Supplier Terms and Conditions

These STANDARD TERMS AND CONDITIONS govern a direct contractual relationship between Vodacom and the Supplier. Supplier’s own terms and conditions are excluded and shall not govern this relationship.  Relevant definitions are included below.


1.     Performance and Delivery

1.1    Supplier shall supply the Deliverables and perform the Services for Vodacom in accordance with the provisions of this terms and conditions and the appointment letter. .

1.2    Supplier shall comply with all reasonable instructions provided by Vodacom.

1.3    Supplier shall deliver the Deliverables in accordance with this terms and the appointment letter. Software products shall be delivered electronically. Risk and title shall pass on delivery. Vodacom is entitled, subject to any licence terms or restrictions expressly set out in these PO terms, to sell the Deliverables and the Services to its customers and any of the Vodacom Group subsidiaries.

1.4    Supplier shall: (i) co-operate with any third parties retained by Vodacom to provide Vodacom with goods or services; (ii) provide those third parties with access to and information about use of the Deliverables and the Services, subject to appropriate confidentiality arrangements; and (iii) keep Vodacom informed of Supplier’s progress in relation to each appointment and provide Vodacom with such information and reports in relation to the appointment as Vodacom may reasonably require from time to time.

1.5    If, as a result of inspection or testing, Vodacom is not satisfied that the Deliverables or the Services comply in all respects with these terms and conditions, together with the appointment letter, Supplier shall within 14 days of being requested by Vodacom take such steps as are necessary to ensure compliance, failing which Vodacom shall be entitled to treat this as a material breach. Similarly, if the Deliverables or the Services are not delivered on the due date, Vodacom shall be entitled to treat this as a material breach.


2.    Price, Invoicing, Payment and Expenses

2.1    All pricing and payments in relation to the appointment shall be in Lesotho Loti (LSL). 

2.2    The payments shall as agreed in the appointment letter. 

2.3    The PO shall state the Price on the basis that: (i) any line item showing a “net” amount or “net” total shall be exclusive of Sales Tax; (ii) any line item showing Sales Tax shall state that Sales Tax in full; (iii) any “total” line which is simply the sum of “net” amounts shall be treated as a “net” amount with appropriate Sales Tax to be added; (iv) any “total” line which is the sum of all “net” amounts but which adds an embedded amount for Sales Tax shall be considered inclusive of Sales Tax; and (iv) Vodacom shall not be required to pay any other duties, levies, costs or expenses of whatever nature. 

2.4    Supplier shall send Vodacom an invoice for the Price in accordance with Vodacom’s instructions and compliant with all requirements of the relevant tax authorities, marked with the PO number.

2.5    Vodacom will pay such invoices within the payment period as set out in Clause 2.11 unless there has been any material breach of the Order by Supplier, in which case Vodacom shall be entitled to withhold payment until the breach is rectified. Vodacom can withhold payment of Sales Tax charged by Supplier if the invoice does not meet the requirements as set out in this Clause 2. 

2.6    Vodacom is not required to pay any invoice that is issued more than 180 days after it is due to be issued by Supplier. 

2.7    Vodacom and Supplier may set off any sums owed to each other in relation to a particular Order.

2.8    If Supplier incorrectly charges Sales Tax to Vodacom, Supplier shall repay this Sales Tax to Vodacom together with related interest, penalties and costs within 30 days of the error being identified.

2.9    Where the Lesotho Income Tax Act No 9 of 1993 as amended applies, Vodacom shall deduct withholding tax at the applicable rate (currently 10.0%) on payments made to a foreign contractor for an income with a source in Lesotho. In such event, Vodacom will: (i) withhold and pay the withholding tax to the Lesotho Revenue Authority (“LRA”); (ii) pay the price net of such withholding to Supplier; and (iii) provide Supplier with a respective tax receipt certificate reflecting the payments. 

2.10  Supplier warrants that it is and will be tax resident in its country of incorporation at the time of placement and fulfilment of the Order.

2.11  The payment period is 30 days calendar days from the end of the month on which Vodacom receives the invoice.


3.    Warranties

3.1    Supplier warrants that: (i) all Deliverables and Services shall be new, supplied in accordance with the appointment letter or Order and free from any disabling code, virus or other software designed to permit unauthorised access to any software or disable or damage any software or data; (ii) all information provided to Vodacom in relation to the appointment letter or Order shall be accurate and correct; (iii) it shall comply with all Applicable Laws; and (iv) the work shall be undertaken by suitably qualified, trained and skilled staff.

3.2    Unless otherwise specified in the appointment letter or Order, Supplier warrants that: each Deliverable shall be free from defects in materials and workmanship under normal use and service (save those caused by normal wear and tear) for 24 months after delivery; except in the case of software, that such software shall perform error free in conformance with the STANDARD TERMS AND CONDITIONS for 12 months after delivery. 

