Herewith the information as requested in support of our application for Credit facilities:

Transcription

1 TO: Herewith the information as requested in support of our application for Credit facilities: Company name : ABB South Africa (Pty) Ltd Postal Address : Private Bag X10004, Edenvale Street Address : 2 Lake Road, Longemeadow Business Estate North Modderfontein Telephone no : (010) ABB 123 Fax no : (011) Registration no : 1965 / / 07 VAT Registration no : DIRECTORS COMPANY POSTAL ADDRESS J.D.R. Da Matta C.M.S Pone ABB South Africa (Pty) Ltd ABB South Africa (Pty) Ltd Private Bag X10004 Edenvale Private Bag X10004 Edenvale P. Mohlala ABB South Africa (Pty) Ltd Private Bag X10004 Edenvale Per Wanland D.A. Jones ABB South Africa (Pty) Ltd ABB South Africa (Pty) Ltd Private Bag X10004 Edenvale Private Bag X10004 Edenvale L. Mojela WIP Capital Number 7 Po Box Houghton 2041 G. Mthethwa WIP Capital Number 7 Po Box Houghton 2041

2 Shareholding for ABB South Africa Pty (Ltd): Name Identity Number % ABB Asea Brown Boveri Limited CH % Wipcapital Number seven 1999/015399/07 20% BANKER : Standard Bank, Sandton ABB Main Account Account no Branch code AUDITORS : Ernst & Young INSURANCE : Marsh TRADE REFERENCES : Danzas Global Forwarding Sheetech Current Electric CREDIT LIMIT REQUIRED. NOTE: Contractual terms are regulated by ABB South Africa (Pty) Ltd Official order placed and not by the Suppliers General Terms and Conditions. No service or goods may be supplied to ABB South Africa (Pty) Ltd without an official order. Approved by: Bobby Barua General Counsel Neels de Jager Country Supply Chain Manager

3 1. DEFINITIONS 1.1. PURCHASER: ABB South Africa (Pty) Ltd (Registration No. 1965/002429/07) SELLER: The party upon whom the ORDER is placed WORKS: The materials, products and / or services specified in the ORDER, to be supplied and / or performed by the SELLER on behalf of the PURCHASER pursuant to the ORDER. ORDER: The ORDER shall consist of the PURCHASER S official ORDER form, and such plans, specifications, drawings and annexures referred to in or attached to the ORDER, these GENERAL CONDITIONS OF PURCHASE, such supplementary Conditions of Contract applicable to specific types of contract as may be attached to the ORDER, and only such other terms and conditions as may be specifically agreed to in writing between the parties PARTIES: This shall mean the SELLER and the PURCHASER. 2. PLACEMENT OF ORDER 2.1 Any contract between the PARTIES shall be conditional on the issue by the PURCHASER of the PURCHASER S official ORDER, issued by a duly authorized representative of the PURCHASER. Failing issue of the official ORDER duly signed by the PURCHASER, there shall be no contract between the PARTIES. 2.2 The ORDER shall constitute the entire contract between the parties, and any terms and conditions forming part of the SELLER S tender or other documentation not referred to in the ORDER, shall not form part of the contract between the PARTIES and shall be of no force and effect. 2.3 By virtue of tendering, the SELLER shall be deemed to have satisfied itself regarding all the terms and conditions relating to the ORDER, and shall at all times comply with the manifest intent of the ORDER. 2.4 The submission of a tender by the SELLER, shall, unless the contrary is clearly indicated in the SELLER S tender and confirmed in the ORDER, be deemed to constitute acceptance by the SELLER of these General Conditions of Purchase. The mere submission of a tender containing the SELLER S standard terms and conditions shall not constitute a clear indication as required by this clause. It is specifically recorded that, insofar as the SELLER S Standard Terms and Conditions differ from these GENERAL TERMS AND CONDITIONS OF PURCHASE, then, and in such circumstances, these GENERAL CONDITIONS OF PURCHASE shall govern the relationship between the PARTIES. 2.5 The SELLER shall acknowledge receipt and confirm the Delivery Date of the ORDER in writing, per facsimile or registered post to the address of the PURCHASER as set out in this document, ALTERNATIVELY, per facsimile Such written acknowledgement of the ORDER, or failure to acknowledge receipt of the ORDER within 14 days, or commencement of performance in terms of the ORDER, shall be deemed to constitute acknowledgement of receipt of the ORDER and all of the terms and conditions herein contained. 3. NATURE AND SCOPE 3.1 The SELLER shall execute the works strictly in accordance with the ORDER and shall not deviate there from without the written instructions of the PURCHASER. 3.2 In the event that the WORKS forming the subject matter of the ORDER are required by the PURCHASER for incorporation into works for or delivery to a third party in terms of a separate contract, the terms and conditions of the contract between the PURCHASER and such third party (a copy of which shall be made available on request) shall be binding as between the SELLER and

