GHANA PURCHASE ORDER TERMS AND CONDITIONS

Transcription

1 GHANA PURCHASE ORDER TERMS AND CONDITIONS N e w m o n t G h a n a G o l d L i m i t e d

2 TABLE OF CONTENT 1. Definitions 2 2. Price 2 3. Payment 2 4. Right to Set Off 3 5. Taxes 3 6. Packaging and Transportation 3 7. Shipping and Documentation 3 8. Delivery 4 9. Inspection Right to Reject Title Time Force Majeure Warranty Indemnity Insurance Cancellation Termination Complete Agreement Variation Assignment Correspondence and Documentation Correspondence and Documentation Applicable Law Miscellaneous Items Gratuities 9 1

3 TERMS AND CONDITIONS OF PURCHASE 1. Definitions Buyer means ; Goods means the materials, supplies, goods and equipment to be supplied by Seller in accordance with this Purchase order; Price means the rates or prices identified on this Purchase Order; Purchase Order means the binding agreement comprised by the Purchase Order Form and any Special Conditions, specifications, data sheet, drawings, exhibits and other documents attached to such Purchase Order Form or specifically referenced therein. Vendor means the person, firm or company to whom this Purchase Order is issued and named on it; Site means the Buyer s Ahafo mine-site located in the Brong Ahafo Region of Ghana; Reference to FOB, CIF, CFR and other INCOTERMS shall be interpreted in accordance with the 2010 ICC international rules for interpretation of trade terms. 2. Price The Price stated on this Purchase Order shall remain firm and fixed for the duration of this Purchase Order, and unless otherwise specifically agreed in writing herein (i) shall not be subject to any escalation, additional charges or any other increases of whatsoever description, and (ii) shall include all costs, royalties and license fees, taxes, customs duties, fees or charges of any kind incurred by the Vendor, as well as packaging, marking, crating, handling and shipping costs. 3. Payment Unless otherwise stated in this Purchase Order, a 45 net day s payment will be made, subject to submission of properly constituted invoice(s) and supporting documentation as specified in this Purchase Order. Items shown separately on this Purchase Order shall be shown separately on the invoice. Invoices shall be in a form approved by the Buyer, shall show this Purchase Order number and the place where the Goods were delivered, and shall be accompanied by a signed copy of the delivery docket. With respect to any reimbursable items, the Vendor shall provide full documentation and receipts as directed by the Buyer. The making of payment shall not prejudice the Buyer s right of rejection of Goods that do not comply with the requirements of this Purchase Order. 2

4 4. Right to Set Off The Buyer shall have the right to set-off amounts owing from the Vendor to the Buyer against payment under this Purchase Order. 5. Taxes The Vendor shall be responsible and liable for all taxes applicable to its supply of Goods and shall indemnify the Buyer for the Vendor s failure to pay such taxes on a timely basis. If any exemption, reduction, allowances or other privileges in relation to taxes may be available to the Vendor or the Buyer, the Vendor shall use all reasonable endeavors to enable the Buyer to benefit from any savings or refunds (including interest awarded) to the maximum allowable extent. The Buyer may withhold or deduct from any payment due the Vendor, any taxes that the Buyer is required by any taxing authority to withhold or deduct. Where the Vendor is a Ghanaian entity, all invoices must contain the Vendor s Ghanaian tax file number and be accompanied by an original Ghanaian Value Added Tax invoice to be sent to Newmont Account Payable Department for processing, unless otherwise exempted by Ghana Tax Authorities. This exemption must be communicated in writing to the Principal. The invoice must also clearly specify the tax amount of the total invoice value. 6. Packaging and Transportation The Vendor shall ensure that the Goods are adequately protected from damage and deterioration during shipment and short term storage having due regard for the conditions and environment at the Site and areas through which the Goods will traverse, to include climate, roads, and requirement for multiple handling. In packaging, marking and transporting the Goods, the Vendor shall abide by international and national regulations regarding the transportation of Goods and the protection of safety, health and the environment. All hazardous goods shall be clearly labeled. If the Goods include or constitute dangerous, hazardous or toxic items, the Vendor must include Material Safety Data Sheets and clearly mark or label the Goods with appropriate information, provide necessary shipping certification and otherwise comply with all applicable governmental regulations and requirements of the Buyer. Costs arising from failure of the Vendor to follow proper packaging, marking and transporting procedures and instructions as specified in this Purchase Order shall be for the account of the Vendor. 7. Shipping and Documentation The Vendor must immediately notify the Buyer of the date and time of each dispatch of Goods, and include the Purchase Order number, the quantity and description of the Goods dispatched, and the 3

