Vodacom Purchase Order Terms

These terms set out the contractual relationship between Vodacom and the Supplier and come into effect on the date of the Purchase Order. Supplier’s own terms and conditions are excluded and do not apply to the Order. Capitalised terms are defined below.

1. Performance and Delive
   1.1 Supplier shall supply the Products and/or perform the Services in accordance with the Order. Risk and title pass on delivery.
   1.2 Supplier shall comply with all reasonable instructions provided by Vodacom.
2. Price, Invoicing, Payment and Expenses
   2.1 All pricing, invoicing and payments shall be in the currency stated in the Purchase Order and preferably in LSL or ZAR.
   2.2 The price shall state the Price on the basis that: (i) any line item showing a “net” amount or “net” total shall be exclusive of value added tax; (ii) any line item showing value added tax shall state that value added tax in full; (iii) any “total” line which is simply the sum of “net” amounts shall be treated as a “net” amount with appropriate value added tax to be added; (iv) any “total” line which is the sum of all “net” amounts but which adds an embedded amount for value added tax shall be considered inclusive of value added tax; and (iv) Vodacom shall not be required to pay any other duties, levies, costs or expenses of whatever nature.
   2.3 Supplier shall send Vodacom an invoice (meeting all requirements of Vodacom and the relevant tax authorities) to the address indicated on the Purchase Order. Supplier’s right to invoice shall not be considered acceptance that the Products and/or Services comply with the Order, and is without prejudice to all other rights Vodacom may have.
   2.4 Vodacom shall pay invoices meeting the requirements set out in this clause 2 within the payment period as set out in the Purchase Order unless there has been any breach of the Order by Supplier, in which case Vodacom may withhold payment (in whole or in part and to the extent permitted by Applicable Law) until the breach is rectified.
   2.5 Vodacom may set off any sums owed to Vodacom by Supplier against the price.
   2.6 If Supplier incorrectly charges VAT to Vodacom; Supplier shall repay to Vodacom any overpaid VAT (where there has been overpayment) and/or any related interest, penalties and costs within 30 days of the error being identified.
   2.7 If Vodacom is required by law to deduct withholding tax from the price, Vodacom shall: (i) pay the price less withholding tax; and (ii) provide evidence to Supplier that it has passed the withholding tax on to the relevant authority.
   2.8 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.
3. Warranties
   3.1 Supplier warrants that it shall supply all Products and Services in accordance with the Order and Applicable Law and ensure that all work is undertaken by appropriately qualified, trained and skilled personnel.
   3.2 Unless otherwise specified in the Order, Supplier warrants that each Product shall remain free from material defects and errors in design, materials and workmanship under normal use and service (save those caused by normal wear and tear) for 24 months from the date of delivery, except in the case of software, that such software shall perform error free in conformance with the Order for 12 months from the date of delivery.
4. Termination
   4.1 Either party may terminate this Order immediately on formal written notice and without liability to the other party if: (i) the other party commits a material breach of the Order and, in the case of a breach capable of remedy, fails to remedy such breach within 14 calendar days after receiving formal written notice to do so; or (ii) if the other party becomes insolvent or otherwise unable to pay its debts as they fall due.
   4.2 Additionally, where Supplier is the breaching party, Supplier shall repay within 14 calendar days any part of the price which has been paid and Vodacom may return any Products or part thereof to Supplier (at Supplier’s expense).
   4.3 Vodacom may terminate the Order at any time for convenience without liability to Supplier. In such circumstances, Vodacom shall pay a reasonable proportion of the price for any Products or Services provided and any committed and substantiated costs reasonably incurred by Supplier prior to termination.
5. Intellectual Property Rights
   5.1 Each party retains ownership of its own pre-existing intellectual property rights.
   5.2 New IPR shall be owned by Vodacom, and Supplier hereby assigns (by way of present assignment of future rights) all such New IPR to Vodacom.
   5.3 Supplier hereby grants (or shall procure the grant) to Vodacom a royalty-free, non-exclusive, worldwide, perpetual, irrevocable, sub-licensable and transferable to any VGC or third party supplier, licence to use Supplier’s pre-existing intellectual property rights and/or third party owned intellectual property rights used in its fulfilment of the Order to: (i) use, exploit or licence any Products or Services in the course of Vodacom’s business and for any reasonably incidental purpose (including for use by their direct and indirect customers); (ii) use, exploit, license or enforce any New IPR; and (iii) in relation to software, transfer it to any platform.
   5.4 Supplier shall not use any material subject to third party owned intellectual property rights in any Products or Services to the extent such third party material imposes licence obligations on Vodacom and/or its sub-licensees or otherwise varies the licences provided to Vodacom in clause 5.3. If Supplier wishes to do so, it shall: (i) notify Vodacom in advance of any third party material it wishes to use and give details of any licence variations or obligations placed on Vodacom; and (ii) obtain Vodacom’s written consent prior to using such third party material in any Products or Services. Upon Vodacom’s request, Supplier must provide to Vodacom all details and licensing terms of all third party materials in the Products or Services.
   5.5 Vodacom may adapt, reverse engineer, decompile, disassemble or modify software supplied under this Order as permitted by Applicable Law.
