AMS offers contract surface mining and exploration drilling services to the mining industry throughout West Africa.
AMS offers a full complement of contract mining services for open-cut mining throughout Africa. We specialize in running large critical mass mining contracting fleets in difficult and challenging environments. We have one of the longest running and largest fleets on the continent.
1 Interpretation
1.1 In this Contract (unless the context otherwise requires):
a) a reference to this Contract means this Contract as amended, novated, supplemented, varied or replaced from time to time.b) a reference to ‘including’, ‘includes’ or ‘include’ must be read as if it is followed by ‘(without limitation)’;c) a reference to ‘approved’ or ‘approval’ will be deemed to mean ‘approved in writing’ or ‘approval in writing’;d) where a word or an expression is defined, any other part of speech or grammatical form of that word or expression has a corresponding meaning;e) words in the singular include the plural and vice-versa;f) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any sub-ordinate legislation issued under, that legislation or legislative provision;g) a reference to any Party includes that Party’s executors, administrators, substitutes, successors and permitted assigns;h) a reference to a ‘day’, ‘month’, ‘quarter’ or ‘year’ is a reference to a calendar day, calendar month, a calendar quarter or a calendar year;i) headings are for convenience only and do not affect interpretation of this Contract;j) no rule of construction applies to the disadvantage of a Party on the basis that the Party put forward this Contract or any part of it; andk) a reference to a clause of this Contract is a clause in these Terms and Conditions, unless otherwise stated.l) Agreement has the same meaning as Contract.
2 Supply of Goods and/or Services
2.1 During the Term, the Vendor agrees to sell and the Purchaser agrees to purchase Goods and/or Services as described in and which meet the specifications
2.2 The Purchaser may provide the Vendor with an estimate of the quantity of its annual or quarterly purchases of Goods and/or Services, and a delivery schedule, for various sites.
2.3 The Parties recognise and agree that the Purchaser’s estimates shall be for planning purposes only and represent only an expression of the Purchaser’s then current estimate of its need for Goods and/or Services.
2.4 The Parties further agree that the quantity of Goods and/or Services purchased by the Purchaser may go up or down, that no variation in quantity, either up or down, shall constitute a breach hereunder and that nothing in this Contract shall prohibit the Purchaser from ordering or purchasing goods and/or services which are similar or identical to the Goods and/or Services from other suppliers.
2.5 The Purchaser may request Goods and/or Services from time to time by giving the Vendor a Purchase Order before the End Date.
2.6 The purchase arrangement between the Purchaser and the Vendor is not exclusive and the Purchaser is not required to buy any or all of its requirements for Goods and/or Services from the Vendor under these Terms and Conditions or otherwise.
2.7 In consideration for payment of the Price by the Purchaser, the Vendor must supply to the Purchaser the Goods and/or perform the Services in accordance with the Purchase Order (which incorporates these Terms and Conditions).
2.8 To the extent the Vendor’s terms and conditions are supplied with the Goods or Services (including as printed on consignment notes, invoices or other documents), those terms and conditions will be of no legal effect and will not constitute terms and conditions of the agreement between the Purchaser and the Vendor (even if any representative of the Purchaser signs those terms and conditions or annexes the terms and conditions to a Purchase Order).
2.9 The Vendor must, in supplying the Goods or performing the Services:
(a) not interfere with the Purchaser’s activities or the activities of any other person at the Delivery Address (or any other location specified by the Purchaser for delivery of the Goods and/or Services);(b) be aware of and comply with and ensure that the Vendor’s Personnel are aware of and comply with: (i) all applicable Laws; (ii) all Site Standards and Procedures, to the extent that they are applicable to the supply of the Goods or the performance of the Services by the Vendor; and (iii) all lawful directions and orders given by the Purchaser’s representative or any person having authority over a site or any person authorised by Law to give directions to the Vendor; and(c) ensure that the Vendor’s Personnel entering the Purchaser’s premises or a Site work in a safe manner and are properly qualified for, and skilled in, the performance of their tasks and are of such character and diligence so as not to prejudice: (i) safe working practices; (ii) safety and care of property; or (iii) continuity of work.
2.10 The Vendor must immediately notify the Purchaser if at any time it is or may be unable to comply with any aspect of the Purchase Order.
2.11 The Purchaser may cancel any Purchase Order in whole or in part by giving notice to the Vendor at any time and for any reason. If the Purchaser cancels the Purchase Order, the following will apply:
(a) the Purchaser must pay for any part of the Goods delivered to the Delivery Address or Services performed prior to the cancellation;(b) if the Vendor has shipped any Goods before the cancellation but the Goods have not been delivered to the Delivery Address at the time of cancellation, the Purchaser must either: (i) subject to Clause 13 Warranty Period, accept those Goods when delivered, and pay the Price for them; or (ii) return the Goods to the Vendor at the Purchaser’s expense; (c) if the Purchase Order is cancelled prior to the delivery of the Goods and/or Services being cancelled, the Vendor must not deliver cancelled Goods and/or Services or invoice the Purchaser for any costs relating to any cancelled Purchase Order (subject to sub-clause (2.11(d)); and (d) if the Goods are manufactured to the specifications of the Purchaser and the Vendor has incurred considerable expense in attempting to fulfil the cancelled Purchase Order, the Vendor may invoice the Purchaser for its actual costs and expenses incurred, provided that: (i) the Vendor must make reasonable endeavours to mitigate its costs; (ii) the Vendor must provide to the Purchaser all documentation which the Purchaser requires to verify the Vendor’s costs and expenses; (iii) any Goods and uncompleted portions of the work and materials acquired by the Vendor for incorporation into the Goods will be the property of the Purchaser; and (iv) under no circumstances will the Purchaser be liable to reimburse costs and expenses in excess of the Price for those Goods.
