shall:
2.1.1 Be of new and sound materials and of sound workmanship and conform as to quality, quantity, description and in all other respects with any agreed samples and with the particulars stated in the Order and any specification or other document referred to in the Order and
2.1.2 Be provided with all due care and skill.
2.1.3 Shall include all requisite materials, accompanying drawings, test certificates, installation and operation manuals and spare parts.
2.2 Failure
If the Supplies fail to meet the requirements of clause 2.1, any of the Supplier’s warranties (express or implied) or Group Five’s instructions, specifications, drawings and data, Kayema may, without liability, at any time reject or refuse to accept and return, at the Supplier’s expense, all or any Supplies and the Supplier shall immediately upon receipt of written notice from Kayema return any payments made by Group Five. Payment for any Supplies shall not be deemed an acceptance thereof.
2.3 Verification
Kayema or its authorised representative shall be afforded the right to verify at source that Supplies conform to specifications and other requirements of the Order. Such verification shall not absolve the Supplier from any of its responsibilities under the Order nor affect Kayema right to reject Supplies nor shall such verification be used by the Supplier as evidence of effective control of quality.
3. Delivery, Title and Risk
3.1 Delivery
The Supplier, at its own expense, shall deliver the Supplies during normal working hours (unless otherwise agreed in writing) properly packed and secured at the place specified in the Order or such other place as may be subsequently agreed. Each package should be plainly marked with the Supplier’s name and the delivery address stated on the face of the Order. Any Supplies that should not have been delivered shall be held at the Supplier’s sole risk or will be returned carriage forward and Kayema shall be entitled to charge the Supplier and be paid for all expenses including without limitation all labour and packing expenses incurred in the return of the Suppliers that should not have been delivered.
3.2 Tracking of Order
At Kayema’s request, the Supplier will as soon as possible provide Kayema with all details relating to the status of the Order.
3.3 Delivery notes
All deliveries must be acknowledged by the signature of a delivery note by a duly authorised official of Kayema and Supplies are to be off-loaded only in accordance with such official’s instructions. Kayema shall not pay for any Supplies for which no valid delivery note exists.
3.4 Packaging
The Supplier shall not charge for the return of any packaging relating to the Supplies including without limitation packing cases or empties (”packaging”). If the Supplier notifies Kayema in its quotation and on its invoices that packaging is returnable and gives the address to which they should be sent, every effort shall be made by Kayema to return such items at the Supplier’s expense and risk. If instructions for the return of packaging are not given by the Supplier to Kayema when Supplies are received, Kayema may without notice to the Supplier dispose of the packaging and no credit shall be allowed to the Supplier in respect thereof.
3.5 Risk and title
Ownership, risk and title in and to the Supplies shall pass to Kayema on acceptance of delivery of the Supplies as contemplated in clause 3.3, provided that acceptance shall not denote sign-off of quality assurance of the Supplies by Kayema.
3.6 Advice note
One copy of an advice note or waybill showing the Order number, the number of packages, the net and gross masses and quantities of the Supplies and the method and route of transport shall be sent by the method in which the Order was received to the address from which the Order originates on the date of despatch of the Supplies from the Supplier’s premises. A further copy of the advice note must accompany the Supplies and one copy should be given to any third party carrier.
4. Time of Delivery and performance of the supplies
4.1 Time
The Supplier shall deliver or perform the Supplies at the times specified in the Order. The Supplies may not be delivered or performed earlier or later than the due delivery or performance date, otherwise Kayema may reject them. Kayema may at his discretion grant an extension to the period if so requested. Time for delivery and other performance by the Supplier shall be of the essence for each Order.
4.2 Failure
If the Supplies or any part hereof are not so delivered or performed, Kayema may cancel the Order in respect of the Supplies undelivered or not performed and for any other Supplies already delivered or performed which cannot be effectively and commercially used by reason of such non-delivery or non-performance.
