TERMS AND CONDITIONS OF SALES

1. SCOPE

All purchase orders for equipment, products and/or services by customer to SP Madagascar (SPM) are subject to the following terms and conditions and to all additional terms and conditions presented on or accompanying SPM’s quotations, SPM’s order acknowledgments and/or other documents or forms issued by SPM. SPM specifically rejects and customer disclaims all printed provisions in customer’s printed orders including associated forms and/or documents. Any amendment of these terms and conditions must be in writing and signed by SPM to be binding on SPM.

2. DEFINITIONS AND INTERPRETATION

Within these terms and conditions, definitions are defined as follows:
• “Acceptance of Customer’s Purchase Order” shall mean SPM’s agreement, as evidenced by the issuance of an order acknowledgment, to supply the equipment
and/or services identified in customer’s purchase order under the terms and conditions herein;
• “SPM” is a company incorporated under Madagascar law, and/or its designated affiliates;
• “Customer” means the person or entity who places the purchase order;
• “Delivery” means the date of delivery defined on SPM’s quotations, order acknowledgment or other documents;
• “Equipment” means the products offered for sale to customer at time of sale;
• “OEM” is defined as the original equipment manufacturer of the base product or any licensed or approved component manufacturer;
• “Order Acknowledgment” means a document provided by SPM acknowledging the receipt of customer’s purchase order and SPM’s agreement to supply the equipment and/or services stated therein under the terms and conditions stated herein;
• “Products” means equipment of SPM design and manufacture, or other manufacturer’s equipment offered for sale by SPM to customer;
• “Purchase Order” means customer’s document for the acquisition of equipment and/or services from SPM, exclusive of all printed terms and conditions contained thereon;
• “Quotation” means SPM’s conditional offer of sale for services, products and/or equipment;
• “Services” means various types of services as provided by SPM to customer covering items such as sea-freight, insurance, training, site engineering and installation;
• “Shipment Date” means the provisional date on which SPM has scheduled shipment of equipment to customer.

3. QUOTATIONS AND ACCEPTANCE OF PURCHASE ORDERS

Written documents by e-mail or fax are the only acceptable offers to contract from SPM to any customer. No verbal undertakings by any SPM employee will be considered as binding on SPM.
If SPM provides manufacturer’s literature in support of a quotation, it is the customer’s obligation to study the manufacturer’s specifications supplied and assess the suitability of the equipment quoted. Notwithstanding any description provided by SPM in any document, the manufacturer’s description shall prevail. As used herein, all customer purchase orders are subject to written acceptance by SPM, at its sole discretion, even if received elsewhere by a salesperson, selling agent or representative.

4. PURCHASE ORDER CHANGES

Customer may not change its purchase order without SPM’s written consent. Any revision in drawings, designs, specifications, shipment completion dates or purchase order termination requested by customer may result in additional cost to customer. Any additional cost to customer will be at SPM’s standard rates in effect at the time of customer’s request. SPM’s performance of customer’s request shall commence only upon the issuance of a new purchase order or written amendment to an existing purchase order authorizing the applicable charge. Customer’s oral requests for services shall be binding on customer and deemed by SPM as valid customer purchase orders, governed by these terms and conditions.
Customer further agrees, as a result of any request made hereunder, to pay any and all charges associated with such service request.