   5.6 Where a threat or claim of infringement of intellectual property rights jeopardises Vodacom’s ability to fully and freely receive, hold and make use of any Products, Supplier shall (without prejudice to any other rights of Vodacom) either obtain appropriate licences or otherwise supply re-designed Products to enable Vodacom’s continued exploitation of such Products.
6. Confidentiality
   6.1 Each party shall handle the other party’s confidential information received by it in connection with the Order on the following basis: (i) keep it confidential for 3 years after date of disclosure; (ii) use it solely for the purpose of performing its obligations or exercising its rights in respect of the Order; (iii) not disclose it to any person save to its own directors, officers, employees or professional advisors (or those of its group companies) who need it to perform obligations, exercise rights or conduct audits in connection with the Order, or as required by Applicable Law or by any judicial or regulatory authority of competent jurisdiction (provided that, where permitted, the disclosing party informs the other party prior to any such disclosure); (iv) ensure that such persons keep it confidential; and (v) return or destroy it on termination of the Order save where it is necessary to keep it for regulatory reasons in secure archives.
   6.2 These provisions do not apply where the confidential information received: (i) is or becomes public knowledge without breach of the Order; (ii) was already in a party’s possession free of obligations of confidentiality; or (iii) is received from a third party free of obligations of confidentiality.
7. Bribery and Corruption
   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 Laws on bribery and corruption; (ii) not do or omit to do anything likely to cause the other Party to be in breach of any of the referred to in (i); (iii) not give, promise, receive or request any bribes (financial or other advantage), including but not limited to in relation to any public official; (iv) maintain proportionate and effective anti-bribery compliance measures (including for gifts and hospitality), designed to ensure compliance with the law under clause (i), including the monitoring of compliance and detection of violations; and (v) reasonably assist the other Party, on that other Party’s reasonable request and expense, to comply with obligations related to bribery and corruption required by the law referred to in (i). The Supplier shall allow Vodacom, whether itself or through an agent, to conduct an audit of records and information held by the Supplier or its sub-contractors or any other relevant person in relation to the performance by the Supplier of its obligations under this Agreement. The Supplier shall only be paid by Vodacom, for goods delivered or services performed, by wire transfer or other traceable instrument to a bank account in the Supplier’s name. The Supplier shall promptly notify Vodacom of any allegation of fraud, bribery or corrupt practices made against the Supplier in court, arbitration or administrative proceedings, or if any investigation is commenced in respect of such allegations; at any time during the term of this Agreement.
8. Policies
   Supplier shall comply with Vodacom global supplier policies, as updated from time to time and available at http://www.Vodacom.com/policies, or such other site as notified by Vodacom, as amended and/or supplemented by any local Vodacom supplier policies referred to in the Country Terms.
9. Further Provisions
   9.1 Supplier shall insure against all foreseeable risks and liabilities which it may face in relation to the Order.
   9.2 The Supplier is not permitted to process, or handle in any way, any personal data in conjunction with the Order.
   9.3 Supplier shall not assign, novate, subcontract or otherwise transfer any of its rights or obligations under the Order without Vodacom’s prior written consent. Vodacom may assign, novate, subcontract or otherwise transfer any of its rights or obligations under the Order to any VGC.
   9.4 The Order will be governed by and construed in accordance with the law of the Kingdom of Lesotho.
   9.5 Any change to the Order and any waiver of rights thereunder may be made only by authorised representatives of the parties in writing (but for the avoidance of doubt not electronic mail).
   9.6 Any clauses in the Vodacom Purchase Terms or the Country Terms that are expressly stated, or by implication intended, to apply after termination will continue in full force and effect after such termination.
   9.7 In the event of any inconsistency between these Vodacom Purchase Terms, the Country Terms and any other documents issued in connection with the Order, the documents will prevail in the following order of precedence (highest level of precedence first, lowest last): (i) the Country Terms, (ii) these Vodacom Purchase Terms, (iii) the Purchase Order; (iv) any statement of work or work order; and (v) any other document.
10. Liability
    Except where liability cannot be lawfully limited or where stated by the Vodacom Purchase Terms to be without limitation, either party’s liability in relation to any claims relating to the Order shall be limited to the greater of the Price or M 1000, 000.00.
11. Indemnity
    Supplier indemnifies Vodacom for: (i) any alleged or actual infringement of intellectual property rights (including third-party intellectual property rights) or applicable software licence terms by or relating to the Products 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 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 these Vodacom Purchase Terms; and (viii) any loss arising from any act or omission of fraud or dishonesty. The Supplier’s liability under this indemnity shall be unlimited.
12. Compliance to Vodacom Policies
    1. For the purposes of Clause 8 of the Vodacom Purchase Terms, the Supplier shall comply with Vodacom’s local policies, as updated from time to time and available at