4.3 Force majeure
The time for delivery or performance shall be extended by a reasonable period if delay is caused by Act of God, refusal of licence (where application has been timeously and appropriately filed) or other governmental act, fire, explosion or by any other cause for the likely duration of any such delay. Kayema shall at its option be excused from accepting or paying for the Supplies for the duration of the cause. Kayema may cancel the Order or any portion of it without liability in the event of more than 14 (fourteen days) delay in delivery or performance of the Supplies for any such cause and in such event the Supplier shall immediately repay to Kayema any sums paid by Kayema for Supplies not retained byKayema.
4.4 Liquidated damages
Without prejudice to any other rights hereunder, in the event of any delay caused by the Supplier, save that arising from Clause 4.3 above, Kayema, at its sole option, reserves the right to claim liquidated damages from the Supplier at the rate of 1% (one percent) of the total price of the Order each calendar day for each day of delay subject to a maximum of 25% (twenty-five percent) of the total price of the Order.
5. Payment Terms
5.1 Invoicing
The Supplier shall submit invoices in respect of the Supplies. Invoices shall be in duplicate, bearing the Order number and the address of origin of the Supplies, one to the address shown on or in the Order (or alternatively if no address is shown then the address from where the Order originated) on the day on which the Supplies are despatched, and the other copy shall be enclosed with the Supplies. Kayema’s official Order number must be quoted upon all delivery notes and invoices. Failure to do so will absolve Kayema of any obligation to pay such invoice until receipt of an invoice bearing the correct Kayema Order number and terms of payment will likewise commence to run only on receipt of such invoice bearing Kayema’s correct Order number. In addition no invoice shall refer to more than one Order.
5.2 Payment
Unless otherwise specifically stated in the Order, such invoices will become due for payment by Kayema 30 (thirty) days after the last day of the month in which the Supplies were delivered, invoiced and a statement of account received. Payment shall be made in a manner determined by Group Five.
5.3 Price
The price shown on the Order is firm and not subject to change for the validity period of the referenced quotation or agreed terms, except for any written variation signed by our authorised representative.
5.4 Supplies not ordered
Kayema shall on no account accept liability for Supplies rendered without an Order.
6. Warranty
6.1 Warranty
If within 12 (twelve) months after delivery and/or performance of the Supplies (”the Warranty Period”), or within a reasonable time after the said Warranty Period, Group Five gives notice in writing to the Supplier of (I) any defect in the Supplies which has arisen during the Warranty Period under proper use, or any other non-conformity of the Supplies with the Order or Kayema’s specifications, drawings and data; (ii) the fact that the Supplies are not fit and suitable for the use intended by Group Five, then the Supplier shall repair, or at Kayema’s request, replace the Supplies so as to remedy the defects or non-conformity without cost (including transportation) to Group Five. Where the Supplier fails to provide such remedy, Kayema may remedy or have remedied the defect or non-conformance at the cost of the Supplier.
6.2 Remedy
If during the Warranty Period the Supplies are found to be defective or not to conform as aforesaid, Kayema may alternatively and without liability cancel the Order and reject any or all such defective or non-conforming Supplies and also any other Supplies already delivered or performed and the Supplier shall thereupon repay any sums already paid by Kayema in respect of Supplies so rejected or not then delivered or performed.
6.3 Failures or non-conformities
Without prejudice to Kayema’s rights under Clause 6.1 and 6.2 hereof, if during the Warranty Period and within 2 years of its expiry, there should develop an epidemic of defects or non-conformities, the Supplier agrees to study and review such failures or non-conformities with Kayema and to indicate steps or recommendations which, in the Supplier’s reasonable judgement would remedy the same. Subject to mutual agreement on a plan of action, the Supplier shall at its own cost effect the remedy of the defects and non-conformities of the Supplies. Where the Supplier fails to provide such remedy, Kayema shall be entitled to remedy or have remedied the defect or non-conformance at the cost of the Supplier. Kayema may reject deliveries of Supplies until the source of the defects and non-conformance has been cured.