5. PRICE OF EQUIPMENT, PRODUCTS AND/OR SERVICES

The price for equipment and services are based on SPM’s quotations, statements of work or proposals. A quotation, statement of work or proposal is valid for the period of days from date of issue as mentioned in our pro-forma quotation. Errors or omissions in price are subject to correction by SPM.
The price of products, equipment and/or services may subsequently be adjusted to reasonably reflect the adverse cost impact to SPM of:
• Customer changes or delays which are outside of the scope of the agreement;
• Or legal/regulatory changes which occur after the issuance of the quotation, order and/or statement of work for the particular products, equipment and/or services in question;
• Or the failure of customer to perform its obligations.
• SPM will provide a written notice and reason for an adjustment to the price within a reasonable period of time after SPM becomes aware of an event under which SPM intends to request an adjustment. The parties will then determine, in a commercially reasonable manner, the price adjustment that is appropriate.
Pending such agreement, SPM will continue to perform the services specified in the purchase order for eight (8) business days or such other greater time that may be agreed to in writing by SPM, unless:
• Customer failed to pay amounts due to SPM when due;
• Or an event specifically identified in the quotation and/or statement of work permitting suspension or termination of the services;
• Or customer is otherwise in breach.
In the event an adjustment to the price has not been made within the aforementioned eight (8) business days, SPM shall have the right to terminate this purchase order, in whole or in part and in addition to any other remedy available to SPM and customer shall make immediate payment to SPM on account of all equipment and/or products delivered and/or services rendered.

6. SCHEDULE FOR PERFORMANCE OF SERVICES

SPM will perform the services in accordance with the schedule stated in the quotation and/or statement of work.

7. PACKAGING, SHIPMENT AND SERVICE DATES

All equipment shall be suitably packed for shipment. SPM may charge for packing and/or packaging including special documentation to comply with customer’s and/or customs’ requirements. Shipment date for equipment or date for performance of services is estimated by SPM but is not guaranteed by SPM.

8. DELAYS CAUSED BY THIRD PARTY CONTRACTORS

Customer, regardless of the circumstances, will not hold SPM liable for any liabilities, penalties, or charges of any nature due to the late performance of any service date. SPM assumes no liability for any direct or indirect damages during shipment or delivery of equipment. Equipment may be tendered in partial shipments at SPM’s discretion.
In the event of shipment delay requested by customer or a delay caused by lack of shipping instructions, SPM will store all equipment covered thereby at customer’s risk and expense. SPM will invoice the customer at the full price for the equipment including an additional storage fee.

9. TITLE OF OWNERSHIP, RISK OF LOSS AND INSURANCE

Risk of loss, damage and insurance responsibilities for the products or equipment pass from SPM to customer according to latest version of INCOTERMS. Title of ownership for the products or equipment shall pass to customer at the date of full payment of the price of such products or equipment by customer.

10. ACCEPTANCE OR REJECTION OF PRODUCTS, EQUIPMENT AND/OR SERVICES

After the delivery of the products or equipment, or the performance of services, customer will inspect them for conformity to the purchase order, statement of work and/or quotation within a period of thirty [30] days as of invoice date or as otherwise agreed in writing (hereinafter “acceptance period”). Acceptance of products, equipment and/or services by customer shall automatically occur after the passage of the acceptance period stated herein unless SPM is advised otherwise in writing within the stated acceptance period.
If any equipment, product and/or service does not substantially conform to the applicable purchase order, statement of work or quotation, customer shall notify SPM in writing of the non-conformance, and for equipment, obtain an authorization for return, and return such equipment and/or product to SPM for correction or completion as required.
With respect to services, SPM shall take prompt action to correct such unsatisfactory services. No additional cost will be charge if determined by SPM to be SPM’s fault.

11. PAYMENT TERMS

Customer’s payment obligations are stated on SPM’s invoices. Invoices for services will be rendered in accordance with an established milestone schedule or upon completion of any services. Late interests of one percent (1,00 %) per month on outstanding balances may be charged as of right. Such unpaid invoices may be increased as penalty, not reducible, to an indemnity equal to ten (10,00 %) of the due sums, besides the aforesaid interests and the possible judicial expenses. All amounts due shall be payable in the currency of SPM quotation unless otherwise specifically agreed upon in SPM’s order acknowledgement. If, in SPM’s judgment, customer’s financial condition does not justify continuation of the existing payment terms, SPM may:
• Require full or partial payment of customer’s account;
• Require payment in advance of equipment shipment;
• Require payment in advance for performance of any services;
• Change customer’s credit terms; or
• Any combination of the above.
In case a standard payment period is agreed between the customer and SPM, the agreed payment period can be modified in case SPM‘s supplier request also early payment. To this effect the modified payment terms will be clearly indicated on the quotation.
When the total amount of expired, unpaid invoices has risen to a number too high or when invoices have expired for a period too long by SPM’s judgement, SPM reserves the right to suspend the processing of orders and block shipments planned until the expired invoices are paid. For clarity, it is specified such suspension for late payment does not constitute a breach of contract. Customer shall do all that is necessary to pay its invoices in time and give SPM clear and detailed communication about payments when asked for.