4 the PURCHASER mutatis mutandis provided that these GENERAL CONDITIONS OF PURCHASE shall take precedence in the event of a conflict between these and the terms and conditions of a separate contract. invoice in respect of the WORKS, reaches the PURCHASER before the 25th day of the said month. 3.3 The PURCHASER shall be entitled, by notice in writing, to add, omit or otherwise vary the nature and scope of the ORDER, and the SELLER shall be bound to give effect to such additions, omissions or alterations as if they had been specified in the ORDER, and the nature and scope of the ORDER shall thereupon be deemed to have been amended accordingly. 3.4 If any such notice in terms of Clause 3.3 shall affect the Purchase Price, Delivery Date or any other obligations of the SELLER, the SELLER shall notify the PURCHASER thereof in writing per registered post or facsimile or e- mail within 7 days of receipt of such notice and before compliance therewith. The PURCHASER shall be entitled either to withdraw such notice or to record in writing such amendments to the PURCHASE PRICE, DELIVERY DATE or other obligations as may be reasonable in the circumstances. 4. PRICE AND CONDITIONS OF PAYMENT 4.1 Unless otherwise specifically stipulated in the ORDER, the price to be paid by the PURCHASER to the SELLER in terms of the ORDER shall cover all the SELLER S obligations in terms of the ORDER and shall be fixed and not subject to escalation. The PURCHASE PRICE shall be inclusive of all taxes, customs duties, clearance and other charges, and the costs of packing, delivery, off loading and insurance, unless otherwise stipulated in the delivery terms agreed for the order. 4.2 Unless otherwise stated in the ORDER or by prior agreement on payment terms, the PURCHASER shall pay to the SELLER the PURCHASE PRICE, within 60 days after the last day of the calender month in which the WORKS are delivered to site and accepted by the PURCHASER, provided that the SELLER S valid Tax 4.3 WORKS delivered prior to the DELIVERY DATE shall for the purpose of the Contract, including the CONDITIONS OF PAYMENT, be deemed to have been delivered on the DELIVERY DATE. 4.4 Any claims for extra work etc., or for adjustment of the PURCHASE PRICE pursuant to such escalation formula as may have been agreed to in the ORDER, shall be forfeited by the SELLER unless submitted to the PURCHASER, together with such supporting documentary evidence as may be require, not later than 90 days after the DELIVERY DATE. 5. EXECUTION, COMPLETION AND DELIVERY 5.1 The due date for execution, completion and delivery (the DELIVERY DATE ) of the WORKS, shall be the date specified in the ORDER, provided that if no date is stated, the DELIVERY DATE shall be deemed to be a reasonable time after the date of the ORDER, and provided further that should the ORDER be in respect of Goods ex stock, and if no DELIVERY DATE is specified in the ORDER, the DELIVERY DATE shall be deemed to be no later than 7 days after the date or the ORDER. 5.2 Timeous execution, completion and delivery is material to the ORDER, and should execution, completion or delivery be delayed beyond the DELIVERY DATE, the PURCHASER shall be entitled to recover penalties for delay, at the rate of 1% (one per cent) of the PURCHASE PRICE (as varied in accordance with the ORDER) per week or part thereof of delay to a maximum penalty of 5% (five per cent) of the PURCHASE PRICE.