7. Statutory Requirements
7.1 Warranty
The Supplier warrants that the Supplies comply with all relevant statutory requirements. In particular and not by way of limitation, the Supplier shall comply with all relevant health and safety legislation and ensure that Supplies that are potentially dangerous to health or safety are delivered only in suitable protective packaging or containers and that the external surface of such packing and/or containers are clearly labelled so as to indicate any hazards to health and safety involved in handing and using the Supplies and as to the method of safe handling of the Supplies.
7.2 Information
A copy of any information relating to the safety aspects or proper use of the Supplies should be sent to Kayema under separate cover.
7.3 Safety
The Supplier shall be responsible for ensuring that any of its employees or other persons carrying out the Order who enter Kayema’s premises are suitably clothed and issued with correct and safe protective equipment, that they are duly warned of hazards which they may encounter on Kayema’s premises and that they adhere to all health and safety at work rules and regulations which are applicable from time to time.
7.4 Taxes and duties
The Supplier shall be responsible for payment of all taxes and duties that may be due in respect of the Supplies and for obtaining at its expense any import or export licence or government consents which may be necessary for the provision of the Supplies under the Order.
8. Intellectual Property Rights
The Supplier shall fully indemnify Kayema and its customers against all liabilities, losses, costs and expenses including but not limited to legal fees, arising from any infringement, or alleged infringement, of any patent, copyright, design, trade mark, trade name or other intellectual property right of any third party by the possession, use, sale or other exploitation of the Supplies.
9. Assignment
The Supplier shall not cede, assign, transfer or sublet the Order or any portion thereof without first having obtained, in writing, the express consent of Kayema.
10. Confidentiality
10.1 Non-disclosure
All technical information, advice, know-how, drawings, designs, specifications and other information communicated or supplied by Kayema to the Supplier are confidential and shall remain the property of Kayema, and shall not without Kayema’s written consent be disclosed or shown to any third party and shall be used solely for the purpose of the Order. The existence and details of the Order shall be treated as confidential information that shall not be disclosed to any third party without the written consent of Kayema.
10.2 Return
All material supplied by Kayema, including without limitation all samples, technical information, drawings, designs, specifications, patterns, tooling dies, must be returned carriage paid where appropriate to Kayema on or before the completion of the Order.
11. Liability and Insurance
11.1 Employer’s liability insurance
If the Order requires that the Supplier sends its employees to Kayema’s premises for any purpose in connection with the Order then notwithstanding any degree of technical supervision exercised by Kayema or any instructions issued by Kayema , such employees shall remain the Supplier’s employees alone. Accordingly, it is an express condition of the Order that the Supplier effects and maintains in force for the benefit of Kayema and itself full employer’s liability insurance in respect of such employees. The Supplier shall provide Kayema with written evidence of such insurance at any time on request and shall notify Kayema in writing of any change in this insurance.
11.2 Indemnity
The Supplier shall indemnify Kayema against liability resulting from any claim or action in respect of death, illness or bodily injury to any person caused by or arising out of the Supplies or work performed by the Supplier, its employees, agents or sub-contractors under the Order and the Supplier shall further indemnify Kayema against any loss of or damage to property caused by the Supplies or by the act or default of the Supplier or such employees, agents or sub-contractors.
11.3 Insurance cover
The Supplier shall also, in respect of its liabilities arising out of or associated with the Order and the provision of Supplies thereunder, maintain insurance cover with reputable insurers for adequate public liability insurance; product liability insurance; and financial loss insurance.
11.4 Written evidence
The Supplier shall provide Kayema with written evidence of the existence of such insurance cover at any time on request, and shall notify Kayema in writing of any change in the same.
11.5 Supplier’s property
All risk of loss of or damage to any property of the Supplier or of the Supplier’s personnel while at Kayema’s premises for any reason whatsoever shall be and remain the sole risk and responsibility of the Supplier that shall indemnify Kayema against all liability in respect of all such loss or damage.
11.6 Liability
Kayema shall only be liable for indebtedness due to the Supplier arising from these Terms. Kayema shall not incur any liability hereunder unless specifically undertaken.