    www.vodacom.co.ls.

13. Sanctions and Export Regulations
    Both parties shall comply with all applicable United Kingdom, European and US sanctions and export regulations including any restrictions or prohibitions on trade or financial transactions with certain countries or entities. Either Party may terminate this Agreement (and/or any Purchase Order) on immediate written notice to the other Party if that other Party or any of its subcontractors: (a) breaches this clause; or (b) becomes subject to any sanctions.
14. Law and Jurisdiction
    The Order will be governed by and construed in accordance with the law of the Kingdom of Lesotho.
15. Definitions
    1. “Applicable Law” means all laws, legislation, regulations, binding codes of practice, or rules or requirements of any relevant government or governmental agency, professional or regulatory authority applicable to the Products and/or Services and their procurement;

    “Country Terms” means any additional terms applicable to the Purchase Order attached below;

    “New IPR” means intellectual property rights arising from the development, creation, modification or customisation of any new materials in the course of the provision of the Services;

    “Order” means the Purchase Order, 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);

    “Products” means any goods or other products (including software, documentation, and work products of any Services) purchased by Vodacom from Supplier under the Order;

    “Purchase Order” means the purchase order issued by Vodacom;

    “Services” means services purchased by Vodacom from Supplier under the Order;

    “Supplier” means the entity named as the Supplier on the Purchase Order;

    “Vodacom” means the Vodacom entity issuing the Purchase Order; and

    “VGC” means Vodacom Group Plc and any entity in respect of which Vodacom Group Plc owns (directly or indirectly) 15% or more of the issued share capital.

16. Vodacom and Supplier Details
    Vodacom details are as set out in the table below, as may be updated from time to time: