Terms and Conditions
GENERAL CONDITIONS OF PURCHASE
1. SOLE AGREEMENT
Unless otherwise agreed in writing these Conditions of Purchase, together with any purchase order (the “Order”) represent the only conditions upon which the Development Bank of Southern Africa (“DBSA”) will procure items or services (the “Supplies”) from any third party supplier (the “Supplier”). In the event of any inconsistency between these Conditions of Purchase and any contract, the provisions of the contract shall prevail.
In this Conditions of Purchase the terms below shall have the following meanings:
2.1 “CONDITIONS OF PURCHASE” means this agreement between the DBSA and the Supplier;
2.2 “THE DEVELOPMENT BANK OF SOUTHERN AFRICA LIMITED” a development funding institution reconstituted and incorporated in terms of the Development Bank of Southern Africa Act, No. 13 of 1997;
2.3 “DELIVERY” means delivery in accordance with the conditions of the Order at the stated delivery point;
2.4 “SUPPLIES” means the equipment, goods, items or materials to be delivered by the Supplier in terms of the Order;
2.5 “SUPPLIER” means the party with whom the DBSA places the Order and includes the Supplier’s successors and permitted assignees.
3. FIXED PRICE
The price stated in the Order shall be regarded as fixed and is invariable and not subject to adjustments unless otherwise agreed between the parties in writing.
4. DELIVERY TIME OR DATE
The delivery time or date stated in the Order shall be regarded as fixed and the Supplier shall adhere strictly thereto.
5. ORDER CONTROL NUMBER
The Order number stated in the Order shall be indicated clearly on all documentation and packaging.
6. CANCELLATION OF ORDER
Should the Supplier fail to deliver the Supplies at the time agreed to, or should he not comply with any other essential condition of the Order, the DBSA shall be entitled to cancel the Order summarily in writing, without any adverse cost implications for the DBSA.
7. DISPATCH OF SUPPLIES
The Supplier shall ensure that it the Supplies are dispatched to the address stated in the Order and transportation of the Supplies shall be at the Supplier’s risk.
The Supplier shall ensure that the Supplies shall in all respects be in accordance with the requirements and stipulations set out in the Order. All materials and consumable items shall be new and unused, unless otherwise agreed to in writing.
Save for consumables, the Supplier guarantees the workmanship and materials of the Supplies , that the Supplies and any components thereof will be free of any defects for a period of at least 12 (twelve) months after the acceptance thereof by the DBSA, reasonable wear and tear excepted.
Payment for the Supplies shall be made by the DBSA against an original tax invoice from the Supplier. Unless otherwise stipulated in the Order, payment for the Supplies shall be made within 30 (thirty) days of receipt by the DBSA of the original tax invoice, supported by proof of delivery stamped and signed by an authorized the DBSA employee at the delivery address stated in the Order.
All tax invoices shall contain the registered Value Added Tax (VAT) number of the Supplier, an Order number, item numbers, quantities in respect of which payment is claimed and the amount claimed by the Supplier.
11. CLAIMS FOR PAYMENT
All claims shall be submitted in the prescribed manner within 90 (ninety) days after finalisation of Delivery, in accordance with clause 10 (Payment), failing which the DBSA may, in its sole discretion, refuse to accept any claim.
12. STATUTORY COSTS
The price shall be exclusive of VAT and it must appear as a separate line item on the tax invoice.
13. LIABILITY FOR PATENT RIGHTS
The Supplier herewith indemnifies the DBSA and holds it harmless in respect of any claims arising from infringement or alleged infringement of patents, trademarks and other protective rights of a similar nature.
14. LIABILITY FOR COSTS, DAMAGES OR EXPENSES
The DBSA may deduct all costs, damages or expenses, or any other amount for which the Supplier is liable in terms of the contract, from moneys due to or becoming due to the Supplier in terms of any contract between the Supplier and the DBSA. The DBSA is herewith irrevocably and in rem suam authorised thereto.
15. THE DBSA’s RIGHTS
No amount paid by the DBSA in settlement of an account, nor postponement of the delivery or completion date as may be granted by the DBSA, shall affect or prejudice the DBSA’s rights against the Supplier, nor relieve the Supplier of his obligations, nor be interpreted as approval of the Supplies delivered.