12. Order Amendment and Cancellation
12.1 Principal Agreement
Where the Order is placed on the Supplier by Kayema for Supplies for use of consumption upon, in terms of or as a result of an agreement entered into by Kayema with a third party (”the Principal Agreement”), then the Supplier shall be bound by the Principal Agreement insofar as it relates to the Supplier and the supply of the Supplies. All Supplies and Orders shall be subject to any amendment, increase, addition, alterations or cancellation of any supplies or order in terms of the Principal Agreement, without any obligation or liability upon Kayema to fulfil the relevant Order.
12.2 Cancellation for convenience
Kayema reserves the right to cancel any Order for any reason and without liability save for any Supplies already delivered or performed by giving the Supplier written notice at least 30 (thirty) days prior to the time for delivery or performance specified in such Order, or such other notice period as may be specified in such Order.
12.3 Cancellation for breach
Kayema reserves the right to cancel any Order summarily for any reason and without liability and without prejudice to any claim for damages or otherwise which Kayema may have against the Supplier if -
12.3.1 The Supplier commits any breach of these Terms;
12.3.2 The Supplier is placed in liquidation either voluntarily or compulsorily;
12.3.3 The Supplier or anyone in his employ or anyone acting on his behalf paying or offering to pay, giving or offering to give, any money or other present of whatsoever nature whether by way of a commission, gratuity or otherwise, or lending or offering to lend any money, or giving or offering to give any other valuable consideration to any person in employ of Kayema;
12.4 Alternative source
If Kayema cancels these Terms in accordance with clause 12.3, Kayema may purchase the Supplies in question from the most convenient alternative source and any increase in the price paid therefore over and above the price specified by the Supplier for such Supplies shall be borne by the Supplier and be paid to Kayema on demand.
13. Communications
All communications relating to these Terms and/or any Order should be addressed to the person issuing the Order, unless otherwise indicated by Kayema. The parties agree that, subject to the provisions of clause 14, they may conclude binding agreements by means of data messages (as defined in clause 14.5).
14. Admissibility of Data Messages
14.1 Principle
The parties hereby agree that:
14.1.1 A requirement in these terms that a notice, Order or document be in writing shall be satisfied if the document or information is-
14.1.1.1 In the form of a data message, and
14.1.1.2 Accessible in a manner usable for subsequent reference including, without limitation, a hard copy printout of the information concerned;
14.2 Data or data messages shall not be denied legal effect, validity or enforceability solely on the grounds that same are wholly or partly in electronic form;
14.3 Data shall not be denied legal effect, validity or enforceability solely on the grounds that it is not contained in the data message purporting to give rise to such legal effect, but is merely referred to in such data message;
14.4 No data shall be deemed to be incorporated into a data message unless such data is -
14.4.1 Referred to in a way in which a reasonable person would have noticed the reference and incorporation of such data; and
14.4.2 Such data is made accessible to the other party in a form in which it may be read, stored and retrieved by the other party on request.
14.5 Definitions
For these purposes
14.5.1 A “data message” means any information generated, sent, received or stored by electronic means and includes, without limitation, electronic mail and records.
14.5.2 A “record” means any information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
15. General
15.1 Entire agreement
This Order, together with any schedules hereto and the documents, records or attachments referred to herein or therein, constitute the sole terms applicable to the supply of the Supplies by the Supplier pursuant to this Order and no terms sought to be imposed by the Supplier shall be of any force or effect.
15.2 Interpretation
If there is a conflict in meaning between these Terms and any Order or any other correspondence relating to any Order then the meaning of these Terms shall prevail, unless expressly provided otherwise.
15.3 Variation
No amendment or modification to this agreement shall be effective unless in writing and signed by authorised signatories of both the Supplier and Kayema.
15.4 Waiver
No granting of time or forbearance shall be or be deemed to be a waiver of any term or condition of this agreement and no waiver of any breach shall operate a waiver of any continuing or subsequent breach.
15.5 Applicable Law
This agreement shall be governed and construed according to the laws of the Republic of South Africa.