5 Should the PURCHASER have reasonable grounds for believing that the SELLER will be unable to execute, complete or deliver the WORKS on or before the DELIVERY DATE, the PURCHASER may alternatively elect at it s sole option and without prejudice to any of it s rights, to cancel the ORDER in whole or in part and to recover damages. 7. INSPECTION 7.1 The PURCHASER shall at all reasonable times, both prior to and upon the DELIVERY DATE, have the right to inspect the WORKS, and shall be entitled to reject any WORKS that do not conform to the ORDER. 5.3 The SELLER shall be responsible for the adequate and secure packaging and other necessary protection of the WORKS, and unless otherwise stated in the ORDER, packing cases and other material shall become property of the PURCHASER. 5.4 Unless otherwise stated In the ORDER, the WORKS shall be delivered to the PURCHASER at the cost and risk of the SELLER and at an address to be designated by the PURCHASER in writing. 5.5 Unless agreed to in writing by the PURCHASER, the delivery of the WORKS shall be effected delivered duty paid (DDP Incoterms 2000) at the DELIVERY ADDRESS as detailed in the ORDER. 6. OWNERSHIP 6.1 The ownership of the WORKS shall pass to the PURCHASER upon delivery thereof to the PURCHASER. The PURCHASER shall be entitled, at the PURCHASER S election, to require the SELLER, before effecting any payments to the SELLER that the SELLER provides the PURCHASER with a Certificate signed by the SELLER S Sub Suppliers, confirming that ownership in and to any such sub supplies has been transferred. 7.2 The inspection by the PURCHASER OF ANY WORKS shall be for the benefit of the PURCHASER only, and shall not relieve the SELLER of any of his obligations in terms of the ORDER, and the SELLER shall have no right to rely on the failure of the PURCHASER to identify defects during such inspection. 7.3 Notwithstanding acceptance by the PURCHASER of the WORKS upon delivery thereof, the WORKS shall remain liable to rejection in terms of Clause 8 hereof, if subsequently found not to conform to the ORDER. 7.4 Rejected WORKS will be held at the risk and expense of the SELLER, and unless otherwise directed by the PURCHASER shall be replaced, at the sole expense of the SELLER, by WORKS that conform to the ORDER. 8. SELLER S LIABLITY 8.1 Liability for defects The SELLER warrants that the WORKS will conform in all respects to the ORDER, and such other requirements as can reasonably be inferred therefore, and shall be of the best quality and description and suitable for the purposes intended. 6.2 In the event of any advance payment, ownership of the WORKS, to the extent that they exist, or may exist in the future, shall pass progressively to the PURCHASER against such advance payment Should the WORKS manifest any defects, (being any non-conformity with the undertaking given in Clause hereof),