3 Term
3.1 Start and End Dates The obligations of the Vendor and the Purchaser under this Contract shall commence as of the Start Date and shall continue until the End Date, unless terminated earlier in accordance with the terms of this Contract.
3.2 Extension options
a) The Purchaser may, in its absolute discretion, notify the Vendor that it extends the Contract for a successive further term as mutually agreed by the Parties, each such period being an Extension Period (“Extension Period”).b) The Purchaser may exercise the option by providing written notice to the Vendor 30 days or such other period as agreed between the Parties, prior to the End Date of the Contract or as extended by any prior Extension Periods.c) The Extension Period shall be on the same terms and conditions as the Contract.d) The Vendor shall continue to perform its obligations under and in accordance with the Contract, until the earlier of expiry or termination of the Contract.
4 Delivery
4.1 The Vendor must (at its cost, unless agreed in writing with the Purchaser) deliver the Goods to the Delivery Address by the Delivery Date (unless otherwise directed by the Purchaser).
4.2 The Vendor must ensure that the Goods are suitably packed to avoid damage in transit or in storage.
4.3 Packages must be marked with the reference number on the Purchase Order, item number, destination, contents, quantity, date and method of dispatch and weight of each package.
4.4 For each delivery of Goods, the Vendor must provide the Purchaser at the time of delivery with a document in a form acceptable to the Purchaser and certified by the Vendor or its authorised representative which sets out the following information for that delivery:
a) Vendor’s name and address;b) Purchase Order number for the delivery;c) Delivery Address;d) Date of delivery;e) Description of the Goods delivered (which must match as closely as possible with the Purchase Order line item description), complete with stock number and the manufacturer’s part number;f) Quantity of Goods delivered; andg) Whether a back order exists or if the Purchase Order is considered complete.
4.5 If, for any reason, during the Term the Vendor is or may be reasonably unable or unlikely to supply a particular Good as and when required under this Contract:
a) the Vendor must: (i) notify the Purchaser with full details of the inability including the reasons, which Goods are affected, the steps it has and will take to supply the Good as soon as possible and the expected delivery date; (ii) cooperate with and, on request, assist the Purchaser to source the relevant Goods from third parties; and (iii) offer to supply substitute goods to the Purchaser on the terms of this Contract at the lowest possible cost.b) The Parties may agree in writing to extend the Delivery Date on such terms as the Parties may agree having consideration to the circumstances giving rise to the delay.
4.6 For the avoidance of doubt, the Purchaser is under no obligation to agree to purchase the substitute goods or third-party goods and the Purchaser is free to purchase the Goods or similar goods from any source other than the Vendor.
5 Vendor’s Outlets
5.1 The Purchaser may, at its option, take delivery of Goods from the Vendor’s Outlets during the Vendor’s normal business hours.
5.2 The Purchaser will inform the Vendor if the Purchaser wishes to take delivery of Goods from the Vendor’s Outlets.
6 Specifications
6.1 All Goods supplied by the Vendor to the Purchaser must comply with the Specifications.
7 Time for Performance
7.1 The Vendor must perform the Services by the Delivery Date.
8 Title and Risk
8.1 Title in the Goods passes to the Purchaser upon payment in full of the Price. Notwithstanding this, where the Goods are to be paid for on invoice, the Purchaser is entitled to use or consume the Goods or incorporate them into other goods or products at the discretion of the Purchaser, pending payment for the Goods in accordance with the terms of these Terms and Conditions.
8.2 Risk in the Goods passes to the Purchaser when the Goods are delivered to the Delivery Address and a proof of delivery notice is signed by an authorised person (unless otherwise agreed) or upon removal of the Goods from Vendor’s Outlets by the Purchaser, provided that, if this Contract specifies an Incoterm, risk in the Goods passes in accordance with that Incoterm.
8.3 Unless otherwise agreed in writing, the Vendor will be solely responsible for all risks, costs and expense of supplying and delivering the Goods to the Delivery Address or upon the point of removal of the Goods from the Vendor’s Outlets by the Purchaser.
8.4 If an Incoterm is specified in this Contract, to the extent that the terms of the Incoterm are inconsistent with the terms of this Contract, the terms of this Contract prevail.
9 Price
9.1 The Prices payable for Goods and/or Services will be determined in accordance with the Price List
9.2 The Purchaser must pay the Vendor the agreed Price for the Goods and/or Services.
9.3 The prices are fixed and firm and may not be increased (except in accordance with an agreed rise and fall, if any) without the Purchaser’s prior written approval.
