TERMS AND CONDITIONS OF PURCHASE

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions.

In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Madagascar are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.8.
Contract: the contract between the SP Madagascar (SPM) and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Goods: the goods (or any part or parts of them) including, but not limited to hardware, software, equipment or other articles or items as set out in the Order Form (if applicable).
Insolvency Event: means
(a) any distress, execution or other process levied upon any of the assets of the relevant party;
(b) the relevant party suspends, or threatens to suspend, payment of its debts or is, or is deemed, unable to pay its debts;
(c) the relevant party convenes a meeting of its creditors or a proposal is made for a voluntary arrangement or a proposal is made for a composition, scheme or arrangement with (or assignment for the benefit of) its creditors or a trustee, receiver, administrative receiver or a similar officer is appointed in respect of all or a part of the business or assets of the relevant party or a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the relevant party or for the making of an administration order;
(d) the Supplier’s financial position deteriorates to such an extent that in the opinion of SPM the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(e) any event occurs, or proceeding is taken, with respect to the relevant party in any jurisdiction in which that party is incorporated, resides or carries on business that has an effect equivalent or similar to any of the events mentioned in (a) to (c) above.
Intellectual Property Rights: all copyright, database rights, topography rights, design rights, trade marks, trade names, utility models, patents, domain names, compilation rights, marks (and related goodwill), trade secrets and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Products.
Order: means SPM’s order for the Goods, as set out within SPM’s Order Form.
Order Form: means SPM’s standard order form or any other order form (including e-mail) which is acceptable to SPM. The parties may agree amendments to the order form from time to time during the term of the agreement.
Regulatory Requirements: any and all applicable laws, enactments, orders, regulations and other instruments relating to the design, manufacture, packaging, labelling, storage, handling, marketing, sale, import, export and/or delivery of the Goods together with all relevant regulations, codes of practice and guidance imposed by any governmental, regulatory, or trade body from time to time.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the SPM and the Supplier.
SP Madagascar: SP Madagascar, a company registered in Madagascar, NIF 2002081211, RCS 2015 B 00820, Stat 46101 11 2015 0 whose registered office is at Explorer Business Park, Building 1, Ankorondrano, Antananarivo 101 MADAGASCAR.

1.2. Construction.

In these Conditions, unless the context requires otherwise, the following rules apply:
(a). A reference to a party includes its personal representatives, successors or permitted assigns.
(b). A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statut or provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(c). Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(d). A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1. These Conditions set out the terms and conditions under which the Supplier shall supply Goods to SPM and shall apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate in any invoice, delivery note or other similar document, or which are implied by trade, custom, practice or course of dealing.
2.2. The Order constitutes an offer by the SPM to purchase the Goods in accordance with these Conditions.
2.3. The Order shall be deemed to be accepted on the earlier of:
(a). the Supplier issuing a written acceptance of the Order; and
(b). the Supplier doing any act consistent with fulfilling the Order at which point the Contract shall come into existence.
2.4. SPM may cancel any Order at any time prior to the receipt of express or implied acceptance in accordance with condition 2.3 by giving written notice to the Supplier.

3. THE GOODS

3.1. The Supplier warrants to SPM that the Goods will:
(a). correspond with their description and any applicable Specification;
(b). be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the SPM expressly or by implication;
(c). be free from defects in design, material and workmanship and remain so for 12 months after Delivery;
(d). comply with and enable SPM to comply with all Regulatory Requirements.
3.2. The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits out its obligations under the Contract.
3.3. SPM shall have the right to inspect and test the Goods at any time before delivery.
3.4. If following such inspection or testing SPM considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, SPM shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and SPM shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

4. DELIVERY

4.1. The Supplier shall ensure that:
(a). the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b). each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c). if the Supplier requires SPM to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2. The Supplier shall deliver the Goods:
(a). on the date specified in the Order,
(b). to the location as set out in the Order or such other location as is set out in the Order, or as instructed by the SPM prior to delivery (Delivery Location); and
(c). during the SPM’s normal business hours, or as instructed by SPM.
4.3. Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4. SPM shall be entitled to reject any Goods delivered which are not in accordance with this Contract and shall not be deemed to have accepted any Goods until SPM has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
4.5. The Supplier shall not deliver the Goods in instalments without SPM’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, this Contract will be treated as a single contract and is not severable.

5. REMEDIES

5.1. If the Goods are not delivered on the date they are due as referred to in clause 4.2(a), or do not comply with the warranties set out in clause 3.1, then, without limiting any of its other rights or remedies, SPM shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods:
(a). to terminate the Contract;
(b). to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
(c). to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods if paid;
(d). to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e).  to recover from the Supplier any costs reasonably incurred by SPM in obtaining substitute goods from a third party; and
(f). to claim damages for any other costs, loss or expenses incurred by SPM which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
5.2. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.3. The Supplier shall keep SPM indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the SPM as a result of or in connection with:
(a). any claim made against the Storm Procurement for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b). any claim made against the SPM by a third party arising out of, or in connection with, the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(c). any claim made against the SPM by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
This clause 5.3 shall survive termination of the Contract.
5.4. SPM’s rights and remedies under these 11. Conditions are in addition to its rights and remedies implied by statute and common law.

6. TITLE AND RISK

Title and risk in the Goods shall pass to SPM on completion of delivery in accordance with these Conditions.

7. IMPORT AND EXPORT LICENCES

The Supplier is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by SPM, the Supplier shall make those licences and consents available to SPM prior to the relevant delivery.

8. PRICE AND PAYMENT

8.1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence.
8.2. The price of the Goods is exclusive of amounts in respect of value added tax (VAT) or any similar sales tax or any tax that replaces such sales taxes, but includes the costs of packaging, insurance and carriage of the Goods.
8.3. The Supplier shall not increase the price of the Goods (whether on account of increased material, labour or 12.2 transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of SPM.
8.4. On or after delivery of the Goods, the Supplier shall issue to SPM a valid VAT or similar sales tax  invoice.
8.5. The Supplier may invoice SPM for the Goods on or at any time after the completion of delivery.
8.6. SPM shall pay correctly rendered invoices within 60 days from the end of the month in which the relevant invoice was received.
8.7. SPM may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier.

9. RESALE

SPM shall be permitted to resell the Goods to any third party. By allowing resale, the Supplier agrees to confer a licence in relation to its Intellectual Property rights but does not exhaust its Intellectual Property Rights.

10. INSURANCE

The Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover such heads of liability as may arise under or in connection with the Contract, and shall, on SPM’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

11. CONFIDENTIAL INFORMATION

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Specifications, inventions, processes or initiatives which are disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products or its services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.

12. TERMINATION

12.1. Either party may terminate any Contract at any time with immediate effect (or following such notice period as it sees fit) by giving written notice to the other if:
(i) the other party commits a material breach of any term of the Contract and (if such term is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;
(ii) the other party suffers an Insolvency Event;
(iii) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
12.2. Termination of any Contract shall be without prejudice to any other rights which the other party may have under that Contract and without prejudice to any rights and liabilities which may have accrued prior to the date on which termination takes effect.

12.3. The provisions of Conditions 5.3, 10, 11 and 14 shall survive termination of the Contract.

13. FORCE MAJEURE

13.1. Neither party shall be liable to the other, or deemed to be in breach of this Contract, for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control (including without limitation fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other industrial action, act of God, war, warlike hostilities or threat of war, terrorist activities, accidental or malicious damage and any prohibition or restriction by any government or other legal authority which affects this Contract) of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract.
13.2. A party claiming to be unable to perform its obligations under this Contract (either on time or at all) in any of the circumstances set out in clause 13.1 shall notify the other party of the nature and extend of the circumstances in question as soon as practicable.
13.3. This clause 13 shall cease to apply when such circumstances have ceased to have effect on the performance of this Contract and the party affected shall give notice to the other party that the circumstances have ceased.
13.4. If any circumstance relied on by either party for the purpose of this clause 13 continues for more than 6 months, the other party shall be entitled to terminate this Contract with immediate effect given in writing.

14. INDEMNITY

14.1. The Supplier agrees as a continuing obligation, to indemnify SPM against and to pay on demand an amount equal to any loss, damages, claims or expenses which SPM my directly or indirectly suffer or incur at any time or from time to time arising out of or in connection with:
(a) any defect in the design, quality or workmanship of the Goods;
(b) any claim that the Goods provided by the Supplier infringe a third party’s Intellectual Property rights whether or not under English law, or any rights arising out of the use or supply of the Goods;
(c) any claim made against SPM in respect of any liability, loss, damage, injury, cost or expense sustained by SPM’s employees or agents or by any SPM or third party to the extend that such liability, loss, damage, injury, cost or expense was caused by, relates to, or arises from the delivery of Goods as a consequence of the Supplier’s negligence or a direct or indirect breach by the Supplier of the terms of any Contract;
(d) any wilful abandonment, fraudulent or dishonest act or omission by the Supplier in respect of its obligations under any Contract; and
(e) any Product Recall; and/or
(f) any breach of the Contract.
14.2. Nothing in these Conditions shall limit or exclude either party’s liability for
(i) death or personal injury resulting from negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of the terms implied by the Sale of Goods and/or the Supply of Goods and Services;
(iv) defective products that arises under the EU Product Liability Directive (85/374/EEC) and/or the EU General Product Safety Directive (2001/95/EC) (and/or any implementing legislation);
(v) the US Consumer Product Safety Commission or any other Regulatory Requirements; or the indemnity contained in clause 14.1.

15. PRODUCT RECALL

If a Product Recall is required by Regulatory Requirements or is deemed necessary by SPM, the Supplier shall promptly provide SPM with all necessary assistance to enable the Product Recall to be conducted efficiently and with due urgency either by SPM or the Supplier.

16. RIGHTS
16.1. All specifications, information, data, drawings, software and other items supplied to SPM shall be disclosed to SPM without any restrictive rights on a non-proprietary basis.
16.2 Any work, writing, idea, discovery, improvement, invention (whether patentable or not), trade secret or intellectual property of any kind first made or conceived by Supplier in the performance of this Contract or which is derived from the use of information supplied by SPM shall be the property of SPM.  Supplier shall disclose promptly, in writing, all such works, writings, ideas, discoveries, improvements, inventions, trade secrets or intellectual property to SPM, and shall execute all necessary documents to perfect SPM’s title thereto and to obtain and maintain effective protection thereof. Any work produced under this Contract shall be assigned to, and shall be, the property of SPM.

17. GENERAL

17.1. Assignment and subcontracting
(a). SPM may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
(b). The Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without SPM’s prior written consent.
17.2. Notices
(a). Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
17.3. Severance
(a). If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b). If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.4. Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
17.5. Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.6. Relationship. Nothing in this agreement shall be deemed to create a partnership or joint venture or contract of employment of any kind between the parties, nor shall it be deemed to grant any authority not expressly set out in this agreement or create any agency between the parties.
17.7. Time of the Essence. Time is of the essence for all orders, unless expressly stated this does not apply to any particular order.
17.8. Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Storm Procurement.
17.9. Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Madagascar law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Antananarivo, Madagascar. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to this Contract.