6 either prior to, or within a period of 12 months SELLER until delivered to the point of delivery specified from the DELIVERY DATE, or 12 months from and until accepted by the PURCHASER or it s designated agent the date that the WORKS are first used for the purposed intended (whichever is the later), the SELLER shall, as requested to do so by the PURCHASER and at the sole cost and expense of the SELLER, repair, replace or re-execute the defective WORKS, and shall also be liable for all other costs, damages or expenses suffered by the PURCHASER as a result of such defect Should the SELLER fail to fulfill its obligations in terms of Clause above, the PURCHASER shall be entitled, at the risk and expense of the SELLER, and without prejudice to its other rights in terms of the ORDER or at law, to undertake the repair replacement or re-execution of the WORKS, or to have such repairs, replacement or reexecution effected by a third party, and to recover the costs thereof and any other damages occasioned thereby from the SELLER The obligations of the SELLER in terms of this Clause 8.1, in respect of all repaired, replaced or re-executed WORKS, be extended for a further period of 12 months (or such other period as may have been agreed in writing in terms of Clause above), from the date of completion of such repair, replacement or reexecution. 8.2 Liability for Loss, Accidents or Damage WORKS shall be and shall remain at the sole risk of the The SELLER undertakes that, until delivery to and acceptance by the PURCHASER, the WORKS shall be fully insured against any loss, accidents or damage whatever nature as may occur to such WORKS, and that the interest of the PURCHASER will be noted on the relevant insurance policies The SELLER shall indemnify and hold harmless the PURCHASER against any loss, accidents, damage, injury or death as may occur to or be sustained by any persons or property (including the WORKS) during or arising out of the execution of the WORKS, and undertakes that the SELLER S risks in this regard will be adequately insured in terms of (without limitation) appropriate Workmen s Compensation Insurance, Public Liability Insurance Cover, Common law Liability Cover, and Contractor s All Risk Insurance Cover. 8.3 Liability in Respect of Patents, Trademarks, etc The SELLER warrants that the WORKS shall not infringe any Patents, Trademarks or other industrial property rights, and shall indemnify and hold harmless the PURCHASER against any or all claims lodged against the PURCHASER alleging the infringement of such Patents, Trademarks or other intellectual property rights The SELLER shall be responsible for payment of all royalties or other charges arising out of the incorporation into the WORKS of any items protected by Patent, Trademark or other intellectual property rights The SELLER shall keep CONFIDENTIAL and shall not use for any other purpose than the

7 ORDER, any and all plans, specifications, drawings, know how or other information supplied by the PURCHASER in terms of the ORDER, and shall indemnify the PURCHASER against any loss suffered by the PURCHASER as a result of a breach of this undertaking. All such documents and information shall be returned to the PURCHASER upon request Liability in respect of insurance shall be agreed upon by the Parties prior to the order being placed. 9. SELLER S LIABILITY 9.1 The SELLER s total and aggregate liability (whether due to negligence, default or otherwise) to the PURCHASER under this Agreement, and any associated agreements or tenders connected to this Agreement whether oral or in writing, shall not exceed 100% (One hundred percent) of the total PURCHASE PRICE of the ORDER. 9.2 Notwithstanding anything to the contrary contained elsewhere in this Agreement or any associated agreements or tenders arising therefrom, ABB shall not be liable for any indirect or consequential damages or losses such as but not limited to loss of revenue, loss of use, loss of power, costs of capital or costs of replacement power The SELLER shall also ensure that all guarantees or other undertakings given by the Sub-Contractor are transferable to the PURCHASER, and warrants that such guarantees will, at the request of the PURCHASER, be transferred to the PURCHASER In the event that the ORDER is terminated for any 11. FORCE MAJEURE reason, the PURCHASER shall, without prejudice to any of its rights in terms of this Agreement or at Law, have the right to enter into further Contracts with the Sub-Contractors, or to enforce such Contracts already in existence and in these circumstances, the SELLER authorizes the PURCHASER to act as aforesaid and cedes, assigns and transfers its rights in the particular Sub-Contracts to the PURCHASER Save to the extent that such liability is covered in terms of appropriate insurance cover, neither party shall be liable to the other for inability to perform or delayed performance in terms of the ORDER should such inability or delay arise from any cause beyond the reasonable control of such party, provided that the existence or happening of such cause has been drawn to the attention of the other party within a reasonable time of occurrence of such cause (hereinafter referred to as a Force Majeure event ). 10. ASSIGNMENT AND SUB-CONTRACTORS 10.1 The SELLER shall not, without the consent of the PURCHASER, cede, assign or otherwise transfer the ORDER or any part thereof, to any third party The SELLER shall at all times remain fully responsible for the performance of any Sub-Contractor, and shall ensure that the Sub-Contractor is bound and obliged to the SELLER in the same way, mutatis mutandis as provided herein For the purposes of this clause a Force Majeure event shall, without limitation to the generality of the aforegoing, be deemed to include (but not limited to) fire, flood, earthquake, lightning, drought or other natural disasters; explosions, theft, war (whether declared or not), invasion, acts of foreign enemies, hostilities, riot, civil insurrection; act of local or national government, martial law or any other cause beyond the reasonable control of the party affected but excludes strikes or other employee disturbances.