9.4 Unless this Contract provides otherwise, the Price is inclusive of:
a) all charges for packaging, packing, insurance and delivery of the Goods in accordance with this Contract;b) the cost of any miscellaneous services of a kind which are commonly provided with goods of the same or a similar nature to the Goods and any miscellaneous items of a kind which are commonly used or supplied in conjunction with goods of the same or a similar nature to the Goods; c) the cost of any miscellaneous services or goods of a kind which are commonly provided with services of the same or a similar nature to the Services and any miscellaneous items or services of a kind which are commonly used or supplied in conjunction with services of the same or a similar nature to the Services; d) the Vendor’s compliance with its obligations under this Contract; and e) all Taxes (excluding VAT).
10 Taxes
10.1 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with these Terms and Conditions are exclusive of Taxes.
10.2 If Tax is imposed on any supply made under or in accordance with these Terms and Conditions, the recipient of the taxable supply must pay to the Vendor an additional amount equal to the Tax payable on or for the taxable supply subject to the recipient receiving a valid Tax Invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with these Terms and Conditions, subject to receipt of a valid Tax Invoice.
10.3 If these Terms and Conditions require a party to pay for, reimburse or contribute to any expense, loss or outgoing suffered or incurred by the other party, the amount will be reduced by an amount for which the other party is entitled to any input tax credit.
11 Invoicing
11.1 Upon delivery of the Goods and/or completion of the Services, the Vendor must provide to the Purchaser a valid Tax Invoice, which must include the information set out in clause
11.2 All Invoices provided to the Purchaser under clause 11.1 must include the following details:
a) a reference to the Purchase Order and the relevant Contract (if any) including the line item numbers on the Purchase Order and the Contract number (if any);b) a detailed description of the delivered Goods or performed Services, including the date of delivery and/or period of Services and the relevant quantity of Goods; c) an invoice number; d) the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order; e) the Delivery Address for the Goods; f) any outstanding amounts due; g) the amount of any applicable Tax; h) contact name and details of the Vendor; and i) such other information as the Purchaser may reasonably require from time to time.
11.3 Unless otherwise agreed in writing, the Purchaser will pay all invoices given by the Vendor in accordance with this clause 11 within 45 days of the end of the month in which the Tax Invoice is received by the Purchaser, except where the Purchaser disputes the invoice, in which case:
(a) the Purchaser must notify the Vendor of the amount in dispute and the reasons why the amount is disputed;(b) the Purchaser may withhold payment pending resolution of the dispute (but only to the extent a particular amount is in dispute); and(c) if the resolution of the dispute determines that the Purchaser must pay an amount to the Vendor, the Purchaser must pay that amount within 7 days of the resolution of that dispute.
11.4 The Purchaser may reduce any payment due to the Vendor under this Contract by any amount payable by the Vendor to the Purchaser under this Contract. This does not limit the Purchaser’s right to recover those amounts in other ways.
11.5 The Vendor must keep and maintain a true and correct set of records of all materials and information regarding all deliveries of Goods or performance of the Services under these Terms and Conditions and all supporting materials and information used to generate and substantiate amounts claimed for payment under these Terms and Conditions. If the Purchaser requests, the Vendor must provide copies of all relevant records to calculate and verify the amount set out in any Tax Invoice.
11.6 If a Tax Invoice incorrectly states an amount (including the type, quantity or Price of the Goods and/or Services purchased) whether before or after it has been paid, the Vendor must promptly issue an adjustment or a credit note (as applicable) to the Purchaser.
11.7 A payment made pursuant to this Contract will not be taken or construed as proof or admission that the Goods delivered or the Services performed, or any part of the Goods delivered or the Services performed, were to the satisfaction of the Purchaser but will only be taken to be payment on account.
12 Quality
12.1 The Vendor must ensure that:
a) If the Vendor gave the Purchaser a sample of the Goods or a demonstration of the Services, the Goods and/or Services are of the same nature and quality as the sample or demonstration given; b) if the Vendor showed the Purchaser a result achieved by the Services before the Purchaser entered into this Contract or issued a Purchase Order for any of those Services, the Services correspond in nature and quality with the Services that achieved that result; c) the Goods are of good merchantable quality and, unless otherwise specified in the Purchase Order, are new; and d) to the extent that the Services are design Services, the works being designed will be fit for their intended purposes as described in this Contract or the Purchase Order.
13 Warranty Period
13.1 If, during the Warranty Period, any of the Goods and/or Services are found by the Purchaser to be Defective, the Purchaser may at its option do any one or more of the following:
a) return the Defective Goods to the Vendor or reject the Defective Services, in which event the Purchaser may withhold payment not yet made in relation to Defective Goods and/or Services and receive from the Vendor a full refund for any payments made for such Defective Goods and/or Services; b) repair or make good the Defective Goods if it is necessary to do so urgently or the Vendor fails to do so within 14 days of being notified by the Purchaser of the Purchaser’s election under clause 13.2(a); c) re-perform, have re-performed or make good the Defective Services if it is necessary to do so urgently or the Vendor fails to do so within 14 days of being notified by the Purchaser of the Purchaser’s election under clause 13.2(b), in which event the Purchaser may require the Vendor to reimburse the Purchaser for any costs and expenses incurred by the Purchaser in returning Defective Goods or repairing, re-performing or making good (as the case may be) any Defective Goods and/or Services.