5 expected date and time of arrival at the place of delivery. Each case, carton, box, crate or container in each shipment shall be accompanied by a proper delivery docket/packing list that details Purchase Order number, quantity and description of Goods, attached to the exterior of the package with a duplicate inside. Items shipped loose shall be so identified on the packing list. The Buyer s count will be accepted as final and conclusive on shipments not accompanied by the Vendor s itemized delivery docket/packing list. To the extent feasible, shipments shall be palletized. Costs for palletizing shall be included in the Price. All goods received in excess of Purchase Order requirements will be subject to return for credit at the Vendor cost. Costs arising from failure of the Vendor to follow proper shipping instructions as specified in this Purchase Order shall be for the account of the Vendor. 8. Delivery Vendor shall deliver all Goods and documentation, or have available for pickup, on the dates specified and at the delivery points specified in this Purchase Order. If the Goods and/or documentation are incorrectly delivered, the Vendor will be responsible for any additional expense incurred in delivering them to their correct destination. Delivery will not be completed until the Vendor has complied in full with the Shipping and Documentation requirements detailed in this Purchase Order. Goods supplied in error and Goods that are rejected will be returned at the Vendor s risk and expense. The Vendor at its own expense shall furnish such schedule of manufacture and delivery as the Buyer may reasonably require and immediately notify the Buyer of any delay or anticipated delay in the delivery of Goods or documentation. 9. Inspection The Buyer and its designated agent or representative shall have full and free access at all reasonable times to inspect the Goods from standpoints of quality, progress and compliance with the requirements of this Purchase Order. Such inspection may take place at any stage of engineering, manufacture or completion at the shops, factories or other places or businesses of the Vendor or its suppliers. Any inspection, lack of inspection, checking, approval or acceptance of the Goods by the Buyer and/or its designated agent or representative will not relieve the Vendor of its responsibility to supply and deliver Goods in accordance with the requirements of, or to otherwise comply with its obligations under, this Purchase Order. 10. Right to Reject If the Vendor delivers the wrong quality or quantity of Goods or otherwise delivers Goods that do not conform with the requirements of this Purchase Order, then without prejudice to any other rights which the Buyer may have against the Vendor, the Buyer may within a reasonable time from delivery reject 4

6 such Goods and return same at the Vendor s expense or convert such Goods into a conditions of acceptability to the Buyer at the Vendor s expense. 11. Title The Vendor warrants to Buyer that Vendor will provide good and unencumbered title for all Goods under this Purchase Order. Title shall transfer to the Buyer at the time of delivery to or pick up by the Buyers designated freight forwarder and acceptance by the Buyer; however, if the Vendor receives partial or progress payments prior to such delivery and acceptance, the Vendor shall transfer title to completed or partially completed goods and materials at the time of such payment, and identify such items as the property of the Buyer by conspicuously marking or tagging same. Notwithstanding passage of title on completed or partially completed goods and materials at the time of partial or progress payments, risk of loss on such items shall remain with the Vendor until Goods are delivered to or picked up by and accepted by the Buyer. 12. Time The Vendor must complete delivery of Goods or have available pickup and documentation within the time(s) stated in this Purchase Order. Time is of the essence with respect to such delivery. Extensions of time may be granted at the sole discretion of the Buyer. If the Vendor is unable to make delivery within the time stipulated (or within any extension of time granted by the Buyer) the Buyer will, unless the delay results from a force majeure event or the Buyer s own act or omission, be at liberty without prejudice to any other right or remedy of the Buyer to either (a) cancel this Purchase Order; or (b) at the Vendor s expense make special arrangements for expedited transport to the Site. 13. Force Majeure Neither the Vendor nor the Buyer shall be considered in breach of its obligations under this Purchase Order where performance is delayed or prevented by any circumstances beyond such party s reasonable control, including but not limited to an act of God or a public enemy, fire, flood, area-wide strike, freight embargo, or unusually severe weather; provided that the party claiming force majeure shall within ten (10) days from the beginning of such event notify the other party in writing of the fact of the event and its probable effect on performance; and provided further that the party claiming force majeure shall take reasonable measures to mitigate the potential impact of the force majeure event on its performance under this Purchase Order. A force majeure event shall not be a basis for a claim for additional compensation, and each party shall bear its own costs and expenses associated with or caused by such an event. 5