12. PRODUCTS AND SERVICES WARRANTY

SPM warrants that all equipment and products supplied by SPM shall be new, of current manufacture and shall carry the manufacturers’ standard warranty unless specific exception is made in writing. Customer must promptly notify SPM of any claimed defect in the products, equipment and/or services. SPM or its agent may inspect the products or workmanship on customer’s premises. Products returned to SPM under warranty must be shipped prepaid by customer. SPM’s entire liability and customer’s exclusive remedy whether in contract, tort or otherwise, for any claim related to or arising out of breach of the warranty covering products, equipment and/or services shall be as determined by the manufacturer whose decision in all matters of warranty, will be final. SPM does not warrant that the operation of the products will be uninterrupted or error-free. Similarly, SPM does not warrant that the functions of the products, equipment and/or services will meet customer’s requirements or that the products will operate in combination with other products, equipment and/or process selected by customer for its use. SPM assumes no liability with respect to:
• Lack of insurance – either compulsory or customary – cover for customers’ shipped orders; or
• Negligent or other improper use of the products and/or equipment.
No agent, distributor, or representative is authorized to make any warranties on behalf of SPM or to assume for SPM any other liability in connection with any products or services.
With respect of all purchases of products, equipment and/or services from SPM by customer, the above warranty replaces all other warranties, express or implied, and all other obligations of SPM, including any warranties of merchantability and fitness for a particular purpose. All other warranties are disclaimed and excluded by SPM. SPM will note be liable for injuries or damages to persons or property resulting from any cause whatsoever, caused by the willful misconduct or gross negligence of SPM.
This limitation applies to all equipment, products and/or services performed during and after the warranty period.
In no event shall SPM be liable for any damages resulting from loss of data, loss of use or loss of revenue or profit and SPM further disclaims any and all liability for indirect, incidental, special, consequential or other similar damages. If any remedy hereunder fails of its essential purpose, or in any other event, SPM’s aggregate liability hereunder shall not exceed either the depreciated value of the affected equipment, products and/or services, or the actual price paid to SPM such equipment, products and/or services, whichever is less.

13. ASSIGNMENT

SPM may assign its rights and obligations by giving customer written notice thereof but without being obligated to obtain customer’s consent prior thereto. In the event if an assignment, SPM shall be discharged of any liability pursuant to those purchase orders which have been assigned or delegated, customer may not assign its rights nor delegate its obligations under any or all of its purchase orders unless SPM written consent is obtained prior thereto and any such assignment or delegation without such consent shall be void.

14. COMPLIANCE WITH APPLICABLE LAWS

The customer will comply with all applicable laws affecting the purchase and use of equipment, products and/or services. Customer agrees to maintain all registrations with governmental agencies, commercial registries, chambers of commerce, or other offices which may be required under law in order to properly conduct commercial business.
The customer is responsible for informing SPM of any specific regulation or law applicable in the country of destination which may affect anything in the execution of the purchase order.

15. CONFIDENTIAL INFORMATION

Customer will not disclose to any person or entity any information or data fixed in a tangible medium and marked as the confidential or proprietary information (hereinafter referred to as “Confidential Information”) of SPM, or if provided orally, confirmed in writing to be confidential or proprietary by SPM. Notwithstanding the provisions herein, if customer receives confidential information it shall treat such confidential information as such, prohibit recopying and use such confidential information only in connection with fulfilling its obligations under customer’s purchase order. Customer will return all confidential information to SPM upon completion of such obligations for its use, or upon the request of SPM.
Customer recognizes and agrees that the unauthorized use or disclosure of the confidential information would cause irreparable injury to CTA GROUP for which it would have no adequate remedy at law , and that any actual or contemplated breach of this clause will entitle SPM to obtain immediate injunctive relief prohibiting such breach, in addition to any other rights and remedies available to it. The obligations herein contained will expressly survive the final payment of any/or all customer purchase orders.

16. SEVERABILITY

If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity , illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather these terms and conditions shall be construed as if it did not contain the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly.

17. FORCE MAJEURE

SPM is not liable for failure or delay in fulfilling its obligations due to any causes beyond its control such as employment disputes, disruption of operations through the fault of no party, civil disturbances, measures of any authority and any other similar unavoidable events which are not the fault of SPM. In the event of any event, the date for shipment of equipment/products or performance of services will be extended correspondingly. SPM retains the right to determine the allocation of its inventory of equipment among itself, its present and future customers. In the event SPM partially fills customer’s purchase order, customer shall, nonetheless, continue to make payments on SPM invoices during the period in which the delay is in effect for those equipment, products and/or services delivered.
If an event of force majeure prevents or delays SPM’s performance for more than six [6] months, SPM shall have the right to terminate the applicable purchase order, with immediate effect.

18. SURVIVAL OF TERMS

The termination or cancellation of any customer purchase order or any relationship created hereunder between the parties or the delivery of equipment and/or products, and/or performance of services under customer’s purchase orders shall not affect each party’s obligations and rights under these terms and conditions, which by their nature, survive, notwithstanding such termination, cancellation, delivery or performance.

19. TAXES

SPM is using and apply taxes, duties managed by madagascar laws.

20. CANCELLATION FOR DEFAULT

SPM may, upon written notice to customer, cancel any and/or all customer purchase orders effective immediately if:
• Customer makes an assignment for the benefit of creditors, is unable to pay its debts as they become due; files a voluntary petition in bankruptcy; is adjudicated to be a bankrupt or an insolvent debtor; files a petition seeking for itself any reorganization; or consents to or acquiesces in the appointment of a trustee, receiver or liquidator;
• Any proceeding seeking involuntary reorganization, or similar relief is filed against Customer which is not dismissed within one (1) month after filing, or if any trustee, receiver or liquidator of customer or any substantial part of its business assets, or properties is appointed without SPM’s consent or acquiescence and such appointment is not vacated within one (1) month after such appointment;
• Customer ceases doing business as a going concern or it or its shareholders take any action looking to its dissolution or liquidation;
• Customer fails to perform any substantial contractual obligation and such failure is not remedied within fifteen (15) calendar days after notice has been given to customer;
• Customer fails to pay for any purchase order in accordance with the invoice payment terms;
• Any change occurs in the direct or indirect ownership of customer if, in SPM’s opinion, such change may be detrimental to SPM’s interest hereunder;
Any cancellation pursuant to this clause will be in addition to and will not be exclusive of or prejudicial to any other rights or remedies at law or in equity available to SPM.

21. WAIVER

No waiver will be valid unless in writing, signed by an authorized representative of SPM and no waiver granted will release customer from subsequent strict compliance herewith.

22. UPDATES

All sales are subject to the version of the T&C of sales applicable at the time of order.

23. RIGHTS

23.1. All specifications, information, data, drawings, software and other items exchanged to SPM shall be disclosed to SPM without any restrictive rights on a non-proprietary basis.
23.2 Any work, writing, idea, discovery, improvement, invention (whether patentable or not), trade secret or intellectual property of any kind first made or exchanged in the performance of this Contract or which is derived from the use of information supplied by SPM stays the property of SPM. Any work produced under this Contract shall be assigned to, and shall be, the property of SPM.

24. GOVERNING LAW – JURISDICTION

Any relationship created hereunder between SPM and customer shall be construed, interpreted and applied in accordance with the Madagascar laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the sale of products and/or equipment hereunder. Any disputes between the parties will be subject to the exclusive jurisdiction of the courts of Antananarivo Madagascar.