13.2 The Vendor must at the Purchaser’s election:
a) repair or replace or make good the Defective Goods; and b) re-perform or make good the Defective Services.
14 Returns and Surplus Goods
14.1 This clause shall apply only in relation to any Goods that are identified as “Returnable”.
14.2 The Purchaser may, at its option, return to the Vendor any unused or surplus Goods delivered under these Terms and Conditions by giving notice to the Vendor at any time within 3 months of delivery of the Goods (Surplus Goods). If the Purchaser notifies the Vendor of any Surplus Goods, the Purchaser will take reasonable steps to return Surplus Goods to the Vendor for re-stocking in a timely manner so far as it is reasonably practicable to do so.
14.3 The Vendor must:
(a) accept all Surplus Goods provided they are in substantially the same condition as when first delivered to the Purchaser and are otherwise in resaleable condition; and (b) cooperate with and provide assistance to the Purchaser to receive Surplus Goods from the Purchaser.
14.4 If the Purchaser requests, the Vendor must provide transportation for the Surplus Goods from the Delivery Address or other location nominated by the Purchaser to the Vendor’s facility from which Goods are ordinarily dispatched by road for deliveries to that Delivery Address or place (as applicable). The Purchaser will be responsible for the actual reasonable transportation costs of the Vendor for transporting the Surplus Goods under this clause.
14.5 Where possible, Surplus Goods will be exchanged for other Goods or for a credit to apply against future purchases.
14.6 No re-stocking charge will be charged for Surplus Goods.
15 Warranties
15.1 The Vendor undertakes to ensure and represents, covenants and warrants to the Purchaser that:
(a) it has and will have the right to sell and transfer title to and property in the Goods to the Purchaser; (b) it is able to pay its debts as and when they are due and payable, and no Goods are liable to a claim by a trustee in bankruptcy or a liquidator; (c) it has the necessary experience, skill, knowledge and competence to perform the Services; (d) its personnel will similarly possess the necessary experience, skill, knowledge and competence to perform the Services; (e) it will carry out all of its obligations under these Terms and Conditions with diligence and expedition; (f) the Services and the Goods will be fit for the purpose for which they are ordinarily acquired, or any other purpose notified to the Vendor in writing; (g) the Services will be performed in accordance with good, safe and workmanlike practices and generally accepted standards of professional care, skill, diligence and competence normally provided by a professional in the performance of work similar to the Services;(h) the Services will meet the standards and specifications approved by the Purchaser, will be accurate and completed, and will otherwise conform to the requirements of this Contract; (i) the Services do not and will not infringe, misappropriate or violate the trademarks, service marks, copyrights, patents, patent rights, trade secrets and other intellectual property rights of a third-party. (j) it is validly existing under the Laws of its place of incorporation or registration; (k) it has the power to enter into and perform its obligations under these Terms and Conditions and to carry out the transactions contemplated by these Terms and Conditions; (l) all Goods delivered under these Terms and Conditions will: (i) be free from all Security Interests (except for any purchase money security interest held by the Vendor); (ii) be free from defects in materials or workmanship; and (iii) conform in all other respects with the requirements of these Terms and Conditions including the relevant Purchaser Order and any Specifications.
15.2 If Vendor is providing any materials or equipment, including any equipment or materials to be made part of or incorporated into any machine, equipment, facility, plant, building or other structure, the Vendor warrants that the materials and equipment shall be new (unless otherwise specifically provided for herein); free from liens, encumbrances, or any other defects in title; free from defects in material and workmanship; and shall be in conformity with all specifications identified in this Contract or any samples, drawings and descriptions furnished by Vendor.
15.3 With respect to any warranties the Vendor has received from third party suppliers of such equipment or materials, the Vendor shall assign to the Purchaser any such warranties and provide the Purchaser with copies of warranty contracts, provided that assignment of warranties to the Purchaser shall not relieve the Vendor from the warranties given by the Vendor hereunder. The Vendor shall not take any action to modify, release, waive or otherwise discharge any such warranties without the prior written consent of the Purchaser. If the Purchaser requests, the Vendor shall enforce such warranties on behalf of and for the benefit of the Purchaser, regardless of whether the warranty has been assigned to the Purchaser.
15.4 Each party will notify the other party as soon as it becomes aware or reasonably suspects that any Goods or products delivered to the Purchaser do not comply with these Terms and Conditions (including the relevant Purchase Order).
16 Key Performance Indicators
16.1 The Vendor must comply with the agreed KPI’s, if any, in performing its obligations under this Contract.
16.2 If the Vendor fails to meet a KPI, the Purchaser may give the Vendor a notice outlining the failure (Performance Notice) and the parties will work together in good faith to formulate an improvement program to rectify the Vendor’s failure (Improvement Program). The Vendor must comply with its obligations as set out in any agreed Improvement Program.