8 11.3 The party affected by a Force Majeure event shall consultation, without involving any third parties, give prompt written notice by registered post or use their best endeavours to resolve the dispute. facsimile to the other party of the commencement and termination of such Force Majeure event on 13.2 In the event that the dispute continues to remain which such party wishes to rely in terms of this clause. The affected party shall be entitled to a reasonable extension of time as a result of such event In the event of a Force Majeure event or events causing a delay in excess of 90 (ninety) days, either Party shall have the right to terminate this Contract on reasonable notice to the other Party of at least 15 Business days. 12. BREACH AND TERMINATION Should either party be in breach of any material obligations imposed in terms of the ORDER, (it being recorded that the obligations of the SELLER to deliver the WORKS timeously and to execute the WORKS strictly in accordance with the ORDER shall be deemed to be material obligations), or commit an act of insolvency (as defined in the Insolvency Act, 24 of 1936) and fail to remedy such breach within 14 (fourteen) days of written notice per registered post or facsimile or of such breach from the nondefaulting party, the non-defaulting party shall be entitled, without prejudice to such other rights as such non-defaulting party may have in terms of the ORDER or at law, to cancel the ORDER, and to recover such damages as it may have sustained as a result thereof, whether by separate action or by retention / set-off of any moneys otherwise due by the PURCHASER to the SELLER. The Purchaser shall be entitled to terminate the Contract, at any time for the Purchaser s convenience, by giving notice of such termination to the SELLER. The termination shall take effect 28 days after the date on which the SELLER receives this notice. 13. DISPUTES AND GOVERNING LAW unresolved for a period of 14 working days thereafter, either Party shall be entitled to refer the matter to Arbitration. The Parties shall thereafter agree on the Arbitrator within a further 7 working days, and failing agreement, the Arbitrator shall be An auditor of no less than 10 years standing nominated at the request of either Party by the president for the time being of the Southern African Institute of Chartered Accountants, Northern Region, if the arbitration relates primarily to a financial matter; or A commercial attorney/advocate of no less than 10 years standing on the panel of arbitrators of the Arbitration Foundation of Southern Africa (AFSA) nominated at the request of either Party by the Registrar of AFSA for the time being, if the arbitration relates to a legal matter; or An independent expert in the relevant field of no less than 10 years standing nominated at the request of either Party by the 13.1The Parties agree that in the event of a dispute arising under, in connection with or in relation to the Contract, both Parties shall through mutual

9 GENERAL CONDITIONS OF PURCHASE Registrar of AFSA for the time 13.7 The provisions of this arbitration clause being, if the arbitration relates to shall not preclude either Party from access to any other matter. an appropriate court of law for interim and/or Should the matter be a combination of issues the Registrar of AFSA for the time being, shall appoint a suitably qualified person to adjudicate on the matter. Should such Registrar be unable to find a suitably qualified person then by agreement between the parties (whose consent shall not be unreasonably withheld) the Registrar shall appoint three arbitrators to adjudicate on the matter The arbitration shall be governed by the Arbitration Act 42 of 1965, as amended and shall Take place in accordance with the Rules of AFSA. urgent relief, including an interdict, mandamus or order for specific performance The direct costs associated with the arbitration hearing shall be borne by the Party who was substantially successful during such hearing. Should there be a dispute as to which party was substantially successful the arbitrator or arbitrators (as the case may be) shall determine this during his or her or their judgement. In respect of all other (indirect) costs each Party shall bear its own costs The provisions of this clause Disputes and Governing Law shall survive any termination of this Agreement The arbitration hearing, and all records pertaining to the hearing, shall be subject to confidentiality and held in private chambers The parties agree that the laws of the Republic of South Africa shall govern this Agreement The Arbitrator s decision shall be final and binding upon the Parties and may be made an Order of any competent court. For the avoidance of doubt, any interim order or the final judgement of the arbitrator or arbitrators (as the case may be) is not subject to a right of appeal. 14. WAIVER, SEVERANCE AND WHOLE AGREEMENT 14.1 No act of relaxation, indulgence or grace on the part of the PURCHASER shall in any way operate as or be deemed to constitute a waiver by the PURCHASER of any of its rights in terms of the ORDER or a novation thereof The Arbitration hearing shall be conducted in private and in the English language and the Arbitrator shall be required to furnish a written judgement explaining his or her reasoning and an order. The written judgement and order shall not be made publicly available If any provision of this Agreement (or part of a provision) is found by any arbitration court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid,