7 14. Warranty The Vendor warrants to the Buyer that the Goods covered by this Purchase Order will strictly comply with the specifications, drawings, and other descriptions identified in this Purchase Order or thereafter mutually agreed by the parties in writing and will be new, of good quality, of good materials, design and workmanship, free from defects, and will fulfill the operating conditions specified herein. The Vendor shall promptly repair or replace all Goods which are or become defective during the period of twelve (12) months from putting the Goods into regular operation or eighteen (18) months from delivery and acceptance, whichever shall be the shorter. All repair and replacement shall themselves be subject to the foregoing warranty and obligations for a period of twelve (12) months from the completion of such repair or replacement. This Warranty does not cover the effects of normal wear, tear, or deterioration of the Goods; or the effects of improper storage or erection; or improper operation or maintenance of the Goods by the Buyer. 15. Indemnity The Vendor shall indemnify, defend and hold harmless the Buyer, its Corporate Affiliates and their directors, officers, employees, agents and representatives from and against any demands, causes of action, liability, loss or expense arising from or relating to (a) the Vendor failure to comply with applicable laws, regulations or governmental orders in the supply of Goods or performance under this Purchase Order, (b) violation or infringement of rights in any patent, copyright, proprietary information, trade secret or other property right caused or alleged to be caused by the use or sale of Goods under this Purchase Order except in so far as such infringement is due to the Vendor having used or followed a designed provided by or on behalf of the Buyer, and (c) to or death of persons (including employees of the Buyer and the Vendor) or from damage to or loss of property resulting from the negligent acts or omissions of the Vendor or defects in the Goods. 16. Insurance Unless otherwise specified in this Purchase Order, the Vendor shall have the risk of loss with respect to and shall be responsible to insure the Goods against loss or damage during manufacture, pending delivery and in transit to the delivery point specified in the Purchase Order and until acceptance by the Buyer. If Goods are destroyed or damaged prior to delivery and acceptance, the Buyer will be entitled to cancel this Purchase Order in respect of those Goods without the Vendor being entitled to any payment or compensation, and to the extent any payment has been made by the Buyer in respect of those Goods, the Vendor must immediately refund in full the amount so paid. 6

8 17. Cancellation The Buyer may cancel this Purchase Order in whole or in part by giving written notice to the Vendor indicating the date of cancellation. As of the date of cancellation, the Vendor shall cease manufacture, supply and all other work, not place any further orders or commitments, take all action relating to the cancellation that the Buyer may reasonably require. To the extent the Goods are standard or stock items and are not yet delivered or in transit, the Buyer shall have no further obligation. If the Goods are not standard or stock items, have been delivered or are in transit, the Buyer shall pay the Vendor all costs and expenses incurred as a result of cancellation or as reasonably determined by the Buyer plus five percent (5%) to cover the Vendor s overhead and profit, plus amounts otherwise due under this Purchase Order, but in no event will the total amount to be paid when added to previous payments to the Vendor exceed the Price, as adjusted through Variation. In no event shall Buyer be obligated to pay any bonus, damage or other claim asserted by the Vendor for the Vendor s expected profit on the incomplete portion of the Purchase Order. 18. Termination If the Vendor breaches any of its obligations under this Purchase Order, or if the Vendor becomes insolvent or bankrupt or makes an arrangement with its creditors or has an administrative receiver or administrator appointed or commences to be wound up (other than for purposes of amalgamation or reconstruction), the Buyer may at its option and without prejudice to any of its other rights under law or this Purchase Order, terminate the Purchase Order for cause. In such event, the Vendor shall deliver or assign to the Buyer any work in progress as the Buyer may request and the Buyer may complete the performance of this Purchase Order by such means as the Buyer selects and the Vendor will be responsible for any additional cost incurred by the Buyer in so doing. Any amount due but unpaid to the Vendor as of the date of termination will be subject to offset by the Buyer s additional costs of completing this Purchase Order and other damages incurred by the Buyer as a result of the Vendor default. 19. Complete Agreement This Purchase Order constitutes the entire agreement between the Buyer and the Vendor and supersedes the Buyer s estimate and tender and all prior negotiations, representations or understandings of any kind. No conditions in the Vendor s accepting or acknowledging this Purchase Order will be binding on the Buyer unless specifically accepted in writing by the Buyer. The parties agree that neither (a) trade custom or usage and prior course of dealing, nor (ii) the United Nations Convention for the International Sale of Goods and statutory provisions implementing same, shall be applicable to this Purchase Order or the sale of Goods under this Purchase Order. 7

9 20. Variation Changes to this Purchase Order will not be binding upon the parties unless and until expressly made in writing by way of Variation and accepted by both the Buyer and the Vendor. This Purchase Order shall not be amended or superseded by any provisions in invoices, bills of lading, packing slips, receipts, rate schedules work tickets or any sales documents, whether signed or acknowledged by the Buyer. 21. Assignment Neither this Purchase Order nor any portion hereof shall be assigned, delegated or sub-let by the Vendor without the Buyer s prior written consent; provided the Vendor may subcontract to any firm or company that is listed or named in this Purchase Order as a subcontractor or sub-supplier and may sublet the supply of minor materials and details. 22. Correspondence and Documentation All correspondence and documentation related to this Purchase Order shall be in the English language and must be transmitted to the Buyer s address specified in this Purchase Order. The Purchase Order number must be shown on all correspondence and documentation, including invoices, communications, packing lists, delivery docket, waybills and bills of lading. The Vendor shall on a timely basis provide all progress reports, engineering and other data specified in this Purchase Order or otherwise required for the satisfactory use, maintenance, repair, installation or operation of the Goods. 23. Applicable Law Unless otherwise specifically provided in this Purchase Order, the validity, interpretation and enforcement of this Purchase Order shall be governed by the laws of Ghana. In the event of any dispute, controversy or claim in connection with this Agreement, the parties shall seek to resolve the matter amicably through bona fide discussion. If the matter is not settled through discussion, then the matter shall be finally settled by arbitration conducted in accordance with the UNCITRAL rules for arbitration and held in London, England or such other location as may be mutually agreed. Notwithstanding the foregoing, the Vendor agrees to comply with any and all Ghanaian and other government laws, rules and regulations that may be applicable to the Vendor s performance under this Purchase Order or to its supply and delivery of Goods. 8

10 24. Miscellaneous Items The provisions of this Purchase Order which by their nature are intended to survive the termination, completion or expiration of this Purchase Order shall continue as valid and enforceable obligations of the parties notwithstanding any such termination, completion or expiration. In the event any provision, or any part or portion of any provision of this Purchase Order shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision of this Purchase Order. The failure by either party to insist on performance of any term, condition, or instruction, or failure to exercise any right or privilege, or its waiver of any breach, shall not thereafter constitute a waiver by such party of any such term, condition, instruction, right, privilege or breach. 25. Gratuities TO BE USED WHEN VENDOR WOULD NOT DEAL WITH GOVERNMENT OFFICIALS ON BEHALF OF THE BUYER The Vendor represents, warrants and covenants to the Buyer, as of the date hereof and the date that each invoice is submitted to the Buyer, that in carrying out its responsibilities, neither the Vendor, nor any of its equity holders, beneficial owners, partners, officers, directors, employees or agents, shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (a) any official or employee of any government, or any department, agency, or instrumentality thereof, (b) any political party or official thereof, or to any candidate for political office, or (c) any official or employee of any public international organization in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act for the benefit of the Buyer, or securing any improper advantage for the Buyer or otherwise promoting the business interests of the Buyer in any respect, in violation of the lawful duty of such official, employee, party or candidate. Notwithstanding any other provision of this Agreement, the Buyer may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be evidence of a breach by the Vendor of any undertaking above. In the event of receipt of such evidence and/or such suspension, the Buyer shall consult with the Vendor and may thereafter immediately terminate this Agreement if the Buyer, in its sole discretion, is reasonably satisfied that such a breach has occurred. In the event of such termination, the Buyer shall have no liability to the Vendor under this Agreement for any fees, reimbursements, or other compensation under this Agreement or for any other loss, cost, claim, or damage resulting, directly or indirectly, to the Vendor from such termination., other than for services already performed and/or goods already delivered. 9

11 TO BE USED WHEN VENDOR WOULD DEAL WITH GOVERNMENT OFFICIALS ON BEHALF OF THE BUYER The Vendor represents, warrants and covenants to the Buyer, as of the date hereof and as of each date that an invoice for services is submitted to the Buyer, that: i. in carrying out its responsibilities under this Agreement, neither Vendor nor any director, officer, employee, agent, partner or shareholder thereof shall, directly or indirectly, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (a) any official or employee of any government, or of any department, agency or instrumentality thereof, (b) any political party or official thereof, or to any candidate for political office, or(c) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate, or inducing such official, employee, party or candidate to do or omit to do any act for the benefit of the Buyer in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for, or inducing the Buyer such party, official, or candidate to use its or his influence with a foreign government or instrumentality for the benefit of the Buyer thereof to affect or influence any act or decision of such government or instrumentality, or otherwise promoting the business interests of the Buyer in any respect; and ii. iii. no payment, authorization, promise, offer or gift of the sort described in subsection (i) above has been made in connection with the promotion of the business interests of the Buyer. Notwithstanding any other provision of this Agreement, the Buyer may immediately terminate the Agreement if it is satisfied that, in its sole discretion, the Vendor has breached, or may or is likely to breach, any representation, warranty or covenant in sub-section (i) above. In the event of such termination, the Buyer shall have no liability to the Vendor under this Agreement for any fees, reimbursements, or other compensation under this Agreement or for any other loss, cost, claim, or damage resulting, directly or indirectly, to the Vendor from such termination, other than for services already performed and/or goods already delivered. 10