16.3 If the Parties cannot agree on an Improvement Program within 10 Business Days of the Performance Notice or the Vendor fails to comply with the Improvement Program, the Purchaser may, by giving written notice, terminate the Contract.
16.4 This clause 16 does not limit the contract termination rights of the Purchaser under the Contract.
17 Sub-contracting
17.1 The Vendor shall not delegate, subcontract or outsource any of its duties and obligations arising under this Contract without the prior written consent of the Purchaser. No permitted delegation, subcontract, or outsourcing by the Vendor shall relieve the Vendor of any duty or obligation arising under this Contract.
18 Variation
18.1 The Purchaser may direct the Vendor in writing to perform a Variation by issuing a signed Variation notice to the Vendor.
18.2 A Variation may include increases in or additions to, reductions in or omissions from, or variations in the character or the quality of the Goods or Services (including any material or anything described in the specification (if any)).
18.3 If a Variation requires the omission of work, the Purchaser may have the omitted work carried out by others or not as it sees fit.
18.4 A Variation does not invalidate this Contract.
18.5 The Vendor may request that the Purchaser direct a Variation and the Purchaser may, in its absolute discretion, direct a Variation under clause 18.1 or elect not to direct a Variation.
18.6 Within 2 Business Days of receipt of a Variation notice or such longer time as may be set out in the notice and before carrying out the Variation, the Vendor must provide Purchaser with a proposal (Variation Proposal) providing a breakdown of the expected increase or decrease in the actual, reasonable direct costs which would be incurred by the Vendor, and the corresponding change the Vendor proposes to the Price, as a result of the Variation, together with any impact the Variation would have on the Delivery Date and explanatory supporting documentation satisfactory to Purchaser. If the Vendor fails to submit a Variation Proposal in accordance with this clause 18.6 then the Vendor will be deemed to have waived any claim it may have in connection with the Variation.
18.7 The Purchaser may direct the Vendor in writing, including following the receipt of a Variation Proposal, to discontinue or not commence carrying out a Variation.
18.8 The adjustment, if any, to the Price and the Delivery Date arising from a Variation:
(a) will be in accordance with the Variation Proposal if accepted in writing by the Purchaser; or (b) if no Variation Proposal is accepted by the Purchaser in writing, must be determined by the Purchaser to reflect the increase or decrease in the Vendor’s actual, reasonable direct costs as a result of the Variation and delay to the critical path.
19 Compliance with Laws
19.1 The Vendor must:
a) obtain and maintain, at its own cost, all approvals, permits, licences and authorisations necessary or desirable to perform its obligations under these Terms and Conditions; and b) comply with, and must ensure that the Vendor’s Personnel comply with, all Laws applicable to the performance of its obligations under these Terms and Conditions including all Laws relating to occupational health and safety, the environment, dangerous goods and other hazardous material or goods (including the design, safety, handling, packaging, labelling, transport and use of goods).
20 Indemnity
20.1 The Vendor indemnifies the Purchaser and its Related Entities and their respective directors, employees, officers and agents (Indemnified Parties) from and against any loss, liability, damage, claim, action or expense (including legal expense) which the Indemnified Parties suffer or incur as a result of any of the following:
(a) a breach of this Contract by the Vendor, including any failure to deliver Goods or Services in accordance with this Contract including any Purchase Order issued to the Vendor; (b) any warranty given by the Vendor (including under this Contract) being incorrect or misleading in any way; (c) any Wilful Misconduct or negligent act or failure to act by the Vendor or any of the Vendor’s Personnel; (d) the entry onto and the activities undertaken on and in the Site by the Vendor or the Vendor’s Personnel; or (e) the illness, injury or death of any of the Vendor’s Personnel, (Loss) except to the extent the Loss is caused by the negligent or wrongful actions or omissions of the any of the Indemnified Parties.
20.2 Notwithstanding any other provisions of this Contract, to the extent permitted by Law, and save as set out in clause 20.4, neither Party will be liable to the other Party in any circumstances for any Consequential Loss arising out of or in connection with this Contract.
20.3 To the extent permitted by Law, save as set out in clause 20.4, a Party’s liability to the other Party will be limited to the greater of:
(a) $5,000,000.00 (five million dollars); and (b) the aggregate value of the Goods and/or Services supplied by the Vendor as at the date the loss, liability, damage, claim, action or expense arises.
20.4 Nothing in clauses 20.2 or 20.3 excludes or limits a Party’s liability:
(a) in respect of the death or personal injury of any person, third party property damage or breach of third-party Intellectual Property Rights;(b) for a deliberate breach of this Contract or any Wilful Misconduct; (c) to the extent that the Vendor is required by this Contract to procure and maintain insurance in respect of that liability; or (d) under clause 20.1.
20.5 The Vendor acknowledges that entry onto the Site is at Vendor’s own risk. The Vendor will ensure that the Vendor’s Personnel are aware that they enter the Site at their own risk.
20.6 The Vendor shall have control of and be liable for all risk of loss or damage to all equipment, machinery or other property belonging to Vendor and the Vendor’s Personnel that is brought on to the Site, except to the extent that the loss or damage to such equipment, machinery or other property is caused or contributed to by the Purchaser or its directors, employees, agents or officers.