10 enforceable or legal if some part of it were deleted, illegal behaviour involving ABB, its people or its the provision shall apply with whatever modification assets. As a start the SELLER should raise such is necessary to give effect to the commercial intention of the Parties This Agreement contains the entire agreement between the Parties, supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover and no Party shall be bound by any undertakings, representations or warranties not recorded therein. 15. FUTURE CONTRACTS It is the intention of the PURCHASER that these GENERAL CONDITIONS OF PURCHASE (as they may be amended from time to time by the PURCHASER) shall apply to any future oral or written contract for the supply of goods and / or services by the SELLER to the PURCHASER, save to the extent that these General Conditions are in any future contracts specifically varied or excluded or are inconsistent with what is expressly agreed in any such future contract. 16. COMPLIANCE WITH ANTI-BRIBERY AND OTHER GENERAL LAWS AND ABB CODE OF CONDUCT 16.1 ABB is committed to sound ethical and legal business practices consistent with local laws and the ABB Code of Conduct, a copy of which has been provided to the SELLER. ABB expects a similar standard of ethical conduct from the SELLER in all dealings covered under this Agreement. In particular, the SELLER shall not promise, offer or accept any bribes (in contravention of applicable laws or the ABB Code of Conduct) to or from another person where the intention or perception may be that a benefit is being given or received that will influence the outcome of a decision or a process involving any dealings covered under this Agreement. concerns with management. Should it be inappropriate to raise such matters with management for whatsoever reason then the SELLER is invited to make use of the 24/7 ABB Ethics Hotline mechanism where good faith reports of illegal or unethical behaviour may be made confidentially and anonymously. The SELLER shall make such reasonable efforts as to inform its employees of this mechanism Toll free from South Africa : First Dial , wait for recording then dial Zurich telephone number: (normal international rates apply) Web portal: Postal: ABB Ltd, Legal & Compliance, Affolternstrasse 44, 8050 Zurich, Switzerland 16.2 The SELLER, and its employees, is encouraged to raise any suspicion or knowledge of unethical or

11 17 NOTICES 17.1 The Parties choose the address in South Africa set out opposite their names below as their address at which all notices, legal processes and other communications must be delivered for purposes of this Agreement A notice given under this Agreement: shall be in writing in the English language; shall be sent for the attention of the person, and to the address or fax number, given in this Clause (or such other address, fax number or person as the relevant party may notify the other party); and shall be: o delivered personally; o or delivered by commercial courier; or o sent by pre-paid first-class post or recorded delivery; or o (if the notice is to be served by post outside the country from which it is sent) sent by registered airmail The addresses for service of notice are: 17.4 A notice is deemed to have been received: if delivered personally, at the time of delivery; or if delivered by commercial courier, at the time of signature of the courier's receipt; or if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting; or if sent by airmail, five days from the date of posting; or if deemed receipt under this clause is not within business hours (meaning 9.00am to 5.30pm Monday to Friday on a day that is a Business Day), when business next starts in the place of deemed receipt For the avoidance of doubt, a notice under this Agreement shall not be valid if sent by GENERAL 18.1 The headings in this document are for reference purposes only. ABB South Africa : The SELLER : 18.2 Reference to the masculine gender shall include the femine gender and vise versa and reference to the singular shall include the plural and vise versa Where the words "include(s)", "including", "in

12 particular" or similar such words, are used in this Agreement, they are deemed to have the words "without limitation" following them.