4. Liability

4.1    Except where liability cannot be lawfully limited or where stated by these STANDARD TERMS AND CONDITIONS to be without limitation, Vodacom’s liability in relation to any claims relating to the Order shall be limited to the value  M1,000,000.00 and Supplier’s liability to Vodacom in relation to any claims relating to the Order shall be limited to M1,000.000.00.

4.2 Supplier indemnifies Vodacom and each for: (i) any alleged or actual infringement of IPR (including third-party IPR) or applicable software licence terms by or relating to the Deliverables or Services; (ii) any alleged or actual infringement by or on behalf of Supplier in relation to bribery and corruption; (iii) any alleged or actual infringement of Vodacom Applicable Law governing the protection of personal data; (iv) any breach of confidentiality; (v) any alleged or actual infringement of any Applicable Law by Supplier or its personnel; (vi) any claims for loss, death or injury to any person or any damage to property caused by Supplier; (vii) any loss arising from Supplier’s repudiation or wilful breach of this STANDARD TERMS AND CONDITIONS; and (viii) any loss arising from any act or omission of fraud or dishonesty. In respect of each of these indemnities, Supplier shall compensate Vodacom for all losses, liabilities, damages, claims and costs sustained by Vodacom in each Order without limitation

5. Termination

5.1    Where a party materially breaches these terms and the appointment letter and fails to remedy the breach within 14 days of receipt of notice of the breach from the non-breaching party, the non-breaching party may terminate the appointment or Order immediately on notice. Additionally, where Supplier is the breaching party.

5.2    The appointment or  may be terminated: (i) with immediate effect by either party if the other party becomes insolvent or otherwise unable to pay its debts as they fall due; or (ii) by Vodacom on notice if a person who controls Supplier ceases to control Supplier.

5.3    Vodacom may terminate the appointment at any time immediately on notice. In such circumstances Vodacom shall pay the agreed commission in the appointment letter for Services provided. 

 6.    IPR

6.1    Supplier grants to Vodacom free of charge the unrestricted licence to use Supplier’s pre-existing IPR as necessary for Vodacom to receive, hold and make use of the Deliverables and the Services and otherwise to fully and freely exploit any New IPR, which shall include without limitation, the right to: (i) make backup copies of any Deliverable; and (ii) modify or adapt any Deliverable to correct any errors or improve operation for interoperability.

6.2    Supplier shall notify Vodacom in writing if in its fulfilment of the appointment or Order it wishes to make use of Third Party IPR and warrants that it shall obtain all necessary permissions in respect of such Third Party IPR to enable it to perform its obligations under the Order and to allow Vodacom on an unrestricted and free of charge basis to receive, hold and make use of the Deliverables and the Services and otherwise to fully and freely exploit any New IPR.

6.3    Vodacom may grant sub-licences of the licences granted in Clause 6.1 and 6.2 to Vodacom Group subsidiaries.

6.4    Supplier shall at Vodacom’s reasonable request and cost deposit all source code relating to software (save for commercially available Third Party IPR) necessary for the full enjoyment of the Deliverables with a recognized independent third party escrow agent under the agent’s standard escrow agreement.

6.5    Supplier shall not make use of any software component subject to an open source licence in any Deliverables. Where Vodacom agrees to such use, Supplier shall provide Vodacom with: (i) a list of the relevant software components; (ii) the licence terms applicable to them; (iii) a summary of the obligations and restrictions imposed on Vodacom; and (iv) confirmation that Supplier has taken all necessary steps to comply with such terms.

6.6    All New IPR shall be exclusively owned by Vodacom, and Supplier irrevocably and unconditionally assigns to Vodacom (by way of present assignment of future rights) all right, title and interest in and to the New IPR, and Supplier shall at its own cost do all things necessary to perfect such assignment. If it is not legally possible to make an assignment of the New IPR to Vodacom, Supplier shall grant to Vodacom as full and free an exclusive licence as possible of the New IPR, together with the exclusive right to control the exploitation of the New IPR.

6.7    Where a threat or claim of infringement of IPR or applicable software licence terms jeopardizes Vodacom’s ability to fully and freely receive, hold and make use of any Deliverables, Supplier shall (without prejudice to any other rights of Vodacom) either obtain appropriate licences or otherwise supply re-designed Deliverables to enable Vodacom’s continued exploitation of such Deliverables.

6.8    All licences granted under this Clause 6 shall continue after termination of the appointment or Order.


7.    Confidentiality and Publicity

7.1    The parties will keep in confidence the provisions of these STANDARD TERMS AND CONDITIONS and any confidential information obtained under the appointment letter and will not, without the written consent of the other party, disclose that confidential information or the existence or details of the appointment or Order to any person. The parties will use confidential information obtained under the appointment or Order only for the purposes of the appointment or Order.

7.2    The obligations set out in Clause 7.1 shall not apply to information which: (i) has been published other than through a breach of this Order; (ii) is lawfully in the possession of the recipient before the disclosure under this Order took place; (iii) has been obtained from a third party who is free to disclose it; or (iv) which a party is required to disclose by law or for the purposes of a regulatory authority. 


8.    Bribery and Corruption 

8.1 Compliance with Applicable Laws in relation to bribery and corruption is a matter of fundamental importance for Vodacom. Each Party, including its employees, agents, consultants, contractors and subcontractors, shall: (i) act in accordance with all Applicable Law relating to bribery and corruption; (ii) not do or omit to do anything likely to cause the other Party to be in breach of any of such Applicable Laws; (iii) not give, promise, receive or request any bribes (financial or other advantage), including in relation to any public official; (iv) maintain an effective anti-bribery (including gift and hospitality) compliance programme, designed to ensure compliance with such Applicable Laws, including the monitoring of compliance and detection of violations; and (v) reasonably assist the other Party, at that other Party’s reasonable request and expense, to comply with obligations related to bribery and corruption required by such Applicable Laws. Supplier shall promptly notify Vodacom of any allegation of fraud, bribery or corrupt practices made against Supplier in court, arbitration or administrative proceedings, or if any investigation is commenced in respect of such allegations

9.    Data Processing

9.1    Where Supplier is to process any personal data in conjunction with the appointment or Order, it shall enter into a data processing agreement with Vodacom in a form acceptable to Vodacom.

10.    Policies

10.1    Supplier shall comply with the VPC Supplier Policies and the Local Market Supplier Policies.

11.    Further Provisions

11.1    Supplier shall insure against all foreseeable risks and liabilities which it may face in relation to the appointment or Order.

11.2    Each party may Transfer all or any of its rights or obligations under the appointment or Order to any Group Company provided that such Group Company is of no less financial standing than the relevant party, but may not otherwise Transfer all or any of its rights or obligations under the appointment or Order without the prior consent of the other party.

11.3    The appointment or  shall be governed by and construed in accordance with the laws of the Kingdom of Lesotho and each party irrevocably submits to the exclusive jurisdiction of the Courts of the Kingdom of Lesotho in relation to the appointment. Each Party has the right to file any action necessary in any court of competent jurisdiction to seek specific performance, an injunction, or other forms of emergency relief to restrain the other as a remedy for any actual or threatened breach.

11.4    These STANDARD TERMS AND CONDITIONS and this clause 11.4 may only be varied by written agreement and rights under them may only be waived in writing.

11.5    Except as expressly stated otherwise in these STANDARD TERMS AND CONDITIONS, the rights of a party under these STANDARD TERMS AND CONDITIONS, each Order and at law are cumulative and are in addition to any other rights of that party.

11.6    The following clauses survive termination of the Order: Clauses 1.4 (Sale of deliverables and services), 2 (Price, Invoicing, Payment and Expenses), 3 (Warranties), 4 (Liability), 5.3 (Effect of Termination), 6 (IPR), 7 (Confidentiality and Publicity), 8 (Bribery and Corruption), 9 (Data Processing), 11.2 (Transfer of Rights), 11.3 (Governing law), 11.4 (Loss or damage to Vodacom), 11.6 (Rights cumulative), 11.7 (Survival), 11.8 (No Partnership) and those of the definitions in clause 12 as necessary to give effect to the previously listed clauses.

11.7    Nothing in these STANDARD TERMS AND CONDITIONS shall create any partnership or joint liabilities between the parties.

12.     Definitions

“Applicable Law” means all laws, legislation and regulations of the Kingdom of Lesotho.

“Deliverables” means the materials, physical media, goods, software and work product of any Services;

“Goods Receipt Notice” means the confirmation from Vodacom that the Deliverables have been received or accepted or performed (as applicable) at the delivery address set out in the STANDARD TERMS AND CONDITIONS;

“Group Company” means a Vodacom International Holdings (Pty) Ltd (VIH) or an entity which owns Supplier or in respect of which Supplier owns (directly or indirectly) 50% or more of the issued share capital;

“IPR” means intellectual property rights;

Local Market Supplier Policies means the set of policies for suppliers maintained by Vodacom, as updated from time to time;

“New IPR” means new IPR: (a) incorporated or embodied in the Deliverables; (b) arising from the performance of the Services; or (c) arising from any research, development, design, testing or other preparatory work carried out by Supplier in order to ensure that the Deliverables comply with the Order;

Order means the STANDARD TERMS AND CONDITIONS, Specification, these terms and any associated documentation identified in one of those documents as forming part of the Order (including, without limitation, any statement of work or work order);

“parties” means Vodacom and the Supplier;

“PO” means the purchase order, being a document issued by Vodacom indicating types, quantities and the agreed Price of Deliverables or Services;

“Price” means the price as set out in the PO;

“Sales Tax” means Value Added Tax or any similar tax in any relevant jurisdiction, including, without limitation, sales and use taxes;

“Services” means the work to be carried out by Supplier;

“Specification” means the requirements document(s) prepared in connection with the appointment letter or Order (including, without limitation, any statement of work or work order or appointment letter as the case maybe);

“Supplier” means the entity referenced in the signature box at the end of these STANDARD TERMS AND CONDITIONS, or any other entity named as the Supplier on the STANDARD TERMS AND CONDITIONS;

“Third Party IPR” means IPR owned by any third party;

“Transfer” means assign, novate, subcontract or otherwise transfer;

“Vodacom” means Vodacom Lesotho (Pty) Ltd.

VPC Supplier Policies means the set of Standard terms and Conditions for suppliers maintained by VPC, as updated from time to time.

13.     SANCTIONS

13.1    The Parties shall, in carrying out their obligations in relation to this Agreement, comply with all export control laws and regulations (“Export Control Laws”) and all economic, trade and financial sanctions laws, regulations, embargoes or restrictive measures administered (“Sanctions”) in both cases enacted or enforced by the governments of the United Kingdom, European Union, United States of America and any other relevant country.

13.2    Each Party shall, in carrying out their obligations in relation to this Agreement:

13.2.1 not do anything which may cause the other Party, to breach any Export Control Laws or Sanctions, and the Company shall  not do anything which may cause any Vodacom Group Company to breach any Export Control Laws or Sanctions;

13.2.2 provide such assistance and documentation, to the extent possible, as the other Party (“Requiring Party”) may reasonably require, including but not limited to end customer information, destination and intended use of goods, works and services provided by the Requiring Party, as well as any existing export control restrictions, so that the Requiring Party may comply with all applicable Export Control Laws and Sanctions;  

13.2.3 notify the other Party in writing as soon as possible if it becomes aware of any breach  of its obligations either under this Clause or under any applicable Export Control Laws or Sanctions.

13.3    Neither Party shall be required by the terms of this Agreement to be directly or indirectly involved in the provision of goods, technology, software or services that may be prohibited by Export Control Laws.

13.4    Each Party hereby undertakes that it shall not, and shall not permit any third party to, directly or indirectly, re-export, re-sell or otherwise transfer any IR Services to any person or place, or for any purpose, in breach of Export Control Laws, including but not limited to any conditions imposed by licence, or any re-export/retransfer to an unauthorised party or destination.  If either Party contemplates a transfer of any IR Services to a third party it shall require that third party to undertake obligations in terms substantially similar to this Clause.

13.5    Each Party (“Notifying Party”) shall notify to the other Party in writing as soon as possible if:

13.5.1 Such Notifying Party becomes listed on any restricted parties list (including, without limitation, the US Consolidated Screening list and the HMT Consolidated SDN list) or becomes subject to any Sanctions; or

13.5.2  It becomes aware that any relevant authority in any jurisdiction has initiated or will initiate any investigation or proceedings against the Notifying Party relating to an actual or potential breach of any Export Control Laws or Sanctions in relation to its obligations under this Agreement.

13.6 Without limiting its other rights or remedies, a Party shall be entitled to suspend the services provided under this Agreement and/or terminate this Agreement on written notice to the other Party (“Breaching Party”) with immediate effect, without liability and without obligation to provide any further service of any kind to the Breaching Party or any of its subcontractors if the Breaching Party breaches its obligations under this Clause or if the Breaching Party (or any Person(s) who controls such Breaching Party) becomes listed on any restricted parties list (including, without limitation, the US Consolidated Screening list and the HMT Consolidated SDN list) or becomes subject to any Sanctions.”


14.     Vodacom, VPC and Supplier Details

14.1    Vodacom details are as set out in the table below, as may be updated from time to time:

Corporate Name

Vodacom Lesotho (Pty) Ltd

Registered Address

Block B, Level 7, Development House, Kingsway Road,

 P.O Box 7387, Maseru 100, Lesotho

Registration Number

I95/236

Contact person

Head of Legal; copy to Head of Supply Chain Management

  

Signed by a duly authorised officer of Supplier for and on behalf of Supplier:

 

……………………………………………………………………… ¿ (sign here)

Supplier Corporate Name

 

 

Registered Address

 

 

VAT Number (If applicable)

 

 

Contact person

 

 

Signatory Name

 

 

Signatory position

 

 

Date