20.7 The Vendor’s indemnification obligations will not be affected by any insurance the Vendor is required to maintain pursuant to the terms of this Contract.
21 Insurance
21.1 The Vendor and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Vendor believes to be prudent and customary in the businesses in which the Vendor and its subsidiaries are engaged.
21.2 Neither the Vendor, or any subsidiary has been refused any insurance coverage sought or applied for, or has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Vendor and its subsidiaries, taken as a whole.
22 Termination
22.1 If a Party breaches or repudiates this Contract, nothing in this clause 22 prejudices the right of the other Party to recover damages or exercise any other right under this Contract or under any applicable Law.
22.2 The Purchaser may terminate this Contract by notice to the Vendor if:
a) the Vendor fails to supply Goods or Services in accordance with these Terms and Conditions, and does not remedy such failure within 7 days (or such other period as may be agreed by the Parties in writing) of the Purchaser’s notice to the Vendor to remedy such failure; b) the Vendor fails to comply with any other obligation under the Contract, and does not remedy such failure within 7 days (or such other period as may be agreed by the Parties in writing) of the Purchaser’s notice to the Vendor to remedy such failure; c) the Vendor fails to comply with the Purchaser’s reasonable direction given in respect of any Delivery Address and its surroundings (including a direction by the Purchaser regarding access, conduct and safety at Site), and does not remedy such failure within 7 days of the Purchaser’s notice to the Vendor to remedy such failure; d) an Insolvency Event occurs in respect of the Vendor; or e) an event of Force Majeure occurs and continues for 45 days.
22.3 The Vendor may terminate this Contract immediately by notice to the Purchaser if the Purchaser fails to pay an undisputed amount when due under the Contract and fails to remedy such failure within 7 days (or such other period as may be agreed by the Parties in writing) of the Vendor’s notice to the Purchaser to remedy such failure, or if an Insolvency Event occurs in respect of the Purchaser.
22.4 The Purchaser may terminate this Contract for any reason upon giving thirty (30) days’ written notice to the Vendor.
22.5 When this Contract is terminated pursuant to clause 22.2 or 22.3 or 22.4, the Vendor must:
a) stop work; b) not place any further orders, not enter into any further contracts or other binding arrangements in respect of any Goods or Services; c) if the Purchaser so directs in writing, remove from the Purchaser’s premises all of the Vendor’s Personnel and its plant and equipment, if any, as soon as reasonably practicable; and d) do its best to minimise the cost to the Parties of ending this Contract.
22.6 When this Contract is terminated pursuant to clause 22.3 or 22.4, the Vendor may recover any amounts due under clause 2.11(d). The Vendor does not have any other claim for damages, loss, expenses, or costs, including for any Consequential Loss, arising out of or on account of the termination of this Contract.
22.7 Termination is without prejudice to the accrued rights and liabilities of the parties.
23 Technical Support
23.1 Where the Contract specifically requires, the Vendor agrees to make available, at no charge to the Purchaser, technical personnel and support as reasonably required by the Purchaser during the Term to assist in any or all areas of technical service and technical information relating to Goods. The Vendor acknowledges that, without limitation, this may include remote travel and visitations to sites for its personnel.
24 Intellectual Property Rights
24.1 The Vendor agrees to grant to the Purchaser an unrestricted, irrevocable, royalty-free and nonexclusive license (capable of being sub-licenced) to use any Intellectual Property Rights which may be used by the Vendor in connection with the supply of, or which is incorporated in, any Goods and/or Services or other items delivered under these Terms and Conditions for the purpose of enabling the Purchaser to use, repair, adapt or modify, and get the full benefit and value of, the Goods and/or Services, and warrants that it is entitled to use and deal with such intellectual property on this basis.
24.2 The Vendor indemnifies the Purchaser from and against any action, claim, suit, demand or liability arising out of or in respect of any breach or alleged breach of any third party’s intellectual property rights relating to the Goods and/or Services or other items supplied or provided under these Terms and Conditions or relating to the Purchaser’s use of Goods or Services or other items supplied in accordance with these Terms and Conditions.
25 Force Majeure
25.1 Neither party will be liable for any delay or failure to perform its obligations under these Terms and Conditions to the extent caused by Force Majeure, provided that party has complied with this clause 25. This will not affect a party’s obligation to pay an amount when due under these Terms and Conditions.
25.2 If a party is affected, or likely to be affected, by Force Majeure, the party must immediately notify the other party with full details of the Force Majeure including the commencement date, the impact and expected duration of Force Majeure and the steps the party affected has and will take to overcome the Force Majeure. A party affected by Force Majeure must keep the other party fully informed about the Force Majeure and its actual or likely impact on these Terms and Conditions for so long as it is affected by Force Majeure.
25.3 A party claiming Force Majeure must use its best endeavours to remove, overcome or minimize Force Majeure as quickly as possible. A party must give notice to the other party as soon as it ceases to be affected by Force Majeure and must resume performing its obligations under these Terms and Conditions with the least possible delay.
26 Confidentiality and Announcements
26.1 Each Party must, until 2 years after the end of the Term, keep confidential and not disclose, and ensure that its employees, agents and subcontractors keep confidential and not disclose, to any person the terms of these Terms and Conditions and any information of a confidential nature accessed or obtained from the other Party or as a result of or in connection with these Terms and Conditions, except that a Party may disclose information to the extent reasonably required to perform its obligations under these Terms and Conditions or comply with the mandatory requirements of an applicable Law.
26.2 The Vendor must obtain the Purchaser’s approval before making any statement, announcement, release or comment to any person in relation to these Terms and Conditions, the supply of Goods and/or Services to the Purchaser or the Purchaser’s activities (including photographs, advertisements, testimonials, letter of commendations or approval, or any other document or written matter which might imply the Purchaser’s approval of the products, actions or performance of the Vendor).
27 Disputes
27.1 If any dispute arises under or in connection with these Terms and Conditions (Dispute), either party may give notice to the other party with details of the Dispute.
27.2 Within 14 Business Days of receiving notice of a Dispute, the senior managers of the Parties (with authority to resolve the Dispute) must meet and attempt to resolve the Dispute.
27.3 If the Dispute is unable to be resolved within 14 Business Days, the parties will endeavour in good faith to settle the Dispute at least once by a meeting between the managing directors or chief executive officers of the Parties (or their delegates).
27.4 If the Dispute is not settled by discussion, then such Dispute shall be finally settled by arbitration conducted in accordance with the United National Commission on International Rate Law (“UNCITRAL”) rules for arbitration.
27.5 The Parties must continue to perform their respective obligations under these Terms and Conditions, pending the resolution of any Dispute.
27.6 Nothing in this clause 27 is to be taken as preventing any party from seeking interlocutory relief in respect of any Dispute.
28 Ethics
28.1 Export Controls:
(a) The Vendor, in connection with performing its obligations under this Contract, must comply with Applicable Trade Controls Laws (including rules and regulations of all Government Authorities). The Vendor must notify the Purchaser if anything it is required to do under this Contract would result in the Vendor being in contravention of such Laws and, provided notice is given, is not required to take any action, or refrain from taking any action, where doing so would be in contravention of such Laws. (b) The Vendor must not, without Purchaser’s prior written consent, supply to the Purchaser any Goods or Services sourced in whole or in part from a Sanctioned Country or Territory; from Sanctioned Country or Territory entities, residents, or governmental entities; or from a Sanctioned Party. (c) The Vendor represents and warrants on a continuing basis that it: (i) is not organized under the Laws of, or ordinarily resident in, a Sanctioned Country or Territory; (ii) is not part of the government of a Sanctioned Country or Territory, or owned or controlled by the government of a Sanctioned Country or Territory; and (iii) is not a Sanctioned Party.(d) Upon request of the Purchaser, the Vendor will provide to the Purchaser the export/import jurisdiction and classification of items the Vendor furnishes to the Purchaser in connection with performing the Contract, together with all relevant supporting documents.
28.2 Anti-slavery and Human Trafficking Without limiting any other provision of this Contract, the Vendor must:
a) not engage in (and take reasonable steps to ensure that in the Vendor’s operations and supply chains there are not) any activities, practices or conduct that would constitute an offence under anti-slavery and human trafficking Laws, including Modern Slavery Laws; b) maintain, keep up to date and enforce its own policies and procedures to ensure its compliance with all Modern Slavery Laws and, if requested by Purchaser, provide it with copies of such policies and procedures; c) notify the Purchaser as soon as reasonably practicable after it becomes aware of any actual or suspected activity, practice or conduct of the type referred to in subclause 28(2)(a) above; d) provide the Purchaser with all information and records reasonably requested by the Purchaser, in order for it to comply with its reporting obligations under Modern Slavery Laws, which may include information and records regarding:
(i) potential modern slavery risks in the Vendor’s operations and supply chains; (ii) any actions taken by the Vendor to address any modern slavery risks (including due diligence and remediation processes); and (iii) the effectiveness of such actions, and provide such information and records to Purchaser within 30 days of the Purchaser’s request; and
28.3 Anti-Bribery and Anti-Corruption Obligations
(a) The Purchaser is committed to operating in a manner consistent with the laws of the jurisdictions in which it operates, including those laws relating to anti-bribery and corruption, including but not limited to the Anti-Bribery & Anti-Corruption Laws. The ABAC Policy expressly prohibits corrupt acts, including Prohibited Acts, in connection with the Purchaser’s business operations and any of its Associated Persons. (b) The Vendor and the Purchaser must: (i) not commit a Prohibited Act in connection with the Contract; and (ii) take reasonable steps to ensure that any of its Associated Persons will not commit a Prohibited Act in connection with the Contract, (the Anti-Corruption Obligations). (c) The Vendor either: (i) has in place adequate policies and procedures to ensure compliance with its Anti-Corruption Obligations, which must be disclosed to the Purchaser upon request; or (ii) agrees that it has received a copy of and understands the ABAC Policy and will comply with the principles of the ABAC Policy in all respects, in connection with this Contract.(d) The Vendor represents and warrants that it is not aware of: (i) any past breach of Anti-Bribery & Anti-Corruption Laws by it or any of its Associated Persons; (ii) any allegations of a breach of Anti-Bribery & Anti-Corruption Laws by it or any of its Associated Persons; or (iii) any facts or circumstances which could reasonably be considered to constitute a potential breach of Anti-Bribery & Anti-Corruption Laws by it or any of its Associated Persons. (e) The Vendor represents and warrants that it has not: (i) been the subject of an investigation into its compliance with Anti-Bribery & Anti-Corruption Laws in the past three years; (ii) been convicted of any offence in connection with any Anti-Bribery & Anti-Corruption Laws; nor (iii) entered into any settlement in connection with any alleged breach of any Anti-Bribery & Anti-Corruption Laws. (f) The Vendor represents and warrants that it has notified the Purchaser of any conduct that may contravene clause 28.3(d) or 28.3(e) irrespective of how insignificant it may seem.