16. DISCLOSURE OF INFORMATION
The existence of this Conditions of Purchase will not be confidential but the Supplier may not, save for a professional advisor, make known any information concerning this Conditions of Purchase to anyone, including the press, without the DBSA’s written approval.
17. RESPONSIBILITY FOR DEVIATIONS
The Supplier shall accept responsibility for any deviation from the Order arising from a misunderstanding or incorrect information, irrespective of how it was obtained, except for any incorrect information provided by the DBSA to the Supplier in writing.
18. AMENDMENT OF ORDER
No amendment or change to the Order shall be permitted without the written approval of the DBSA.
19. CESSION OF CONTRACTS
The Supplier may not, without the prior written approval of the DBSA, cede, delegate, relinquish or transfer to anyone his rights and/or obligations in terms of this Conditions of Purchase. The DBSA reserves the right to cede, delegate or transfer to a third person its rights or obligations in terms of the Conditions of Purchase, subject to such conditions as the DBSA may deem appropriate.
20. PACKING OF MATERIALS
Containers and packing materials are not returned to the Supplier. Packaging of stock items delivered to the DBSA stores must be clearly labeled with the item number and number of units in each container.
Any dispute that may arise in connection with the execution and/or interpretation of an Order is settled finally by one arbitrator, appointed by the parties and in accordance with the Arbitration Act, Act No. 42 of 1965. The parties shall choose Johannesburg as the place of arbitration.
The DBSA may terminate this Conditions of Purchase forthwith or, at its option, seek performance by any such appointed person if: (a) the Supplier passes a resolution for its winding-up or a court of competent jurisdiction makes an order for the Supplier to be wound up or dissolved or the Supplier is otherwise dissolved; or (b) an administrator is appointed or an administration order is made in relation to the Supplier or a receiver or an administrative receiver is appointed over, or an encumbrancer takes possession of or sells the whole or part of the Supplier’s undertaking, assets, rights or revenue; or (c) the Supplier is unable to pay its debts or is deemed unable to pay its debts within the meaning of the Insolvency Act; or (d) the Supplier enters into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or takes steps to obtain a moratorium or makes an application to a court of competent jurisdiction for protection from its creditors. For the avoidance of doubt, the DBSA shall not be entitled to terminate this Conditions of Purchase pursuant to this term where a resolution by the Supplier or court order that the Supplier be wound up is for the purpose of a bona fide reconstruction or amalgamation.
24. AFTER SALES SERVICE
The Supplier shall provide replacement parts necessary to ensure the uninterrupted operation of the Supplies supplied for a period of 5 (five) years from delivery of any particular item of the Supplies and if requested by the DBSA, it shall make these parts available to a third party maintainer of the DBSA’s choice at the same price as if the parts had been supplied to the DBSA. The Supplier undertakes to provide a maintenance service for the Supplies, should the DBSA so request, on terms to be agreed. If this Conditions of Purchase so indicates, the Supplier will provide a warranty service for the Supplies to a level agreed with the DBSA.
25. NOTICES and DOMICILIUM
Notices under these terms shall be delivered by hand to the relevant address overleaf or sent to them by registered mail or may be served by facsimile to the number overleaf with confirmation by registered mail in which event notice shall be deemed served on receipt by the sender of such confirmation.
This Conditions of Purchase shall be governed and interpreted in accordance with the law of the Republic of South Africa and shall be subject to the jurisdiction of the South African courts to which the Supplier hereby irrevocably submits but without prejudice to the DBSA’s right to take proceedings against the Supplier in other jurisdictions.
Headings are included in this Conditions of Purchase for convenience only.
If any term herein be held illegal or unenforceable, the validity or enforceability of the remaining terms shall not be affected.
No failure or delay by the DBSA to enforce any rights under this Conditions of Purchase will operate as a waiver thereof by the DBSA.
All rights and remedies available to the DBSA under this Conditions of Purchase shall be in addition to, not to the exclusion of, rights otherwise available at law.