28.4 Notification obligations
a) The Vendor agrees that it will immediately notify the Purchaser in writing if: (i) it becomes aware or suspects that any of the representations and warranties in clause 28.3 are false; (ii) it breaches its obligations under this clause 28; or (iii) it becomes aware that a breach of this clause 28 may have occurred, by an Associated Person.
b) The notification under clause 28.4(a) must set out: (i) adequate particulars of the breach (or suspected breach); and (ii) ongoing steps the Vendor is taking to investigate the breach or potential breach.
c) Investigation and audit rightsIf the Vendor makes a notification under clause 28.4, or if the Purchaser has a reasonable belief that the Vendor or any of its Associated Persons may have breached the Anti-Corruption Obligations of the provisions of this clause 28, the Vendor must: (i) respond promptly to the Purchaser’s reasonable enquiries and cooperate with the Purchaser in connection with its investigation into the Vendor’s or Associated Person’s compliance with this clause; and (ii) allow the Purchaser reasonable access to its books, records and any other relevant documentation for the purpose of ensuring compliance with clause 28.
28.5 Public Officials Except as otherwise disclosed in writing to the Purchaser, as at the date of execution of this Contract and during the Term, no Public Official:
a) is/will become an Associated Person of the Vendor; b) is/will become involved in the management or form part of the board or other governing authority of the Vendor; or c) holds/will hold a controlling interest in the Vendor.
28.6 General
a) The Vendor must ensure that the Vendor’s Personnel comply with this clause 28 and that the Vendor’s contracts with subcontractors contain equivalent provisions to this clause 28. b) If the Purchaser reasonably believes that the Vendor is in breach of clause 28, including an event arising that is required to be notified by the Vendor under this clause, it may immediately and without advance notice to the Vendor: (i) terminate the Contract; and/or (ii) suspend payment or supply under this Contract.c) The rights under this clause are in addition to any other rights the Purchaser may have under this document on the occurrence of a Vendor default.
29 Notices
29.1 A notice, demand, document or other communication relating to these Terms and Conditions must be in writing in English, signed by the sender or its duly authorised representative and may be delivered by prepaid post, by hand, by facsimile or email to a party and marked for the attention of the person identified in the Purchase Order, or if the recipient has notified otherwise, then marked for attention in the way last notified.
29.2 A notice or other communication is effective: a) if delivered by hand, when delivered; b) if delivered by post, 3 days after posting (or 7 days after posting if sent to or from a place outside Ghana); c) if sent by fax, at the time shown in the transmission report as the time that the whole fax was sent; and d) if sent by email, at the time when successfully sent.
29.3 A notice or other communication received after 5 pm in the place of receipt or on a non-Business Day is taken to be received at 9 am on the next Business Day.
30 Assignment or Novation
30.1 The Vendor must not assign or novate this Contract or any right under this Contract without the prior written consent of the Purchaser.
30.2 The Purchaser may assign or novate this Contract or any right under this Contract without the consent of the Vendor.
31 Waiver
31.1 A provision of these Terms and Conditions or a right created under it may not be waived or varied except in writing, signed by the party or parties to be bound.
31.2 The non-exercise of, or a delay in exercising, any power or right of a Party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right by a Party.
32 Governing Law
32.1 These Terms and Conditions shall be construed and applied in accordance with and governed by the laws of the country where the Goods are supplied, and the Services performed.
33 Counterparts
33.1 This Contract may be signed in any number of counterparts. All counterparts together make one instrument.
34 Severability
34.1 Part or all of any provision of this Contract that is illegal or unenforceable may be severed from this Contract and the remaining provisions of this Contract shall continue in force.
35 Survival of Obligations
35.1 Termination of this Contract will not affect any clause of this Contract which is expressly or by implication intended to come into force or continue after termination.
36 Entire agreement
36.1 To the extent permitted by Law, this Contract constitutes the entire agreement between the Parties in respect of its subject matter and supersedes all prior agreements, quotation requests, understandings, representations, warranties, promises, statements, negotiations, letters and documents in respect of its subject matter (if any) made or give prior to the date of this Contract.
Definitions
